`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`Civil Action No. 1:21-cv-00896-ADA
`
`FINTIV, INC.,
`
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`Defendant.
`
`ORDER ON EMERGENCY MOTION [ECF NO. 431]
`
`On this day, came on for consideration Plaintiff Fintiv, Inc.’s Emergency Motion for
`
`Reopening Discovery, Trial Continuance, and Sanctions. ECF No. 431 (“Emergency Motion”).
`
`The Court having considered Fintiv’s moving papers and Apple’s response, ECF No. 437
`
`(“Opposition”), the authorities cited in the parties’ briefs, the exhibits attached thereto, and the
`
`arguments of counsel, hereby rules as follows:
`
`1.
`
`Fintiv’s motion for a trial continuance is hereby GRANTED. The Court will
`
`reschedule trial in this matter following the completion of the bilateral, limited
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`fact discovery ordered below, and any resulting motion practice.
`
`2.
`
`Fintiv’s motion to reopen discovery is hereby GRANTED-IN-PART to the
`
`extent the Court orders additional limited bilateral discovery. The Court orders the
`
`following with respect to further discovery in this matter:
`
`a.
`
`Fintiv will be permitted to take the depositions of Apple employee Ben
`
`Vigier, former Apple employee Pascal Caillon, and former Apple
`
`employee Charles Buchbinder. As to Mr. Caillon and Mr. Buchbinder,
`
`
`
`Case 1:21-cv-00896-ADA Document 441 Filed 07/05/22 Page 2 of 3
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`Apple will endeavor to secure their voluntary attendance at depositions,
`
`but failing that, Fintiv may serve subpoenas on each individual to secure
`
`their deposition attendance.
`
`b.
`
`Apple is ordered to produce the documents, including emails, identified in
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`Apple’s Opposition.
`
`c.
`
`Fintiv is ordered to produce the documents, including invoices, identified
`
`in the Emergency Motion.
`
`d.
`
`Apple will be permitted to take the deposition of former CorFire employee
`
`George Eubank. Fintiv will endeavor to secure his voluntary attendance at
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`a deposition, but failing that, Apple may serve a subpoena on Mr. Eubank
`
`to secure his deposition attendance.
`
`e.
`
`To the extent either party wishes to depose any additional witnesses but
`
`the other party opposes, the former shall contact the Court to request leave
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`to conduct additional depositions.
`
`f.
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`Both parties are ordered to conduct additional searches through limited
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`sets of email and ESI using custodians and search terms agreed to by the
`
`parties, and to produce nonprivileged results of those email/ESI searches
`
`to the other side. Unless otherwise agreed to by the parties, the time
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`period for searching of email/ESI shall be limited to the calendar years
`
`2011 through 2016. If the parties are unable to agree upon the parameters
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`of such custodians, searches and productions, the issues shall be referred
`
`to Magistrate Judge Gilliland for resolution.
`
`
`
`Case 1:21-cv-00896-ADA Document 441 Filed 07/05/22 Page 3 of 3
`
`3.
`
`The Court further ORDERS that any additional motion practice shall be
`
`addressed with the Court after the completion of the discovery ordered above.
`
`This includes motions related to leave to amend pleadings, expert reports, and
`
`pretrial disclosures. It also includes any motions to reconsider rulings made
`
`during the September 2021 pretrial conference.
`
`4.
`
`Fintiv’s motion for sanctions is hereby DENIED as to the requested Rule 37
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`death penalty sanctions. The Court will address any application related to
`
`attorneys’ fees and/or costs by either party after the conclusion of trial in this
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`matter. The Court will address any application related to a jury instruction
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`regarding an adverse inference of Apple’s suppression and/or concealment of
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`evidence during the jury charge process.
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`SIGNED THIS 5th day of July, 2022.
`
`_____________________________________
`THE HONORABLE ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
`
`
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