WI-LAN'S OPPOSITION TO INTEL'S MOTION TO SHORTEN TIME - PDF by ejl20173

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									     Case 5:08-cv-04555-JW          Document 140      Filed 04/15/2009   Page 1 of 5



      Robert A. Cote (Admitted pro hac vice)
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      rcote@mckoolsmith.com
 2    Gayle Rosenstein Klein (State Bar No. 237975)
      gklein@mckoolsmith.com
 3    MCKOOL SMITH P.C.
      399 Park Avenue, Suite 3200
 4    New York, NY 10022
 5    Telephone: (212) 402-9400
      Facsimile: (212) 402-9444
 6
      Michael G. McManus (Admitted pro hac vice)
 7    mmcmanus@mckoolsmith.com
      MCKOOL SMITH P.C.
 8    1700 K Street, N.W., Suite 740
 9    Washington, D.C. 20006
      Telephone (202) 370-8300
10    Facsimile: (202) 370-8344

11    ATTORNEYS FOR SPECIALLY APPEARING
      DEFENDANT WI-LAN INC.
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13                              UNITED STATES DISTRICT COURT
14                             NORTHERN DISTRICT OF CALIFORNIA

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      INTEL CORPORATION,                                  Case No. 5:08-cv-4555 JW (HRL)
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                       Plaintiff,                        WI-LAN’S OPPOSITION TO
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                                                         INTEL’S MOTION TO SHORTEN
      v.
18                                                       TIME FOR HEARING ON INTEL’S
      WI-LAN, INC., WI-LAN TECHNOLOGIES                  MOTION TO COMPEL
19    CORPORATION, WI-LAN TECHNOLOGIES,                  DISCOVERY RELEVANT TO WI-
      INC., and WI-LAN V-CHIP CORP.,                     LAN’S MOTION TO DISMISS
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                       Defendants.
21                                                       Honorable James Ware
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     Case 5:08-cv-04555-JW          Document 140          Filed 04/15/2009    Page 2 of 5



 1            Pursuant to Local Rule 6-3(c), Defendant Wi-LAN, Inc. (“Wi-LAN”) submits this
 2    Opposition to Intel Corporation’s Motion to Shorten Time Pursuant to Civil L.R. 6-3(a) to April
 3    22, 2009 or Another Time Prior to May 1, 2009 for Hearing on Intel’s Motion to Compel
 4    Discovery Relevant to Wi-LAN’s Motion to Dismiss/Transfer (“Motion to Shorten Time”). Intel
 5    requests that Wi-LAN’s Opposition Brief to Intel’s Motion to Compel be due April 17, 2009
 6    (two days from now). Wi-LAN opposes this shortened time on the basis that Intel has needlessly
 7    delayed its motion for several weeks and that such delay would inure to Wi-LAN’s detriment.
 8    Indeed, Intel’s delay in filing, followed by its request for expedited briefing, appears calculated
 9    to require Wi-LAN to submit two filings on the same day.
10            The present motion practice is centered upon Wi-LAN’s pending motion to dismiss or
11    transfer the instant case. Some weeks ago, in an attempt to remove a source of contention and to
12    narrow the jurisdictional discovery burden upon the parties, Wi-LAN withdrew personal
13    jurisdiction and improper venue as grounds for its motion to dismiss. Despite this, Intel has
14    persisted in its demands that Wi-LAN respond to discovery concerning personal jurisdiction. In
15    fact, Intel has not narrowed its discovery requests in any way in response to Wi-LAN’s
16    withdrawal of its personal jurisdiction and venue arguments. It has simply fashioned new
17    arguments for the relevance of the requests.
18            On March 24, 2009, counsel for Wi-LAN met and conferred with counsel for Intel. See
19    McManus Decl. ¶ 2. The parties discussed Wi-LAN’s document production, and Intel took the
20    position that Wi-LAN’s production was insufficient. See id. ¶ 3. Counsel for Intel indicated that
21    they were likely to file a motion to compel discovery. See id. Subsequently, on March 26, 2009,
22    Intel’s counsel sent an electronic mail to Wi-LAN’s counsel proposing a briefing schedule for
23    Intel’s motion to compel discovery, and indicating that Intel planned to file its motion no later
24    than March 27, 2009. See Taylor Decl., Exh. C. Intel, however, delayed a full two weeks until
25    April 10, 2009, before filing its Motion to Compel and its Motion to Shorten Time. If an
26    expedited schedule was necessary for Intel’s Motion to Compel, Intel should not have delayed its
27    filing by two weeks. Intel should not now be allowed to compensate for its delay by requesting
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      WI-LAN’S OPPOSITION TO INTEL’S MOTION TO SHORTEN TIME                      Case No. 5:08-cv-4555 JW (HRL)
      Dallas 275799v1                                     1
     Case 5:08-cv-04555-JW          Document 140          Filed 04/15/2009       Page 3 of 5



 1    an expedited schedule. This is particularly so where Intel’s proposed schedule acts to Wi-LAN’s

 2    prejudice.

 3            Intel’s proposed schedule would require Wi-LAN to respond to the motion to compel on

 4    the same day that it must file a reply in support of its motion to dismiss the instant action. Intel’s

 5    proposed date for Wi-LAN’s Opposition of April 17, 2009, is the same date that Wi-LAN’s

 6    Reply in Support of its Motion to Dismiss is now due. On April 10, 2009, the Court issued its

 7    Order Denying Motion for Leave to Extend Page Limit; Granting Motion to File Under Seal;

 8    Granting Leave to File Reply; Denying Stipulation to Extend Page Limit. See Dkt. No. 110.

 9    Intel served Wi-LAN with its Amended Opposition to Wi-LAN’s Motion to Dismiss effective

10    April 13, 2009, and Wi-LAN’s reply is now due on April 17, 2009. Moreover, Intel’s Motion to

11    Compel and Amended Opposition to Wi-LAN’s Motion to Dismiss were both filed during a

12    holiday weekend. Thus, under the circumstances, Intel’s motion is not warranted, nor is it

13    necessary.

14            Contrary to Intel’s arguments, Intel’s Motion to Compel is irrelevant to Wi-LAN’s

15    Motion to Dismiss because the subject requests were plainly intended to inquire into personal

16    jurisdiction and Wi-LAN has withdrawn the portion of its motion related to personal jurisdiction.

17    Intel’s revised theory as to the relevance of the requests at issue concerns the convenience factors

18    considered in connection with a transfer motion.           Where, however, a transfer motion is

19    predicated upon the first to file rule, as it is here, such argument must be made to the first filed

20    court (here, the Texas court). See, e.g., Z-Line Designs Inc. v. Bell’O Intern., LLC, 218 F.R.D.

21    663, 665 (N.D. Cal. 2003) (“The balance of convenience should normally be weighed by the

22    court in the first filed action.”). That is, even under Intel’s current theory, the evidence that Intel

23    seeks will not be considered by this Court and is therefore irrelevant.

24            Moreover, Wi-LAN has responded to Intel’s discovery in good faith. Indeed, Wi-LAN’s

25    production was substantially larger than Intel’s production ─ Wi-LAN produced 23,088 pages

26    while Intel only produced 6,729 pages. See McManus Decl. ¶ 5.

27            For the foregoing reasons, Wi-LAN respectfully requests that the Court deny Intel’s

28    Motion to Shorten Time.

      WI-LAN’S OPPOSITION TO INTEL’S MOTION TO SHORTEN TIME                         Case No. 5:08-cv-4555 JW (HRL)
      Dallas 275799v1                                     2
     Case 5:08-cv-04555-JW          Document 140          Filed 04/15/2009        Page 4 of 5



      Dated: April 15, 2009                                   Respectfully submitted,
 1

 2                                                            By: /s/ Michael G. McManus
                                                                  Robert A. Cote (Admitted pro hac vice)
 3                                                                rcote@mckoolsmith.com
                                                                  Gayle Rosenstein Klein
 4                                                                (State Bar No. 237975)
                                                                  gklein@mckoolsmith.com
 5
                                                                  MCKOOL SMITH P.C.
 6                                                                399 Park Avenue, Suite 3200
                                                                  New York, NY 10022
 7                                                                Telephone: (212) 402-9400
                                                                  Facsimile: (212) 402-9444
 8
                                                                 Michael G. McManus (Admitted pro hac
 9
                                                                 vice)
10                                                               mmcmanus@mckoolsmith.com
                                                                 MCKOOL SMITH P.C.
11                                                               1700 K Street, N.W., Suite 740
                                                                 Washington, D.C. 20006
12                                                               Telephone (202) 370-8300
                                                                 Facsimile: (202) 370-8344
13

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                                                              ATTORNEYS FOR DEFENDANTS WI-LAN
15                                                            INC., WI-LAN TECHNOLOGIES
                                                              CORPORATION, WI-LAN
16                                                            TECHNOLOGIES, INC., and WI-LAN V-
                                                              CHIP CORP.
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      WI-LAN’S OPPOSITION TO INTEL’S MOTION TO SHORTEN TIME                             Case No. 5:08-cv-4555 JW (HRL)
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     Case 5:08-cv-04555-JW          Document 140          Filed 04/15/2009      Page 5 of 5



                                        CERTIFICATE OF SERVICE
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              I hereby certify that on April 15, 2009, a true and correct copy of the foregoing WI-
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      LAN’S OPPOSITION TO INTEL’S MOTION TO SHORTEN TIME FOR HEARING ON
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      INTEL’S MOTION TO COMPEL DISCOVERY RELEVANT TO WI-LAN’S MOTION TO
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      DISMISS was filed electronically with the Clerk of the Court using CM/ECF System. Notice of
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      this filing will be sent by operation of the Court’s electronic filing system to all parties indicated
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      on the electronic filing receipt. Parties may access this filing through the Court’s electronic filing
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      system.
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                                                          By: /s/ Michael G. McManus
10                                                               Michael G. McManus
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      WI-LAN’S OPPOSITION TO INTEL’S MOTION TO SHORTEN TIME                        Case No. 5:08-cv-4555 JW (HRL)
      Dallas 275799v1                                     4

								
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