jason p. gonzalez (sbn 178768) nixon peabody, llp floor los … · 2019-07-26 · 4830-3155-7202.2...

4830-3155-7202.2

STATUS REPORT AND REQUEST FOR TRIAL DATE 2:13-CV-07764-FMO-AGRx

- 1 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Jason P. Gonzalez (SBN 178768) Shawn G. Hansen (SBN 197033) Jessica N. Walker (SBN 275398) Neal J. Gauger (SBN 293161) NIXON PEABODY, LLP 300 S. Grand Avenue, 41st Floor Los Angeles, California 90071 Telephone: (213) 629-6019 Facsimile: (213) 629-6000 Email: [email protected]

[email protected] [email protected] [email protected]

Attorneys for Plaintiff YARDI SYSTEMS, INC.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

YARDI SYSTEMS, INC.

Plaintiff,

vs.

PROPERTY SOLUTIONS INTERNATIONAL, INC.

Defendant.

PROPERTY SOLUTIONS INTERNATIONAL, INC.,

Counter-Claimant,

vs.

YARDI SYSTEMS, INC. Counter-Defendant

Case No. 2:13-CV-07764-FMO-AGR

STATUS REPORT AND REQUEST FOR TRIAL DATE OF PLAINTIFF YARDI SYSTEMS; DECLARATION OF JASON P. GONZALEZ

Complaint filed: 10/21/13

Trial date: Not set

Case 2:13-cv-07764-FMO-AGR Document 291 Filed 11/03/17 of 56 Page ID #:12747

4830-3155-7202.2


- 2 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

I. INTRODUCTION

Plaintiff Yardi Systems respectfully submits this report to update the Court on the

status of this matter, and to request that the Court set a trial date of March 12, 2018, or as

soon thereafter as is convenient for the Court and the parties.1 As the Court recalls, this

matter was most recently set for trial on January 10, 2017. At the December 16, 2016

pretrial conference, the Court stated that it was unavailable on January 10, but likely

would reset the trial for a date between April and June 2017, would set a time limit of

eight hours of jury time per side, and would set a vigorous meet-and-confer and pretrial

conference schedule to enable the parties to significantly narrow the issues. The Court

also referred the case to mediation, which was unsuccessful.

In April, July, and October 2017, Yardi proactively sought to meet-and-confer with

Entrata in an effort to narrow the trial and address the many issues the Court raised during

the December 16 pretrial conference. Entrata refused each time. Yardi therefore

informed Entrata on October 27, 2017 that, in light of the passage of time, Yardi intended

to make this request to the Court for a trial date. The parties met-and-conferred on

November 1, 2017, and Yardi understands from that conference that Entrata opposes this

request, preferring that the parties wait until discovery is completed in the Utah antitrust

case (discussed below) before requesting a trial date in this case. Given that this case has

been pending since October 2013, and that Entrata’s proposal likely would entail

significant additional delay, Yardi respectfully requests that trial and a corresponding

pretrial schedule be set as described below.

1 During the meet-and-confer regarding Yardi’s impending request for a trial date, Yardi specified that it planned to request March 12, 2018. Entrata never indicated whether there were any scheduling concerns related to that date. To the extent there are legitimate scheduling issues, Yardi is of course willing to work with Entrata and the Court to determine the soonest available date thereafter. Yardi understands that Entrata intends to make a filing in response to this Submission.


4830-3155-7202.2


- 3 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

II. PROCEDURAL HISTORY

Yardi filed its initial complaint on October 21, 2013, and its operative First

Amended Complaint (“FAC”) on April 4, 2014. The FAC alleges causes of action for:

(1) copyright infringement; (2) misappropriation of trade secrets; (3) intentional

interference with contractual relations; (4) breach of express contract; (5) breach of

implied contract; and (6) violation of the Digital Millennium Copyright Act (“DMCA”).

Yardi brought these claims because, in short, Entrata misappropriated a copy of Yardi’s

flagship “Voyager” software application and used it to make sales demonstrations of

Entrata’s competing website “portal” software, and to build competing accounting

software called “Entrata Core.”

The evidence supporting Yardi’s claims includes Entrata’s repeated admissions in

discovery that Entrata obtained a copy of Yardi’s Voyager software through mutual

clients; that it accessed this Voyager copy “hundreds” of times; and that this access was

by Entrata’s software development team in Utah and in India, and by members of

Entrata’s sales team, who used Voyager in sales demonstrations at every opportunity.

Yardi’s evidence also consists of documents and notes written by Entrata software

developers (including Entrata’s CEO, David Bateman) in which they openly discussed

their ongoing analysis of Voyager as they built competing software, as well as Entrata

software development documents that copied—verbatim—Yardi’s user interface, logic,

workflow, and other confidential information. Yardi’s evidence also includes CEO

Bateman’s admission, in his deposition, that at the very time Yardi was repeatedly asking

Bateman and other Entrata senior executives if Entrata somehow had obtained a copy of

Voyager, and Entrata was heatedly denying it, Bateman personally hand-carried the

Entrata server carrying Entrata’s stolen copy of Voyager from Entrata’s headquarters in

Utah to Entrata’s software development team in Pune, India.

On April 15, 2015, Entrata filed a motion for summary judgment based primarily

on a statute of limitations argument. On June 3, 2015, Yardi submitted an ex parte


4830-3155-7202.2


- 4 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

application to continue or, alternatively, for denial of Entrata’s motion due to Entrata’s

discovery misconduct—specifically, Entrata’s failure to produce key emails that directly

refuted Entrata’s statute of limitations claims. On June 5, 2015, the Court granted Yardi’s

motion in part, denying Entrata’s summary judgment motion without prejudice, and

ordering further discovery to address Entrata’s discovery misconduct.

At the parties’ request, on June 23, 2015, the Court stayed the matter so that

settlement discussions before former Magistrate Judge Woehrle could occur. On

September 4, 2015, again at the parties’ request, the Court lifted the stay and set

deadlines. Present counsel substituted into this case on September 16, 2015.

On December 15, 2015, Entrata filed a renewed summary judgment motion, again

based primarily on a statute of limitations argument. Yardi opposed on January 5, 2016,

and Entrata replied on January 26, 2016. In a September 19, 2016 order, the Court denied

Entrata’s summary judgment motion as to all but the intentional interference with

contractual relations and DMCA claims. Yardi’s copyright infringement, breach of

express contract, breach of implied contract, and misappropriation of trade secrets claims

therefore remain.

Also on September 19, 2016, this Court issued an order setting trial for January 10,

2017, and a pretrial conference for December 16, 2016. Subsequently, the parties filed

their pretrial documents. These included Yardi’s motions in limine to exclude: (a) the

testimony of Entrata’s damages expert, Melissa Bennis; (b) improper legal conclusion

testimony Entrata obtained, over Yardi’s objection, in the deposition of Yardi’s CEO;

(c) any software evidence not disclosed in discovery; and (d) evidence or argument

regarding withdrawn trade secret allegations. Entrata likewise filed motions in limine:

(a) to exclude the testimony of Yardi’s damages expert, Justin Lewis; (b) to enforce the

parties’ June 16, 2014 stipulation regarding the scope of Yardi’s copyright infringement

and trade secrets claims; and (c) to exclude trade secret allegations that, according to

Entrata, were not timely disclosed.


4830-3155-7202.2


- 5 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

On December 16, 2016, the Court held a pretrial conference.2 The Court stated

that the trial date of January 10, 2017 would be taken off calendar, as the Court no longer

was available. The Court urged the parties to consider consenting to trial before a

magistrate, and ordered that the parties each submit a letter by December 20 stating

whether that party consented. The Court also stated that, if the case remained with the

Court, the trial likely would be set between April and June 2017, the Court would limit the

trial to no more than eight hours before the jury and two hours before the bench, and that

the Court would set a rigorous pretrial meet-and-confer schedule and hold a series of

pretrial conferences to limit the issues in the case. The Court then provided the parties

with guidance regarding the parties’ filings, but declined to rule on the motions in limine,

which remain pending.

Both parties did not consent to having the case heard before a magistrate. On

January 11, 2017, the Court ordered the parties to complete mediation by no later than

March 31, 2017. The parties held a mediation before the Honorable Magistrate Judge

Nagle (retired), but were unable to resolve the matter.

III. YARDI’S EFFORTS TO MEET AND CONFER WITH ENTRATA TO

NARROW THE ISSUES

Mindful of the Court’s extensive comments during the December 2016 pretrial

conference regarding narrowing the trial issues, Yardi repeatedly sought to meet and

confer with Entrata over the next several months. While the Court did not specifically

order the parties to engage in this meet-and-confer, Yardi understood the Court’s message

at the pretrial conference to be that the Court expected the parties to significantly limit the

issues before trial. In April 2017, Yardi therefore contacted Entrata to initiate a meet-and-

confer discussion regarding the issues the Court raised. Entrata declined to participate.

Yardi’s counsel tried again on July 12, 2017, specifically proposing a schedule in which

2 For the Court’s convenience, a copy of the transcript is attached hereto as Exhibit A.


4830-3155-7202.2


- 6 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the parties would seek to resolve their differences regarding the pretrial conference order,

jury instructions, the special verdict form, exhibit lists, stipulated facts, and confidentiality

designations. Entrata again refused, stating it was “premature” to engage in such

discussion before the Court set a trial date or pretrial schedule. More recently, on

October 27, Yardi wrote Entrata again, and again proposed that the parties meet-and-

confer regarding those same issues. Entrata refused, repeating its claim that it was

“premature” to discuss these issues, and accusing Yardi of “gamesmanship” in attempting

to “move the California case ahead of the Utah action.” (See attached Exhibit B).

IV. ENTRATA’S UTAH LAWSUIT AGAINST YARDI

As the Court recalls, Entrata filed an antitrust suit against Yardi on February 15,

2015 in the District of Utah (CV-15-102-CW-PMW). There is significant factual

overlap between the instant case and Entrata’s newer antitrust case. Among other

things, Entrata alleges in the Utah lawsuit that much of the same conduct at issue in

the California lawsuit constitutes evidence of anticompetitive conduct by Yardi,

including much of Yardi’s actions regarding Entrata’s custom interface. Entrata

further alleges in the Utah case that Yardi violated the same 2006 Non-Disclosure

Agreement that Yardi alleges in this case that Entrata violated.

Fact discovery in the Utah case is underway, with a discovery cut-off

currently set for November 21, 2017. Expert discovery is set to close on March 9,

2018, with dispositive motions set for March 16, 2018. “Trial readiness” is set for

June 2018. Entrata in the past several weeks has served 43 subpoenas on customers

and other third parties, resulting in the production to date of over 89,000 third party

documents. Eleven of these subpoenas were served the week of October 23,

meaning that the resulting document productions almost certainly will occur after

the depositions (currently set to take place in November and early December 2017)

are well underway. Entrata itself has produced a significant portion of its own

documents on or after the “substantial completion” date, making it essentially


4830-3155-7202.2


- 7 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

impossible for Yardi to review all the produced material before the depositions are

scheduled to begin. Yardi therefore currently intends to request that the Court in

Utah extend the discovery deadlines.

V. REQUEST FOR TRIAL DATE AND PRETRIAL SCHEDULE

Yardi filed this case in October 2013 and has been vigorously prosecuting it

since then, through the pretrial conference December 2016. The parties repeatedly

have attempted to resolve the matter but have been unsuccessful. Yardi has reached

out in writing to Entrata repeatedly, including in April, July, and October 2017, to

invite Entrata to proactively work with Yardi on the pretrial issues the Court

discussed during the December 2016 pretrial conference. Each time, Entrata

declined.

Yardi therefore respectfully asks that the Court set this matter for trial on

March 12, 2018, or as soon thereafter as is convenient for the Court. Yardi also

requests that the Court consider setting a pretrial schedule including the following:

• November 13, 2017: Yardi provides Entrata a proposed revised Pretrial Conference Order

• November 20, 2017: Entrata provides comments and revisions to Yardi regarding the Pretrial Conference Order

• November 20, 2017: Entrata provides its position, supported with relevant caselaw authority, regarding the Counterclaims

• December 1, 2017: The parties meet-and-confer regarding the Pretrial Conference Order

• December 11, 2017: The parties exchange jury instructions and proposed special verdict forms, revised to reflect the Court’s comments (see, e.g., Transcript at 13-14, 17-19)


4830-3155-7202.2


- 8 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

• December 18, 2017: The parties exchange revised exhibit lists tailored to the Court’s statements that the parties will have no more than eight hours a side for trial

• December 18, 2017: Yardi proposes 50 additional stipulated facts (see Transcript 15: 9-21)

• January 5, 2018: The parties meet-and-confer regarding the revised jury instructions and special verdict forms

• January 5, 2018: Entrata proposes 50 additional stipulated facts

• January 22, 2018: The parties meet-and-confer regarding the proposed Confidential and AEO trial exhibits (see Transcript at 13: 4-5 (“And even if the two of you agree that something should be sealed . . . be prepared, I probably won’t do it. You’re going to really have to make a showing under the law. Obviously, the presumption is that once you go to trial, everything is open. . . I really want to encourage you to meet and confer on the exhibits that are going to be sealed”) and stipulated facts

• February 2, 2018: Pretrial conference

Yardi submits that this proposed schedule will allow the parties to work diligently

toward agreement on the pretrial issues the Court discussed at the December 2016

pretrial conference and allow for a trial date in near future. As this case has been

/ / /

/ / /

/ / /


4830-3155-7202.2


- 9 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

pending since October 2013, Yardi believes that setting a trial promptly, but with

due regard for the Court’s schedule and case management expectations, is

appropriate.

Respectfully submitted,

Dated: November 3, 2017

NIXON PEABODY LLP

/s/ Jason P. GonzalezJason P. Gonzalez Shawn Hansen Jessica N. Walker Neal J. Gauger Attorneys for Plaintiff YARDI SYSTEMS, INC.


4830-3155-7202.2


- 11 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

EXHIBIT A


L i s a M . G o n z a l e z , O f f i c i a l R e p o r t e r

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

THE HON. JUDGE FERNANDO M. OLGUIN, JUDGE PRESIDING YARDI SYSTEMS, INC., ) ) Plaintiff, ) ) vs. ) NO. 13-CV-7764-FMO ) PROPERTY SOLUTIONS INTERNATIONAL, )INC., )

) Defendant. )___________________________________)

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Los Angeles, California

Friday, December 16, 2016

LISA M. GONZALEZ, CSR No. 5920, CCRR U.S. District Courthouse

350 West 1st Street - Suite 4455 Los Angeles, California 90012

213.894.2979 www.lisamariecsr.com

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



APPEARANCES:

FOR THE PLAINTIFF: NIXON, PEABODY LLP BY: JASON GONZALEZ, ESQ. SHAWN G. HANSEN, ESQ.

JESSICA N. WALKER, ESQ. 300 South Grand Avenue

Suite 4100 Los Angeles, California 90071

(213) 629-6019/6190/6135

YARDI BY: BRADY M. BUSTANY, ESQ. 430 South Fairview Avenue Santa Barbara, California 93117 (805) 699-2040

FOR THE DEFENDANT: MORRISON, FOERSTER BY: ERIC ACKER, ESQ. JOHN R. LANHAM, ESQ.

CHRISTIAN G. ANDREU-VON EUW 12531 High Bluff Drive Suite 100 San Diego, California 92130-2040 (858) 720-5126

BY: MICHAEL A. JACOBS, ESQ. 425 Market Street San Francisco, California 94105-2482 (415) 268-7455

BY: MARY PRENDERGAST 2000 Pennsylvania Avenue, NW, Suite 6000 Washington, D.C. 20006-1888 (202) 887-8757

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


3


Los Angeles, California; Friday, December 16, 2016;

10:00 A.M.

-o0o-

THE CLERK: Calling Item Number 1, CV-13-7764,

Yardi Systems, Inc., versus Property Solutions

International, Inc.

Counsel, please state your appearance.

MR. GONZALEZ: Good morning, Jason Gonzales from

Nixon, Peabody for plaintiff, Yardi Systems. With me is

Brady Bustany, Assistant General Counsel of Yardi; Sean

Hansen from Nixon, Peabody; and Jessica Walker of Nixon,

Peabody.

MR. ACKER: Good morning, Your Honor. Eric Acker

of Morrison, Foerster, on behalf of defendant Property

Solutions.

MR. JACOBS: Michael Jacobs, Your Honor.

MS. PRENDERGAST: Good morning, Your Honor. Mary

Prendergast.

MR. ANDREU-VON EUW: Good morning, Christian

Andreu-Von Euw.

MR. LANHAM: John Lanham. Good morning, Your

Honor.

THE COURT: Okay. So we're here for a pretrial

conference. Let's see. A couple of things I want to

explore with you guys is whether the parties are amenable to

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


4


consenting to a magistrate judge. I'm not going to be able

to do this trial in January. I think, given the court's

case load, the number of criminal matters, I don't

anticipate getting to it until the spring. And so I'm a big

proponent of encouraging parties to at least consider

consenting to magistrate judges.

What I'll do is I'll have you, by next Tuesday,

submit a letter. You can email the letter, too. You don't

have to file it. It's not part of the record. It just

answers two questions: One, whether you'll consent; and

two, if so, a list of three magistrate judges you would

consider consenting to.

We do have on the Web site -- this isn't -- we

have what's called a Voluntary Consent Program, and I

believe we have about 12 or 13 magistrate judges on there

who are willing to accept any consents, any and all

consents. And if there's someone that you'd like that isn't

on the list, you can still include them, and I can possibly

reach out to them and see if they're willing to take it.

We do have a couple of new magistrate judges who

come from very strong IP backgrounds. Judge MacKinnon. I

think he was at -- I want to say Kirkland. He was a big IP

partner there.

And then Judge Standish, also IP. I think patent

is her background. She was also -- I also know that she

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


5


would take these cases and be very interested in it.

And I think that the reason -- there are a lot of

benefits to -- I feel there's a lot of benefits to

consenting to magistrate judges. Maybe I'm biased as a

former magistrate judge, but they are -- you'll get a

definite time, a date and time, so for those of you who are

out of town, it will certainly be easier.

I will put you in on whatever date I can, and even

then, you may be trailing a criminal case, so I won't -- you

know, I'll do what I can. And when I set a date, I won't

really be considering your calendars. I'll be considering

my calendar, and you'll just have to make it. An army of

lawyers here, so I'm sure somebody will show up. Or with

the magistrate judge, they will work around your schedule.

And then they will give you a lot more time than I

will give you, a lot more time. Well, we can sort of go

into that now, because I -- maybe I should tell you about --

and I'm sure those of you who do patents read this case. I

should tell you about a case that I did, Alfred Mann versus

Cochlear. I'm sure some of you are familiar with that case.

I'll tell you that in my old courtroom -- this is only my

second day in this courtroom -- but in my old courtroom, I

had a big anteroom, as well as the back of the courtroom.

And the lawyers in that case asked me if they -- they

brought in a company and they set up shelving all in the

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


6


anteroom and in the back of the courtroom. That's how big

of a case it was.

In the end, it was four electrical engineering

patents, very complicated case, and far more complicated

than this case, and I gave them eight hours for the jury and

two hours for the bench. So guess how much you're going to

get? And it's far more complicated than this case. They

didn't have any issues. They got the trial done. It was

$135-million verdict for the plaintiff, which I took away.

And just recently I think I invalidated three of

the patents of the claims and the Federal Circuit affirmed

on two, and it reversed on the other one. Considering it

was the first time I had ever done patents, I felt pretty

good about it.

One thing to think about in considering consenting

is -- and if you want, I can give you cites. I can give you

copies. There's no way you're getting more time than Alfred

Mann got. This case is not nearly as complicated as that.

So think about that, as far as that goes.

But having said that, let's talk about the

Pretrial Conference Order. I'm not going to do any rulings

today on motions in limine, because if you do consent, I

think it would be better for the new judge to rule on those.

I'm just going to tell you my issues with the Pretrial

Conference Order for now, because this basically would apply

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


7


whether it goes to a magistrate judge or not.

So I think you guys need to more strictly comply

with the Appendix A in the Local Rules, and I'm very strict

about it, so why don't you just go through it.

With paragraph, or Section 6 -- first of all,

there's a numbering that's off. On Page 5, Paragraph -- on

Line 4, where it says: "The following facts so stipulated

should be without prejudice." That should be numbered as

Paragraph 6 of the Pretrial Conference Order.

With respect to Paragraph 7 of the Pretrial

Conference Order where you lay out the claims, it's not

really -- all you really need to do is to lay out the

claims.

So, for example, on Claim No. 1, where it says,

"Defendant Entrata is liable for federal copyright

infringement under 17 U.S.C. 101." That's it. All the rest

of it you can cut out. It's just a listing of what the

claims are. Again, follow the form.

And with respect to the elements of the claim, if

there is a model jury instruction, I don't think you really

need to lay out more than that. Sometimes there's a lot of

case citations that we don't need. Maybe you can -- at

most, if you are going to include a case citation, just

limit it to one. But if there's a jury instruction, that's

all I need is what the authority is for the jury

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


8


instruction.

Now, with respect to the -- now, with respect to

the evidence in support, really what's expected there is

just a listing of the evidence, not any argument.

For example, I'm looking at Page 8. The Pretrial

Order asks for key evidence in support. I don't know why

you reference it as selected evidence. But there's just a

lot of legal arguments. Remove it all. I just expect, you

know: Testimony of so-and-so, deposition of so-and-so,

documents of so-and-so. That's all we need to know.

I don't need to know that you think that Yardi

Voyager 5.0 and Yardi Voyager 6.0 computer programs,

including screen displays, contain original copyrightable

elements. Take it all out. This Pretrial Conference Order

probably shouldn't exceed ten pages, so -- when you're done

with it.

So on the evidence for both of you, please take

that out.

Defendant -- typically what I require with

defendants on affirmative defenses and counterclaims -- and

I do have a question. And I want you guys to meet and

confer.

And, by the way, I should have said this upfront:

So what will happen is, assuming you don't consent to a

magistrate judge, I will set up the next process and

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


9


typically you will come back here maybe three or four times

before you get it right, the way I want it.

And the reason Alfred Mann was done in ten hours

is because by the time they came back here four times,

everything was ready to go.

So -- but the process will be the same. You will

meet and confer with a court reporter to discuss all of

these things that I'm going to raise. For example -- and

you will, for example, with the pretrial exhibit

stipulation, you will submit also an index to the transcript

where you discuss every exhibit that's disputed. And if I

don't see a good-faith discussion, I will impose sanctions.

So it's a lot of work to get ready for trial, but

as you will see, it will be very streamlined by the time we

get there. So that raises an issue here.

The counterclaim as to the declaratory judgment,

it seems a mirror image of the plaintiff's claims. So I

want you guys to meet and confer on that. I don't think

that's a true counterclaim, the declaratory judgment claims

here. I think they should come out, but you guys can meet

and confer on that for the next draft.

Remember on affirmative defense, I require two

things with affirmative defenses because my experience is

that many times defense counsel raise affirmative defenses

that aren't true affirmative defenses.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


10


So at each affirmative defense, I want you to draw

up a footnote. It does two things in the footnote. It

describes, one, you give me authority of a case that says

that this truly constitutes a true affirmative defense;

right? In other words, an affirmative defense is if you

prove it up, you win. And, two, you tell me where in your

answer the affirmative defense was pled, because if it

wasn't there, it's waived. So that's for every affirmative

defense.

But the same issues from last time that happened

with the plaintiffs. Just give me the jury instruction that

has the authority for the elements, and then the evidence.

So that is Paragraph 7 of the Pretrial Conference Order.

And then with respect to Paragraph 8, again, just

as an aside, again remove all the argument with respect to

listing of the evidence. Just list the actual evidence

you're going to have there.

Okay. With respect to Paragraph 8, which you guys

numbered as Paragraph 7, there's one -- it's on Page 27, at

the bottom, Lines 27 through 28, that sentence can be taken

out. And look at all of these -- it seems like an awful lot

and some repetitiveness. I would encourage you guys to meet

and confer and really nail those down.

With respect to Paragraph 9 of the Pretrial

Conference Order, is there any outstanding discovery there

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


11


on that one that's left?

I know you guys were producing discovery as of the

date this was filed; right?

MR. GONZALEZ: I think we're all set. I look at

my colleagues, but I think everything's been resolved.

MR. ACKER: Yes, Your Honor.

THE COURT: With respect to Paragraph 9, I don't

require a joint exhibit list. I would use the pretrial

exhibit stipulation. All you need to say on Paragraph 9 is

that the disclosures have been made and that the pretrial

exhibit stipulation has been filed. You will need to -- you

will need to meet and confer on the pretrial exhibit

stipulation so -- but we can talk about that later.

And then on the witness list -- you know,

generally my view on the witness list is, I don't really

care that much about them because you have a time limit and

you are going to use them however you want.

And I think that's it on the Pretrial Conference

Order. Any questions you have about the Pretrial Conference

Order before we move on?

MR. ACKER: No.

MR. GONZALEZ: No, thank you, Your Honor.

THE COURT: The pretrial exhibit stipulation I

think it includes far too many exhibits, and I think you'll

need to obviously pare this down. And so just do what you

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


12


can to work these out. You will -- obviously, it's far too

many exhibits for -- I'm not even sure how long your trial

is going to be, but for whatever time I'm going to give you,

it's far too many exhibits.

And with respect to videos and audio photographs,

you're going to have to submit them at some point soon so

that we can look at them, so I can rule on them before.

The other issue that we need to address is that

the -- I'm not really inclined to close the courtroom. And

so I will ask and need some briefing to -- later on as we

get closer to trial. And I'm trying to think of what's the

best way to do this. I do think you should include the

exhibit on the pretrial exhibit stipulation and maybe create

a separate column, although I know it's already tight, the

column. Or maybe I should have you do a separate exhibit

stipulation on just sealed exhibits. And I may ask for

briefing later on.

And even if the two of you agree that something

should be sealed, you know, be prepared, I probably won't do

it. You're going to really have to make a showing under the

law. Obviously, the presumption is that once you go to

trial, everything is open.

I do know that there are circumstances where

certain things have to be sealed. And you're going to need

to establish for me why redacting something -- right? --

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


13


isn't sufficient before we give it to a jury. And if

there's any audio or video, why not cutting out things that

need to be kept out.

So I really want to encourage you to meet and

confer on the exhibits that are going to be sealed.

So for now, though, the main thing is I'm going to

ask you to meet and confer on the pretrial exhibit

stipulation, and I will send out an order later on setting

out all these instructions.

With respect to the joint jury instructions, I

just want to note a few things that you prepare -- I would

like an index of all the jury instructions, both the joint

and the disputed at the front of each document, because the

defendant asserted -- appears to assert different sets of

affirmative defenses across the pretrial papers. I still

can't determine whether there's a full and complete set of

jury instructions.

And also, to the extent defendant claims that an

equitable defense should be decided by the court, I still

want the parties to draft a jury instruction, so I can get

an advisory opinion from the jury.

And also, if it's a Model Jury Instruction, that's

all I need. I don't really need any string cites.

There were some instructions where the source

stated that an instruction was modified, but then it wasn't;

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


14


and then there was others where the source stated that the

instruction was not modified when it was, so please make

sure that that's accurate.

Also, with respect to sort of the generic

instructions from the Ninth Circuit, I didn't really pay

attention to this, but they just re-did all the

Ninth Circuit Instructions. So the last few pretrial

conferences I've done, the lawyers didn't really -- they had

changed the numbering. I just want to make sure that's all

okay.

And so there were some instances where the parties

made slight modifications to the Model Jury Instructions.

For example, at Instruction No. 16, which is, I think, Model

Instruction 1.18, the parties took out the sentence:

"Parties aren't required to make an opening statement." I

think we don't have a problem -- or was that one of the ones

that they changed? Is that one of the ones that was

modified now?

MR. GONZALEZ: That was modified.

THE COURT: That was modified. Okay.

So one thing I'd like you guys to do is when you

organize the instructions is -- I mean, I will organize them

if you don't in the end -- but try to organize them in a way

so that it's sort of -- I tend to give about 17 to 20 of the

preliminary instructions. And then the next instructions

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


15


are the substantive law instructions, which I give at the

end of the case, and then I give the concluding -- the final

instructions. I'm trying to organize the instructions so

that it's clear that a jury know what particular copyrights

and trade secrets are with the instructions.

So the instructions should state whether the

stipulated facts that the defendant admits that are a copy

of Voyager 5 and/or Voyager 6, for example.

One other thing, on the stipulated facts, I will

probably require you guys -- I will say, I'm very pleased

with the number of stipulated facts you've provided. That's

probably the most I've ever seen the first time around in

any case, and that was good.

In the Alfred Mann case, I think they gave me like

12, and I think I made the plaintiffs give 200 to the other

side. I do want you -- having said that -- because this

also streamlines the trial -- I do want you -- as part of

the meet and confer, usually I'll order the plaintiff to

prepare the first cut. And I'll order the plaintiff to

provide 50 additional, and you guys can meet and confer over

those 50 new instructions.

And look at -- Jury Instruction No. 3 that will

come out. That relates to the declaratory relief claim. So

the parties should talk about whether that needs to come

out.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


16


At this point, I don't know that I'm going to go

through any of the other instructions. There's just a

couple more, and I'm not going to go through any of the

disputed instructions because those -- some of those may go

away after the motions in limine, and I think it's better to

do that at the next session. I do want you guys to talk

about those again as part of the meet and confer and -- but

for now, I do have a question about Jury Instruction No. 32.

That's, I think, my instruction number 17.18. Is that -- do

the parties agree that Random House is the appropriate test

to apply, or does Apple -- that applies to computer

programs.

MR. ANDREU-VON EUW: Your Honor, we think this is

a computer software case, and it's appropriate to have a

computer software-specific instruction.

THE COURT: So the Apple test would apply?

MR. GONZALEZ: Yeah, I think -- well, basically

there's -- factually what we're going to be pursuing is that

the software was literally copied as it was run. So they

used our software to demo their software, basically. So

that's one aspect of the copyright.

And then the other aspect is that there's one sort

of screen report in particular that we're claiming is

essentially the same or substantially similar.

THE COURT: It's the Box Score Report?

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


17


MR. GONZALEZ: Yes, exactly.

MR. ANDREU-VON EUW: And, Your Honor, with respect

to that second claim, we think that's the software

comparison.

THE COURT: Okay. We'll take a look at that

instruction again.

What about model instructions? You probably don't

have this in front of you, so just take a note on this for

the future. Look at model instructions -- and I think I

left my book -- literally just moved in. The day before

yesterday moved in, so I'm a little bit -- but look at

whether or not we need to include Model Instruction 17.5 and

17.6, as you do your meet and confer.

With Jury Instruction No. 22, the parties

reference Rule 608 and 609 of the Federal Rules of Evidence,

and I'm just wondering what are the parties contemplating

here with this instruction. Is there going to be anything

with that that's going to be in issue?

MR. ANDREU-VON EUW: I apologize, Your Honor.

What instruction is that again?

THE COURT: Number 22. It's number 24 of your

instructions. I think that I should just tell you that I

understand that sometimes you guys are putting this together

and it's real crunch time and you're working off previous

versions that you've submitted and sometimes you include

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


18


instructions that, you know, may not be necessary.

So you should know that I will remove any

instructions on my own that I don't see as being necessary

for the case, just to keep -- because I give the jurors a

copy of all the instructions. So I want to keep it --

MR. GONZALEZ: Right. I think factually there is

some basis for this instruction. There are no felony

convictions or anything like that that I'm aware of, but I

think there's some significant disparity in testimony and

statements that were made over time. That's part certainly

of our case. I don't know if the defense has a similar

thought, but I think that was the thinking behind that.

And if the evidence doesn't turn out that way,

Your Honor, we'll be happy to reconsider it. But that's why

it's there is my understanding.

MR. ANDREU-VON EUW: And, Your Honor, it was our

position that as of now, there is nothing that warrants this

instruction. And the parties agree that if and when it's

warranted, it would be given.

THE COURT: Okay. That's fine. We'll figure that

out later, then.

Let's look at No. 29, Jury Instruction 29. Is

there any reason why the Box Score Report is not included in

there?

MR. GONZALEZ: It's part of the two programs,

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


19


Your Honor. I guess you can put it that way. If it makes

more sense to break that out separately, we can consider

that.

THE COURT: This is the first time, other than the

summary judgment, but this is -- and that's what will

happen, as we have more meetings, I will get much more

intimately familiar with your case. But --

Okay. I sort of understood it as something

different but -- and that's just me not knowing your case

yet as well as I should.

Now, Instruction No. 30, I wanted to raise the

issue of the note that the defendant made with respect to

the copyrightability of certain elements. And I think I

will leave that alone for now to see if you guys consent or

not, because that's something, if the magistrate ends up

taking the case, he or she can work on that. Okay.

Instruction No. -- let me look at these. There's

no authority for Instructions 39, 40, and 41, although 40

does have the statute. Just put the authority at the bottom

of the instructions.

And then 57 and 58, looks like there's two

different instructions for breach of contract. Am I missing

something? What's that about? If someone can tell me.

MR. ANDREU-VON EUW: One is for express contract

and one is for implied contract.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


20


THE COURT: Okay. Then, I think you should put

that in the title, so that it's clear for the jury,

especially. The titles are really important for the jury

because, you know, for them to understand this.

Okay. So as I said, the disputed jury

instructions I'm not dealing with that now, and we'll see

what happens as far as -- if you go forward with me or with

the magistrate judge.

Special verdict form. That's going to need some

work, but I'm not going to spend any time really today on

that, because it may be something that we can do closer in

time. You know, I do want you guys to try to pare that down

to, for example, as to trade secrets, try to pare it down to

a single question.

Although, I think one of the things where I messed

up in the Alfred Mann case was having one question as to

damages only, and so now we're left with one claim -- I

mean, one patent and two claims. I don't know how I'm going

to figure that out when it comes back. But what can I say?

You know, you learn this the more you do it. It's a

learning process. I have to figure out a way to go to more

training for these kinds of cases.

So I'll -- we'll leave the special verdict alone

for now, but just know that if you come back, it does need a

lot of work. I will want you guys to meet and confer.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


21


And, then, statement of the case, maybe we'll

revisit that later.

Witness list. Again, I don't really -- you might

want to consider refiling them because it seems so unwieldy,

but you don't have to because I'll figure out the time limit

as we get closer. I think that's it on my end.

So any questions at all on anything, anything that

we discussed, or anything that I didn't discuss that you

want to ask me about? This is your time. Speak now, as

they say, or forever hold your peace.

MR. ACKER: Yes, Your Honor. And thank you for

the guidance on potential timing and your state of -- as I

understand it, there will be a series of pretrial,

additional pretrial conferences as we work on improving our

pretrial filing. Do you have any sense on your calendar --

THE COURT: With trial?

MR. ACKER: Yes.

THE COURT: No earlier than April, and no later

than June. My sense is -- I'm guessing May is probably --

you know, we're pretty booked between now and then. And so,

yeah, that's about as good as I can give you.

MR. ACKER: I understand.

THE COURT: What we'll do is, after I figure out

whether you guys are consenting or not, I'm going to really

sit down and look at the calendar. I'm going to go through

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


22


the paperwork again and really try to suss out, you know,

when I should set it.

And then I'll set that out, and I'll send you

deadlines for everything that will be due. I will even set

the date and the time of your meet and confer and whose

office it's going to be at. I don't -- if I don't do

that -- maybe it's because I ruled on discovery motions for

so many years, and then this is the Central District and I

know that some of you are from San Francisco and the bar is

much more cooperative up there than they are here.

And so when I would issue orders and say, you

know, make someone available by December 30th, they wouldn't

'cause they couldn't -- nobody's schedule was -- so you'll

rarely have any doubt about what you need to do, and even

when you need to do it.

MR. ACKER: I appreciate that. Thank you. That's

all that we have.

MR. GONZALEZ: The only question I was going to

raise is whether the court -- and we also appreciate the

guidance, so thank you, Your Honor -- is whether the court

usually builds in time for rebuttal, or is that subtracted

from --

THE COURT: The only thing I give you a little bit

more time for -- is -- I will -- I think I've decided that

whatever time I give you, I'll also give you a separate

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


23


time, like maybe an hour, for closing. Because I have had

happen a couple of times -- and I don't really like that,

and it's mostly for the jury's sake. Whatever time limit I

give, I've had lawyers run out, and then they can't even

give a closing. So whatever time limit I give, I'll give it

to you. And then I will, on top of that, give you a

separate hour for closing or something like that. So that

even if you run out of time, you'll at least know you can

wrap up things.

MR. GONZALEZ: What if we -- I guess what I'm

contemplating, say we get lucky and finish our affirmative

case in seven hours, would we be able to use that last hour

for rebuttal?

THE COURT: Oh, yeah, you can use it for

everything. It obviously doesn't count for voir dire. I do

count it as part of the opening, but I stop, like I said,

for closing.

So you can use it for -- anyway you want, and it's

up to you to save it however you want.

MR. GONZALEZ: Thank you, Your Honor.

THE COURT: Anything else? Thank you all, very

much. Have a nice weekend. Happy Holidays.

(Thereupon, at 10:41 a.m., proceedings adjourned)

-oOo-

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


24


CERTIFICATE

I hereby certify that pursuant to Section 753,

Title 28, United States Code, the foregoing is a true and

correct transcript of the stenographically reported

proceedings held in the above-entitled matter and that the

transcript format is in conformance with the regulations of

the Judicial Conference of the United States.

Date: January 20, 2017

Lisa M. Gonzalez /s/__________________________________

Lisa M. Gonzalez, U.S. Court Reporter CSR No. 5920

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


MR. ACKER: [7] 3/12 11/5 11/20 21/10 21/16 21/21 22/15 MR. GONZALEZ: [9] 3/7 11/3 11/21 16/16 18/5 18/24 22/17 23/9 23/19 MR. JACOBS: [1] 3/15 THE CLERK: [1] 3/3 THE COURT: [17] 3/22 11/6 11/22 14/19 16/15 16/24 17/4 17/20 18/19 19/3 19/25 21/15 21/17 21/22 22/22 23/13 23/20

$$135 [1] 6/9$135-million [1] 6/9

''cause [1] 22/13

--o0o [1] 3/3-oOo [1] 23/25

//s [1] 24/13

11.18 [1] 14/14100 [1] 2/14101 [1] 7/1610:00 [1] 3/210:41 [1] 23/2312 [2] 4/15 15/1512531 [1] 2/1413 [1] 4/1513-CV-7764-FMO [1] 1/816 [3] 1/17 3/1 14/1317 [2] 7/16 14/2417.18 [1] 16/917.5 [1] 17/1217.6 [1] 17/131888 [1] 2/211st [1] 1/23

220 [2] 14/24 24/11200 [1] 15/152000 [1] 2/2020006-1888 [1] 2/212016 [2] 1/17 3/12017 [1] 24/11202 [1] 2/222040 [2] 2/10 2/15213 [1] 2/6213.894.2979 [1] 1/2422 [2] 17/14 17/2124 [1] 17/212482 [1] 2/18268-7455 [1] 2/1827 [2] 10/19 10/2028 [2] 10/20 24/529 [2] 18/22 18/22

330 [1] 19/11300 [1] 2/530th [1] 22/1232 [1] 16/8350 [1] 1/2339 [1] 19/18

440 [2] 19/18 19/1841 [1] 19/184100 [1] 2/5415 [1] 2/18425 [1] 2/17430 [1] 2/94455 [1] 1/23

55.0 [1] 8/1250 [2] 15/20 15/215126 [1] 2/1557 [1] 19/2158 [1] 19/215920 [2] 1/22 24/14

66.0 [1] 8/126000 [1] 2/21608 [1] 17/15609 [1] 17/156135 [1] 2/6629-6019/6190/6135 [1] 2/6699-2040 [1] 2/10

7720-5126 [1] 2/157455 [1] 2/18753 [1] 24/47764 [1] 3/4

8805 [1] 2/10858 [1] 2/158757 [1] 2/22887-8757 [1] 2/22

990012 [1] 1/2390071 [1] 2/692130-2040 [1] 2/1593117 [1] 2/994105-2482 [1] 2/18

Aa.m [2] 3/2 23/23able [2] 4/1 23/12about [20] 4/15 5/17 5/19 6/14 6/15 6/19 6/20 7/4 11/13 11/16 11/19 14/24 15/24 16/7 16/8 17/7 19/23 21/9 21/21 22/14above [1] 24/7above-entitled [1] 24/7accept [1] 4/16accurate [1] 14/3ACKER [2] 2/12 3/13across [1] 13/15actual [1] 10/16additional [2] 15/20 21/14address [1] 12/8adjourned [1] 23/23admits [1] 15/7advisory [1] 13/21affirmative [12] 8/20 9/22 9/23 9/24 9/25 10/1 10/4 10/5 10/7 10/8 13/15 23/11affirmed [1] 6/11after [2] 16/5 21/23again [8] 7/18 10/14 10/15 16/7 17/6

17/20 21/3 22/1agree [3] 12/18 16/10 18/18Alfred [5] 5/19 6/17 9/3 15/14 20/16all [23] 4/16 5/25 7/5 7/12 7/16 7/25 8/8 8/10 8/14 9/7 10/15 10/21 11/4 11/9 13/9 13/12 13/23 14/6 14/9 18/5 21/7 22/17 23/21alone [2] 19/14 20/23already [1] 12/14also [10] 4/24 4/25 4/25 9/10 13/18 13/22 14/4 15/17 22/19 22/25although [3] 12/14 19/18 20/15Am [1] 19/22amenable [1] 3/25and/or [1] 15/8ANDREU [8] 2/13 3/19 3/20 16/13 17/2 17/19 18/16 19/24ANDREU-VON [8] 2/13 3/19 3/20 16/13 17/2 17/19 18/16 19/24Angeles [4] 1/16 1/23 2/6 3/1answer [1] 10/7answers [1] 4/10anteroom [2] 5/23 6/1anticipate [1] 4/4any [18] 4/16 4/16 6/8 6/21 8/4 10/25 11/19 13/2 13/23 15/13 16/2 16/3 18/2 18/23 20/10 21/7 21/15 22/14anything [6] 17/17 18/8 21/7 21/7 21/8 23/21anyway [1] 23/18apologize [1] 17/19appearance [1] 3/7APPEARANCES [1] 2/1appears [1] 13/14Appendix [1] 7/3Apple [2] 16/11 16/16applies [1] 16/11apply [3] 6/25 16/11 16/16appreciate [2] 22/16 22/19appropriate [2] 16/10 16/14April [1] 21/18are [21] 3/25 4/16 5/2 5/5 5/6 5/20 7/18 7/23 11/17 12/23 13/5 15/1 15/5 15/7 17/16 17/23 18/7 20/3 21/24 22/9 22/10aren't [2] 9/25 14/15argument [2] 8/4 10/15arguments [1] 8/8army [1] 5/12around [2] 5/14 15/12as [37] aside [1] 10/15ask [4] 12/10 12/16 13/7 21/9asked [1] 5/24asks [1] 8/6aspect [2] 16/21 16/22assert [1] 13/14asserted [1] 13/14Assistant [1] 3/10assuming [1] 8/24attention [1] 14/6audio [2] 12/5 13/2authority [5] 7/25 10/3 10/12 19/18 19/19available [1] 22/12Avenue [3] 2/5 2/9 2/20aware [1] 18/8away [2] 6/9 16/5awful [1] 10/21


Bbackground [1] 4/25backgrounds [1] 4/21bar [1] 22/9Barbara [1] 2/9basically [3] 6/25 16/17 16/20basis [1] 18/7be [30] because [18] 5/17 6/22 6/25 9/4 9/23 10/7 11/16 13/13 15/16 16/4 18/4 19/15 20/4 20/11 21/4 21/5 22/7 23/1been [3] 11/5 11/10 11/11before [5] 9/2 11/20 12/7 13/1 17/10behalf [1] 3/14behind [1] 18/12being [1] 18/3believe [1] 4/15bench [1] 6/6benefits [2] 5/3 5/3best [1] 12/12better [2] 6/23 16/5between [1] 21/20biased [1] 5/4big [4] 4/4 4/22 5/23 6/1bit [2] 17/11 22/23Bluff [1] 2/14book [1] 17/10booked [1] 21/20both [2] 8/17 13/12bottom [2] 10/20 19/19Box [2] 16/25 18/23BRADY [2] 2/8 3/10breach [1] 19/22break [1] 19/2briefing [2] 12/10 12/17brought [1] 5/25builds [1] 22/21BUSTANY [2] 2/8 3/10

Ccalendar [3] 5/12 21/15 21/25calendars [1] 5/11CALIFORNIA [8] 1/2 1/16 1/23 2/6 2/9 2/15 2/18 3/1called [1] 4/14Calling [1] 3/4came [1] 9/4can [28] can't [2] 13/16 23/4care [1] 11/16case [26] cases [2] 5/1 20/22CCRR [1] 1/22CENTRAL [2] 1/2 22/8certain [2] 12/24 19/13certainly [2] 5/7 18/10CERTIFICATE [1] 24/2certify [1] 24/4changed [2] 14/9 14/17CHRISTIAN [2] 2/13 3/19Circuit [3] 6/11 14/5 14/7circumstances [1] 12/23citation [1] 7/23citations [1] 7/22cites [2] 6/16 13/23claim [5] 7/14 7/19 15/23 17/3 20/17claiming [1] 16/23claims [8] 6/11 7/11 7/13 7/18 9/17 9/19 13/18 20/18clear [2] 15/4 20/2

close [1] 12/9closer [3] 12/11 20/11 21/6closing [4] 23/1 23/5 23/7 23/17Cochlear [1] 5/20Code [1] 24/5colleagues [1] 11/5column [2] 12/14 12/15come [6] 4/21 9/1 9/20 15/23 15/24 20/24comes [1] 20/19company [1] 5/25comparison [1] 17/4complete [1] 13/16complicated [4] 6/4 6/4 6/7 6/18comply [1] 7/2computer [4] 8/12 16/11 16/14 16/15concluding [1] 15/2confer [14] 8/22 9/7 9/18 9/21 10/23 11/12 13/5 13/7 15/18 15/20 16/7 17/13 20/25 22/5conference [11] 3/24 6/21 6/25 7/9 7/11 8/14 10/13 10/25 11/18 11/19 24/9conferences [2] 14/8 21/14conformance [1] 24/8consent [5] 4/10 4/14 6/22 8/24 19/14consenting [6] 4/1 4/6 4/12 5/4 6/15 21/24consents [2] 4/16 4/17consider [4] 4/5 4/12 19/2 21/4considering [4] 5/11 5/11 6/12 6/15constitutes [1] 10/4contain [1] 8/13contemplating [2] 17/16 23/11contract [3] 19/22 19/24 19/25convictions [1] 18/8cooperative [1] 22/10copied [1] 16/19copies [1] 6/17copy [2] 15/7 18/5copyright [2] 7/15 16/21copyrightability [1] 19/13copyrightable [1] 8/13copyrights [1] 15/4correct [1] 24/6couldn't [1] 22/13counsel [3] 3/7 3/10 9/24count [2] 23/15 23/16counterclaim [2] 9/16 9/19counterclaims [1] 8/20couple [4] 3/24 4/20 16/3 23/2court [6] 1/1 9/7 13/19 22/19 22/20 24/14court's [1] 4/2Courthouse [1] 1/22courtroom [6] 5/21 5/22 5/22 5/23 6/1 12/9create [1] 12/13criminal [2] 4/3 5/9crunch [1] 17/24CSR [2] 1/22 24/14cut [2] 7/17 15/19cutting [1] 13/2CV [2] 1/8 3/4CV-13-7764 [1] 3/4

DD.C [1] 2/21damages [1] 20/17date [6] 5/6 5/8 5/10 11/3 22/5 24/11

day [2] 5/22 17/10deadlines [1] 22/4dealing [1] 20/6December [3] 1/17 3/1 22/12decided [2] 13/19 22/24declaratory [3] 9/16 9/19 15/23defendant [9] 1/10 2/12 3/14 7/15 8/19 13/14 13/18 15/7 19/12defendants [1] 8/20defense [9] 9/22 9/24 10/1 10/4 10/5 10/7 10/9 13/19 18/11defenses [5] 8/20 9/23 9/24 9/25 13/15definite [1] 5/6demo [1] 16/20deposition [1] 8/9describes [1] 10/3determine [1] 13/16did [2] 5/19 14/6didn't [4] 6/8 14/5 14/8 21/8Diego [1] 2/15different [3] 13/14 19/9 19/22dire [1] 23/15disclosures [1] 11/10discovery [3] 10/25 11/2 22/7discuss [3] 9/7 9/11 21/8discussed [1] 21/8discussion [1] 9/12disparity [1] 18/9displays [1] 8/13disputed [4] 9/11 13/13 16/4 20/5DISTRICT [4] 1/1 1/2 1/22 22/8DIVISION [1] 1/3do [33] document [1] 13/13documents [1] 8/10does [4] 10/2 16/11 19/19 20/24doesn't [2] 18/13 23/15don't [25] done [5] 6/8 6/13 8/15 9/3 14/8doubt [1] 22/14down [5] 10/23 11/25 20/12 20/13 21/25draft [2] 9/21 13/20draw [1] 10/1Drive [1] 2/14due [1] 22/4

Eeach [2] 10/1 13/13earlier [1] 21/18easier [1] 5/7eight [1] 6/5electrical [1] 6/3elements [4] 7/19 8/14 10/12 19/13else [1] 23/21email [1] 4/8encourage [2] 10/22 13/4encouraging [1] 4/5end [4] 6/3 14/23 15/2 21/6ends [1] 19/15engineering [1] 6/3entitled [1] 24/7Entrata [1] 7/15equitable [1] 13/19ERIC [2] 2/12 3/13especially [1] 20/3ESQ [7] 2/3 2/4 2/4 2/8 2/12 2/13 2/17essentially [1] 16/24establish [1] 12/25EUW [8] 2/13 3/19 3/20 16/13 17/2


EEUW... [3] 17/19 18/16 19/24even [7] 5/8 12/2 12/18 22/4 22/14 23/4 23/8ever [2] 6/13 15/12every [2] 9/11 10/8everything [4] 9/5 12/22 22/4 23/15everything's [1] 11/5evidence [10] 8/3 8/4 8/6 8/7 8/17 10/12 10/16 10/16 17/15 18/13exactly [1] 17/1example [7] 7/14 8/5 9/8 9/9 14/13 15/8 20/13exceed [1] 8/15exhibit [11] 9/9 9/11 11/8 11/9 11/11 11/12 11/23 12/13 12/13 12/15 13/7exhibits [5] 11/24 12/2 12/4 12/16 13/5expect [1] 8/8expected [1] 8/3experience [1] 9/23explore [1] 3/25express [1] 19/24extent [1] 13/18

Ffacts [4] 7/7 15/7 15/9 15/11factually [2] 16/18 18/6Fairview [1] 2/9faith [1] 9/12familiar [2] 5/20 19/7far [7] 6/4 6/7 6/19 11/24 12/1 12/4 20/7federal [3] 6/11 7/15 17/15feel [1] 5/3felony [1] 18/7felt [1] 6/13FERNANDO [1] 1/4few [2] 13/11 14/7figure [5] 18/20 20/19 20/21 21/5 21/23file [1] 4/9filed [2] 11/3 11/11filing [1] 21/15final [1] 15/2fine [1] 18/20finish [1] 23/11first [5] 6/13 7/5 15/12 15/19 19/4FMO [1] 1/8FOERSTER [2] 2/12 3/14follow [1] 7/18following [1] 7/7footnote [2] 10/2 10/2foregoing [1] 24/5forever [1] 21/10form [2] 7/18 20/9format [1] 24/8former [1] 5/5forward [1] 20/7four [3] 6/3 9/1 9/4Francisco [2] 2/18 22/9Friday [2] 1/17 3/1front [2] 13/13 17/8full [1] 13/16future [1] 17/9

Ggave [2] 6/5 15/14General [1] 3/10generally [1] 11/15generic [1] 14/4get [10] 5/5 6/7 9/2 9/13 9/15 12/11

13/20 19/6 21/6 23/11getting [2] 4/4 6/17give [22] 5/15 5/16 6/16 6/16 10/3 10/11 12/3 13/1 14/24 15/1 15/2 15/15 18/4 21/21 22/23 22/25 22/25 23/4 23/5 23/5 23/5 23/6given [2] 4/2 18/19go [10] 5/16 7/4 9/5 12/21 16/1 16/3 16/4 20/7 20/21 21/25goes [2] 6/19 7/1going [27] Gonzales [1] 3/8GONZALEZ [6] 1/22 2/3 14/19 17/1 24/13 24/14good [9] 3/8 3/13 3/17 3/19 3/21 6/14 9/12 15/13 21/21good-faith [1] 9/12got [2] 6/8 6/18Grand [1] 2/5guess [3] 6/6 19/1 23/10guessing [1] 21/19guidance [2] 21/12 22/20guys [17] 3/25 7/2 8/21 9/18 9/20 10/18 10/22 11/2 14/21 15/10 15/20 16/6 17/23 19/14 20/12 20/25 21/24

Hhad [5] 5/23 6/13 14/8 23/1 23/4HANSEN [2] 2/4 3/11happen [3] 8/24 19/6 23/2happened [1] 10/10happens [1] 20/7happy [2] 18/14 23/22has [3] 10/12 11/11 18/11have [31] having [3] 6/20 15/16 20/16he [3] 4/22 4/22 19/16held [1] 24/7her [1] 4/25here [8] 3/23 5/13 9/1 9/4 9/15 9/20 17/17 22/10hereby [1] 24/4High [1] 2/14hold [1] 21/10Holidays [1] 23/22HON [1] 1/4Honor [15] 3/13 3/16 3/17 3/22 11/6 11/22 16/13 17/2 17/19 18/14 18/16 19/1 21/11 22/20 23/20hour [3] 23/1 23/7 23/12hours [4] 6/5 6/6 9/3 23/12House [1] 16/10how [4] 6/1 6/6 12/2 20/18however [2] 11/17 23/19

II'd [1] 14/21I'll [13] 4/7 4/7 5/10 5/11 5/21 15/18 15/19 20/23 21/5 22/3 22/3 22/25 23/5I'm [30] I've [4] 14/8 15/12 22/24 23/4image [1] 9/17implied [1] 19/25important [1] 20/3impose [1] 9/12improving [1] 21/14INC [4] 1/6 1/9 3/5 3/6inclined [1] 12/9include [5] 4/18 7/23 12/12 17/12 17/25included [1] 18/23

includes [1] 11/24including [1] 8/13index [2] 9/10 13/12infringement [1] 7/16instances [1] 14/11instruction [24] 7/20 7/24 8/1 10/11 13/20 13/22 13/25 14/2 14/13 14/14 15/22 16/8 16/9 16/15 17/6 17/12 17/14 17/17 17/20 18/7 18/18 18/22 19/11 19/17instructions [29] interested [1] 5/1INTERNATIONAL [2] 1/9 3/6intimately [1] 19/7invalidated [1] 6/10IP [3] 4/21 4/22 4/24is [59] isn't [3] 4/13 4/17 13/1issue [5] 9/15 12/8 17/18 19/12 22/11issues [3] 6/8 6/24 10/10it [65] it's [27] Item [1] 3/4

JJACOBS [2] 2/17 3/16January [2] 4/2 24/11JASON [2] 2/3 3/8JESSICA [2] 2/4 3/11JOHN [2] 2/13 3/21joint [3] 11/8 13/10 13/12judge [11] 1/4 1/4 4/1 4/21 4/24 5/5 5/14 6/23 7/1 8/25 20/8judges [5] 4/6 4/11 4/15 4/20 5/4judgment [3] 9/16 9/19 19/5Judicial [1] 24/9June [1] 21/19jurors [1] 18/4jury [21] 6/5 7/20 7/24 7/25 10/11 13/1 13/10 13/12 13/17 13/20 13/21 13/22 14/12 15/4 15/22 16/8 17/14 18/22 20/2 20/3 20/5jury's [1] 23/3just [27]

Kkeep [2] 18/4 18/5kept [1] 13/3key [1] 8/6kinds [1] 20/22Kirkland [1] 4/22know [26] knowing [1] 19/9

LLANHAM [3] 2/13 3/21 3/21last [3] 10/10 14/7 23/12later [7] 11/13 12/10 12/17 13/8 18/21 21/2 21/18law [2] 12/21 15/1lawyers [4] 5/13 5/24 14/8 23/4lay [3] 7/11 7/12 7/21learn [1] 20/20learning [1] 20/21least [2] 4/5 23/8leave [2] 19/14 20/23left [3] 11/1 17/10 20/17legal [1] 8/8let [1] 19/17let's [3] 3/24 6/20 18/22


Lletter [2] 4/8 4/8liable [1] 7/15like [11] 4/17 10/21 13/12 14/21 15/14 18/8 19/21 23/1 23/2 23/7 23/16limine [2] 6/22 16/5limit [5] 7/24 11/16 21/5 23/3 23/5Line [1] 7/7Lines [1] 10/20LISA [3] 1/22 24/13 24/14list [7] 4/11 4/18 10/16 11/8 11/14 11/15 21/3listing [3] 7/17 8/4 10/16literally [2] 16/19 17/10little [2] 17/11 22/23LLP [1] 2/3load [1] 4/3Local [1] 7/3long [1] 12/2look [10] 10/21 11/4 12/7 15/22 17/5 17/9 17/11 18/22 19/17 21/25looking [1] 8/5looks [1] 19/21Los [4] 1/16 1/23 2/6 3/1lot [9] 5/2 5/3 5/15 5/16 7/21 8/8 9/13 10/21 20/25lucky [1] 23/11

MMacKinnon [1] 4/21made [5] 11/10 14/12 15/15 18/10 19/12magistrate [12] 4/1 4/6 4/11 4/15 4/20 5/4 5/5 5/14 7/1 8/25 19/15 20/8main [1] 13/6make [6] 5/12 12/20 14/2 14/9 14/15 22/12makes [1] 19/1Mann [5] 5/19 6/18 9/3 15/14 20/16many [5] 9/24 11/24 12/2 12/4 22/8Market [1] 2/17MARY [2] 2/20 3/17matter [1] 24/7matters [1] 4/3may [6] 5/9 12/16 16/4 18/1 20/11 21/19maybe [9] 5/4 5/17 7/22 9/1 12/13 12/15 21/1 22/7 23/1me [12] 3/9 5/24 10/3 10/6 10/11 12/25 15/14 19/9 19/17 19/23 20/7 21/9mean [2] 14/22 20/18meet [14] 8/21 9/7 9/18 9/20 10/22 11/12 13/4 13/7 15/18 15/20 16/7 17/13 20/25 22/5meetings [1] 19/6messed [1] 20/15MICHAEL [2] 2/17 3/16might [1] 21/3million [1] 6/9mirror [1] 9/17missing [1] 19/22model [7] 7/20 13/22 14/12 14/13 17/7 17/9 17/12modifications [1] 14/12modified [5] 13/25 14/2 14/18 14/19 14/20more [15] 5/15 5/16 6/4 6/7 6/17 7/2 7/21 16/3 19/2 19/6 19/6 20/20 20/21 22/10 22/24morning [5] 3/8 3/13 3/17 3/19 3/21

MORRISON [2] 2/12 3/14most [2] 7/23 15/12mostly [1] 23/3motions [3] 6/22 16/5 22/7move [1] 11/20moved [2] 17/10 17/11MR [9] 3/19 3/21 14/19 16/13 17/1 17/2 17/19 18/16 19/24MS [1] 3/17much [5] 6/6 11/16 19/6 22/10 23/22my [14] 5/12 5/21 5/21 5/22 6/24 9/23 11/5 11/15 16/9 17/10 18/3 18/15 21/6 21/19

Nnail [1] 10/23nearly [1] 6/18necessary [2] 18/1 18/3need [22] 7/2 7/12 7/21 7/22 7/25 8/10 8/11 11/9 11/11 11/12 11/25 12/8 12/10 12/24 13/3 13/23 13/23 17/12 20/9 20/24 22/14 22/15needs [1] 15/24new [3] 4/20 6/23 15/21next [5] 4/7 8/25 9/21 14/25 16/6nice [1] 23/22Ninth [2] 14/5 14/7Ninth Circuit [2] 14/5 14/7NIXON [4] 2/3 3/9 3/11 3/11no [18] 1/8 1/22 6/17 7/14 11/21 11/22 14/13 15/22 16/8 17/14 18/7 18/22 19/11 19/17 19/18 21/18 21/18 24/14nobody's [1] 22/13not [20] 4/1 4/9 6/18 6/21 7/1 7/11 8/4 12/2 12/9 13/2 14/2 16/3 17/12 18/1 18/23 19/9 19/15 20/6 20/10 21/24note [3] 13/11 17/8 19/12nothing [1] 18/17now [15] 5/17 6/25 8/2 8/2 13/6 14/18 16/8 18/17 19/11 19/14 20/6 20/17 20/24 21/9 21/20number [6] 3/4 4/3 15/11 16/9 17/21 17/21numbered [2] 7/8 10/19numbering [2] 7/6 14/9NW [1] 2/20

Oo0o [1] 3/3obviously [4] 11/25 12/1 12/21 23/15off [2] 7/6 17/24office [1] 22/6Oh [1] 23/14okay [10] 3/23 10/18 14/10 14/20 17/5 18/20 19/8 19/16 20/1 20/5old [2] 5/21 5/22OLGUIN [1] 1/4once [1] 12/21one [19] 4/10 6/12 6/15 7/24 10/3 10/19 11/1 14/16 14/17 14/21 15/9 16/21 16/22 19/24 19/25 20/15 20/16 20/17 20/18ones [2] 14/16 14/17only [4] 5/21 20/17 22/18 22/23oOo [1] 23/25open [1] 12/22opening [2] 14/15 23/16opinion [1] 13/21order [13] 6/21 6/25 7/9 7/11 8/6 8/14 10/13 10/25 11/19 11/20 13/8 15/18

15/19orders [1] 22/11organize [4] 14/22 14/22 14/23 15/3original [1] 8/13other [8] 6/12 10/5 12/8 15/9 15/15 16/2 16/22 19/4others [1] 14/1our [5] 16/20 18/11 18/16 21/14 23/11out [29] outstanding [1] 10/25over [2] 15/20 18/10own [1] 18/3

PPage [3] 7/6 8/5 10/19pages [1] 8/15papers [1] 13/15paperwork [1] 22/1paragraph [11] 7/5 7/6 7/9 7/10 10/13 10/14 10/18 10/19 10/24 11/7 11/9pare [3] 11/25 20/12 20/13part [6] 4/9 15/17 16/7 18/10 18/25 23/16particular [2] 15/4 16/23parties [11] 3/25 4/5 13/20 14/11 14/14 14/15 15/24 16/10 17/14 17/16 18/18partner [1] 4/23patent [2] 4/24 20/18patents [4] 5/18 6/4 6/11 6/13pay [1] 14/5PEABODY [4] 2/3 3/9 3/11 3/12peace [1] 21/10Pennsylvania [1] 2/20photographs [1] 12/5plaintiff [6] 1/7 2/3 3/9 6/9 15/18 15/19plaintiff's [1] 9/17plaintiffs [2] 10/11 15/15please [3] 3/7 8/17 14/2pleased [1] 15/10pled [1] 10/7point [2] 12/6 16/1position [1] 18/17possibly [1] 4/18potential [1] 21/12prejudice [1] 7/8preliminary [1] 14/25PRENDERGAST [3] 2/20 3/17 3/18prepare [2] 13/11 15/19prepared [1] 12/19PRESIDING [1] 1/4presumption [1] 12/21pretrial [23] 3/23 6/21 6/24 7/9 7/10 8/5 8/14 9/9 10/13 10/24 11/8 11/10 11/12 11/18 11/19 11/23 12/13 13/7 13/15 14/7 21/13 21/14 21/15pretty [2] 6/13 21/20previous [1] 17/24probably [6] 8/15 12/19 15/10 15/12 17/7 21/19problem [1] 14/16proceedings [3] 1/15 23/23 24/7process [3] 8/25 9/6 20/21producing [1] 11/2Program [1] 4/14programs [3] 8/12 16/12 18/25PROPERTY [3] 1/9 3/5 3/14proponent [1] 4/5prove [1] 10/6provide [1] 15/20provided [1] 15/11


Ppursuant [1] 24/4pursuing [1] 16/18put [4] 5/8 19/1 19/19 20/1putting [1] 17/23

Qquestion [5] 8/21 16/8 20/14 20/16 22/18questions [3] 4/10 11/19 21/7

Rraise [4] 9/8 9/24 19/11 22/19raise is [1] 22/19raises [1] 9/15Random [1] 16/10rarely [1] 22/14re [1] 14/6re-did [1] 14/6reach [1] 4/19read [1] 5/18ready [2] 9/5 9/13real [1] 17/24really [19] 5/11 7/12 7/12 7/20 8/3 10/23 11/15 12/9 12/20 13/4 13/23 14/5 14/8 20/3 20/10 21/3 21/24 22/1 23/2reason [3] 5/2 9/3 18/23rebuttal [2] 22/21 23/13recently [1] 6/10reconsider [1] 18/14record [1] 4/9redacting [1] 12/25reference [2] 8/7 17/15refiling [1] 21/4regulations [1] 24/8relates [1] 15/23relief [1] 15/23Remember [1] 9/22remove [3] 8/8 10/15 18/2repetitiveness [1] 10/22report [3] 16/23 16/25 18/23reported [1] 24/6reporter [2] 9/7 24/14REPORTER'S [1] 1/15require [4] 8/19 9/22 11/8 15/10required [1] 14/15resolved [1] 11/5respect [14] 7/10 7/19 8/2 8/2 10/14 10/15 10/18 10/24 11/7 12/5 13/10 14/4 17/2 19/12rest [1] 7/16reversed [1] 6/12revisit [1] 21/2right [5] 9/2 10/5 11/3 12/25 18/6rule [3] 6/23 12/7 17/15ruled [1] 22/7Rules [2] 7/3 17/15rulings [1] 6/21run [3] 16/19 23/4 23/8

Ssaid [5] 6/20 8/23 15/16 20/5 23/16sake [1] 23/3same [3] 9/6 10/10 16/24San [3] 2/15 2/18 22/9sanctions [1] 9/12Santa [1] 2/9save [1] 23/19say [7] 4/22 11/9 15/10 20/19 21/10

22/11 23/11says [3] 7/7 7/14 10/3schedule [2] 5/14 22/13Score [2] 16/25 18/23screen [2] 8/13 16/23sealed [4] 12/16 12/19 12/24 13/5Sean [1] 3/10second [2] 5/22 17/3secrets [2] 15/5 20/13Section [2] 7/5 24/4see [7] 3/24 4/19 9/12 9/14 18/3 19/14 20/6seems [3] 9/17 10/21 21/4seen [1] 15/12selected [1] 8/7send [2] 13/8 22/3sense [3] 19/2 21/15 21/19sentence [2] 10/20 14/14separate [4] 12/14 12/15 22/25 23/7separately [1] 19/2series [1] 21/13session [1] 16/6set [8] 5/10 5/25 8/25 11/4 13/16 22/2 22/3 22/4sets [1] 13/14setting [1] 13/8seven [1] 23/12SHAWN [1] 2/4she [3] 4/25 4/25 19/16shelving [1] 5/25should [17] 5/17 5/19 7/8 7/8 8/23 9/20 12/12 12/15 12/19 13/19 15/6 15/24 17/22 18/2 19/10 20/1 22/2shouldn't [1] 8/15show [1] 5/13showing [1] 12/20side [1] 15/16significant [1] 18/9similar [2] 16/24 18/11single [1] 20/14sit [1] 21/25site [1] 4/13slight [1] 14/12so [65] so-and-so [3] 8/9 8/9 8/10software [6] 16/14 16/15 16/19 16/20 16/20 17/3software-specific [1] 16/15SOLUTIONS [3] 1/9 3/5 3/15some [11] 5/20 10/22 12/6 12/10 13/24 14/11 16/4 18/7 18/9 20/9 22/9somebody [1] 5/13someone [3] 4/17 19/23 22/12something [7] 12/18 12/25 19/8 19/15 19/23 20/11 23/7sometimes [3] 7/21 17/23 17/25soon [1] 12/6sort [5] 5/16 14/4 14/24 16/22 19/8source [2] 13/24 14/1South [2] 2/5 2/9Speak [1] 21/9special [2] 20/9 20/23specific [1] 16/15spend [1] 20/10spring [1] 4/4Standish [1] 4/24state [3] 3/7 15/6 21/12stated [2] 13/25 14/1statement [2] 14/15 21/1statements [1] 18/10

STATES [3] 1/1 24/5 24/9statute [1] 19/19stenographically [1] 24/6still [3] 4/18 13/15 13/19stipulated [4] 7/7 15/7 15/9 15/11stipulation [8] 9/10 11/9 11/11 11/13 11/23 12/13 12/16 13/8stop [1] 23/16streamlined [1] 9/14streamlines [1] 15/17Street [2] 1/23 2/17strict [1] 7/3strictly [1] 7/2string [1] 13/23strong [1] 4/21submit [3] 4/8 9/10 12/6submitted [1] 17/25substantially [1] 16/24substantive [1] 15/1subtracted [1] 22/21sufficient [1] 13/1Suite [4] 1/23 2/5 2/14 2/21summary [1] 19/5support [2] 8/3 8/6sure [6] 5/13 5/18 5/20 12/2 14/3 14/9suss [1] 22/1SYSTEMS [3] 1/6 3/5 3/9

Ttake [6] 4/19 5/1 8/14 8/17 17/5 17/8taken [1] 10/20taking [1] 19/16talk [4] 6/20 11/13 15/24 16/6tell [7] 5/17 5/19 5/21 6/24 10/6 17/22 19/23ten [2] 8/15 9/3tend [1] 14/24test [2] 16/10 16/16testimony [2] 8/9 18/9than [9] 5/15 6/5 6/7 6/17 7/21 19/4 21/18 21/19 22/10thank [6] 11/22 21/11 22/16 22/20 23/20 23/21that [128] that's [28] their [1] 16/20them [12] 4/18 4/19 6/5 11/16 11/17 12/6 12/7 12/7 14/22 14/23 20/4 21/4then [20] 4/24 5/9 5/15 10/12 10/14 11/14 13/25 14/1 14/25 15/2 16/22 18/21 19/21 20/1 21/1 21/20 22/3 22/8 23/4 23/6there [23] 4/15 4/23 5/2 7/20 8/3 9/15 10/8 10/17 10/25 10/25 12/23 13/24 14/1 14/11 17/17 18/6 18/7 18/15 18/17 18/23 18/24 21/13 22/10there's [16] 4/17 5/3 6/17 7/6 7/21 7/24 8/7 10/19 13/2 13/16 16/2 16/18 16/22 18/9 19/17 19/21Thereupon [1] 23/23these [7] 5/1 9/8 10/21 12/1 13/9 19/17 20/22they [20] 5/5 5/14 5/15 5/24 5/24 5/25 6/7 6/8 9/4 9/20 14/6 14/8 14/17 15/14 16/19 21/10 22/10 22/12 22/13 23/4they're [1] 4/19thing [5] 6/15 13/6 14/21 15/9 22/23things [9] 3/24 9/8 9/23 10/2 12/24 13/2 13/11 20/15 23/9think [39]


Tthinking [1] 18/12this [31] those [8] 5/6 5/18 6/23 10/23 15/21 16/4 16/4 16/7though [1] 13/6thought [1] 18/12three [3] 4/11 6/10 9/1through [5] 7/4 10/20 16/2 16/3 21/25tight [1] 12/14time [27] times [4] 9/1 9/4 9/24 23/2timing [1] 21/12title [2] 20/2 24/5titles [1] 20/3today [2] 6/22 20/10together [1] 17/23too [4] 4/8 11/24 12/1 12/4took [2] 6/9 14/14top [1] 23/6town [1] 5/7trade [2] 15/5 20/13trailing [1] 5/9training [1] 20/22transcript [4] 1/15 9/10 24/6 24/8trial [8] 4/2 6/8 9/13 12/2 12/11 12/22 15/17 21/16true [4] 9/19 9/25 10/4 24/5truly [1] 10/4try [4] 14/23 20/12 20/13 22/1trying [2] 12/11 15/3Tuesday [1] 4/7turn [1] 18/13two [11] 4/10 4/11 6/6 6/12 9/22 10/2 10/6 12/18 18/25 19/21 20/18typically [2] 8/19 9/1

UU.S [2] 1/22 24/14U.S.C [1] 7/16under [2] 7/16 12/20understand [4] 17/23 20/4 21/13 21/22understanding [1] 18/15understood [1] 19/8UNITED [3] 1/1 24/5 24/9until [1] 4/4unwieldy [1] 21/4up [10] 5/13 5/25 8/25 10/2 10/6 19/15 20/16 22/10 23/9 23/19upfront [1] 8/23use [5] 11/8 11/17 23/12 23/14 23/18used [1] 16/20usually [2] 15/18 22/21

Vverdict [3] 6/9 20/9 20/23versions [1] 17/25versus [2] 3/5 5/19very [7] 4/21 5/1 6/4 7/3 9/14 15/10 23/21video [1] 13/2videos [1] 12/5view [1] 11/15voir [1] 23/15voir dire [1] 23/15Voluntary [1] 4/14VON [8] 2/13 3/19 3/20 16/13 17/2 17/19 18/16 19/24Voyager [4] 8/12 8/12 15/8 15/8

Wwaived [1] 10/8WALKER [2] 2/4 3/11want [22] 3/24 4/22 6/16 8/21 9/2 9/18 10/1 11/17 13/4 13/11 13/20 14/9 15/16 15/17 16/6 18/5 20/12 20/25 21/4 21/9 23/18 23/19wanted [1] 19/11warranted [1] 18/19warrants [1] 18/17was [27] Washington [1] 2/21wasn't [2] 10/8 13/25way [8] 6/17 8/23 9/2 12/12 14/23 18/13 19/1 20/21we [29] we'll [7] 17/5 18/14 18/20 20/6 20/23 21/1 21/23we're [6] 3/23 11/4 16/18 16/23 20/17 21/20Web [1] 4/13weekend [1] 23/22well [4] 5/16 5/23 16/17 19/10were [4] 11/2 13/24 14/11 18/10West [1] 1/23WESTERN [1] 1/3what [19] 4/7 5/10 7/17 7/25 8/19 8/24 11/25 15/4 16/18 17/7 17/16 17/20 19/5 20/7 20/19 21/23 22/14 23/10 23/10what's [4] 4/14 8/3 12/11 19/23whatever [5] 5/8 12/3 22/25 23/3 23/5when [9] 5/10 8/15 14/2 14/21 18/18 20/19 22/2 22/11 22/15where [10] 7/7 7/11 7/14 9/11 10/6 12/23 13/24 14/1 14/11 20/15whether [10] 3/25 4/10 7/1 13/16 15/6 15/24 17/12 21/24 22/19 22/20which [4] 6/9 10/18 14/13 15/1who [4] 4/16 4/20 5/6 5/18whose [1] 22/5why [6] 7/4 8/6 12/25 13/2 18/14 18/23will [35] will remove [1] 18/2willing [2] 4/16 4/19win [1] 10/6without [1] 7/8witness [3] 11/14 11/15 21/3won't [3] 5/9 5/10 12/19wondering [1] 17/16words [1] 10/5work [7] 5/14 9/13 12/1 19/16 20/10 20/25 21/14working [1] 17/24would [11] 4/11 5/1 6/23 6/25 10/22 11/8 13/11 16/16 18/19 22/11 23/12wouldn't [1] 22/12wrap [1] 23/9www.lisamariecsr.com [1] 1/24

YYARDI [7] 1/6 2/8 3/5 3/9 3/10 8/11 8/12yeah [3] 16/17 21/21 23/14years [1] 22/8Yes [4] 11/6 17/1 21/11 21/17yesterday [1] 17/11yet [1] 19/10you [131] you'd [1] 4/17

you'll [6] 4/10 5/5 5/12 11/24 22/13 23/8you're [8] 6/6 6/17 8/15 10/17 12/6 12/20 12/24 17/24you've [2] 15/11 17/25your [29] Your Honor [7] 3/16 3/17 16/13 17/2 17/19 18/16 19/1


4830-3155-7202.2


- 12 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

EXHIBIT B


sd-708674

Writer’s Direct Contact

+1 (858) 720.5109 [email protected]

12531 HIGH BLUFF DRIVE SAN DIEGO, CALIFORNIA 92130-2040

TELEPHONE: 858.720.5100 FACSIMILE: 858.720.5125

WWW.MOFO.COM

M O R R I S O N & F O E R S T E R L L P

B E I J I N G , B E R L I N , B R U S S E L S , D E N V E R , H O N G K O N G , L O N D O N , L O S A N G E L E S , N E W Y O R K , N O R T H E R N V I R G I N I A , P A L O A L T O , S A N D I E G O , S A N F R A N C I S C O , S H A N G H A I ,S I N G A P O R E , T O K Y O , W A S H I N G T O N , D . C .

October 30, 2017

Via U.S. Mail and Email

Jason P. Gonzalez Nixon Peabody LLP 300 S. Grand Avenue, Suite 4100 Los Angeles, CA 90071-3151 Re: Yardi Systems, Inc. v. Entrata, Inc. (f/k/a Property Solutions Int’l, Inc.)

Case No. 2:13-cv-07764-FMO-AGRx (C.D. Cal.)

Dear Jason:

I write in response to your October 27 letter regarding trial preparation. In doing so, I find myself repeating the discussion we had in late July 2017. Nothing has changed in the California case since we last exchanged letters on this issue. What has changed is that discovery is now progressing in earnest in the Utah action. While I can understand Yardi’s desire to move the California case ahead of the Utah action, Yardi had the opportunity to try the California case in Spring 2017, but passed up that opportunity by refusing to consent to trial by a magistrate judge. The fact your request was made within days of a request by your partner to stall the deposition schedule n the Utah case makes Yardi’s gamesmanship even more transparent.

Entrata’s position remains that it would be premature to begin spending the parties’ resources absent any direction from the Court regarding a trial date or pretrial schedule. At the December 16, 2016 Pretrial Conference in the California case, the Court made clear that it would set out a detailed pretrial schedule after setting a trial date:

THE COURT: What we’ll do is, after I figure out whether you guys are consenting or not, I’m going to really sit down and look at the calendar. I’m going to go through the paperwork again and really try to suss out, you know, when I should set [trial]. And then I’ll set that out, and I’ll send you deadlines for everything that will be due. I will even set the date and the time of your meet and confer and whose office it’s going to be at . . . so you’ll rarely have any doubt about what you need to do, and even when you need to do it.


Jason P. Gonzalez October 30, 2017 Page Two

sd-708674

(Pretrial Conference Tr. at 21:23-22:15 (emphasis added).)

While we do not disagree that the Court was clear that there would be significant additional work for the parties to prepare the case for trial, the Court also indicated that whatever trial and pretrial schedule the Court set would provide adequate time for the parties to complete those tasks. In fact, the Court was very direct with the parties that the case would not proceed to trial until the Court was satisfied that the required tasks had been completed and it had time in its schedule to set the case for trial.

Your letter also provides no authority for contacting the Court in the guise of filing a “status report” and telling the Court what the pretrial and trial dates should be when no such report has been requested by the Court, and the Court has not given the parties the authority to dictate its pretrial and trial schedule. If you have any such authority please share it with us.

If you would like we are happy to meet and confer on this issue at a convenient date and time on Wednesday, November 1.

Sincerely,

Eric M. Acker


1

Gonzalez, Jason

From: Gonzalez, Jason

Sent: Friday, November 3, 2017 4:13 PM

To: 'Andreu-von Euw, Christian G.'; Acker, Eric M.

Subject: RE: Yardi v. Entrata - Trial Preparation

Christian – I understand Eric may be busy and, as I have previously noted, we intend to file the status report and request this afternoon. We don’t believe the local rule you cite applies, as it relates to discovery disputes. As I mentioned during our meet-and-confer call, our filing will simply describe the case status and ask for a trial schedule to be set, not ask that the Court rule on a contested legal issue. Regardless, we include the meet-and-confer correspondence in the filing, so we believe the Court will have a good understanding of Entrata’s position on the issues. I frankly don’t see why Entrata is so vigorously resisting simply setting a trial date, other than due to an effort to further delay the case for its own tactical reasons. Thanks --Jason

From: Andreu-von Euw, Christian G. [mailto:[email protected]] Sent: Friday, November 3, 2017 2:45 PM To: Gonzalez, Jason <[email protected]>; Acker, Eric M. <[email protected]> Subject: RE: Yardi v. Entrata - Trial Preparation

Jason,

Eric may want to discuss this further, and I will let him chime in.

However, I note that we also suggested that, in the event the parties could not agree on the contents a joint filing and Yardi insists on making a filing, it would make sense to prepare a joint filing that lists each side’s positions. This seems more consistent with the local rules, which encourage such joint filings. See LR 37-2. Therefore, assuming you and Eric cannot reach an agreement, we would ask that you send us a proposed joint filing that includes Yardi’s position and leaves space for Entrata to enter its position. We would then enter Entrata’s position and return it to you for filing.

Best, CHRISTIAN G. ANDREU-VON EUW | Morrison & Foerster LLPP: +1 (858) 720-5126 | mofo.com

From: Gonzalez, Jason [mailto:[email protected]] Sent: Friday, November 03, 2017 2:30 PM To: Acker, Eric M. Cc: Andreu-von Euw, Christian G. Subject: RE: Yardi v. Entrata - Trial Preparation

- External Email -

Eric – I write to follow up on our November 1 meet-and-confer teleconference. I understood from that teleconference that Entrata opposes Yardi’s plan to submit a status report to the Court asking the Court for a trial date. As I mentioned during our call, the trial date we intend to request is March 12, 2018. As you noted, it is possible that the Court is not available then, but we will not know until we ask. Our primary concern is to have the trial date set as soon as reasonably


2

practicable, with a pretrial schedule consistent with the Court’s comments in the December 16, 2016 pretrial conference. We also know of no other reasonable method to alert the Court to our concern that the case be set for trial, and I did not hear you offer any alternative to us submitting a report and making the request. During our call, I understood you to propose that the parties instead jointly submit a status report and request in which they would: (a) ask the Court to send the matter to mediation after Utah discovery closes; and (b) if the matter doesn’t settle, then set a trial date some point thereafter. We have discussed this internally, and decline this proposal. The primary concern is that it will result in several months’ additional delay in obtaining a trial date. As always, we will consider any proposals regarding mediation you would like to make. We therefore plan to submit our status report and trial date request to the Court today. I’m available if you would like to discuss this further. Thank you --Jason

Jason P. GonzalezPartner [email protected] T 213-629-6019 | C 213-379-2778 | F 866-233-7749 Nixon Peabody LLP | 300 South Grand Avenue, Suite 4100 | Los Angeles, CA 90071-3151 nixonpeabody.com | @NixonPeabodyLLP

Please consider the environment before printing this email.

This email message and any attachments are confidential and may be protected by the attorney/client or other applicable privileges. The information is intended to be conveyed only to the designated recipient(s) of the message. If you are not an intended recipient, please notify the sender immediately and delete the message from your email system. Unauthorized use, dissemination, distribution or reproduction of this message by other than the intended recipient is strictly prohibited and may be unlawful. Thank you.

From: Acker, Eric M. [mailto:[email protected]] Sent: Tuesday, October 31, 2017 11:30 AM To: Gonzalez, Jason <[email protected]> Cc: Andreu-von Euw, Christian G. <[email protected]> Subject: RE: Yardi v. Entrata - Trial Preparation

Jason -

It will have to be later in the day – I am open between 2:30 and 5:00 p.m. tomorrow.

Eric

From: Gonzalez, Jason [mailto:[email protected]] Sent: Monday, October 30, 2017 5:35 PM To: Acker, Eric M. Cc: Jacobs, Michael A.; Prendergast, Mary; EntrataYardiUT; Hyder, Andrea C. Subject: RE: Yardi v. Entrata - Trial Preparation

- External Email -

Eric – Thanks for the letter. Are you free at 1:30 on November 1 to meet-and-confer? --Jason


3

From: Hyder, Andrea C. [mailto:[email protected]] Sent: Monday, October 30, 2017 3:50 PM To: Gonzalez, Jason <[email protected]> Cc: Ubence, Corinne <[email protected]>; Ornelas, Heidi <[email protected]>; Ocks, Matthew <[email protected]>; Acker, Eric M. <[email protected]>; Jacobs, Michael A. <[email protected]>; Prendergast, Mary <[email protected]>; EntrataYardiUT <[email protected]> Subject: Yardi v. Entrata - Trial Preparation

Good afternoon,

Please find attached correspondence from Eric Acker.

Thank you,

ANDREA HYDER

Legal Secretary to Eric M. Acker | Morrison & Foerster LLP

12531 High Bluff Drive | San Diego, CA 92130-2040

P: +1 (858) 720-5102

mofo.com | LinkedIn | Twitter

From: Ocks, Matthew [mailto:[email protected]] Sent: Friday, October 27, 2017 5:43 PM To: Acker, Eric M. Cc: Gonzalez, Jason; Ubence, Corinne; Ornelas, Heidi Subject: Yardi v. Entrata - Trial Preparation

- External Email -

Counsel:

On behalf of Jason Gonzalez at Nixon Peabody, attached please find a PDF of a letter also being set via regular mail today.

Thank you, Matthew Ocks

Matthew W. OcksGlobal Resource Assistant [email protected] T 213-629-6168 | F 213-629-6001 Nixon Peabody LLP | 300 South Grand Avenue, Suite 4100 | Los Angeles, CA 90071-3151nixonpeabody.com | @NixonPeabodyLLP

Please consider the environment before printing this email.

This email message and any attachments are confidential and may be protected by the attorney/client or other applicable privileges. The information is intended to be conveyed only to the designated recipient(s) of the message. If you are not an intended recipient, please notify the sender immediately and delete the message from your email system. Unauthorized use, dissemination, distribution or reproduction of this message by other than the intended recipient is strictly prohibited and may be unlawful. Thank you.

============================================================================


4

This message may be confidential and privileged. Use or disclosure by anyone other than an intended addressee is prohibited. If you received this message in error, please delete it and advise the sender by reply email.

============================================================================


============================================================================



jason p. gonzalez (sbn 178768) nixon peabody, llp floor los … · 2019-07-26 · 4830-3155-7202.2...

Documents