New Medium Technologies LLC et al v. Barko N.V. et al Doc.

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Case 5:07-mc-80226-JF Document 2 Filed 09/24/2007 Page 1 of 5

MARTHA C. LUEMERS SBN 104658

1 DORSEY & WHITNEY LLP
1717 Embarcadero Road
2 P.O. Box 51050
Palo Alto, California 94303
3 Telephone: (650) 857-1717
Facsimile: (650) 857-1288
4 E-mail: eFilingPA@dorsey.com
HTU UTH

E-mail: luemers.martha@dorsey.com
5
PAUL T. MEIKLEJOHN, Pro Hac Vice App. Pending
6 DOUGLAS F. STEWART, Pro Hac Vice App. Pending
DORSEY & WHITNEY LLP
7 U.S. Bank Centre
1420 Fifth Ave., Suite 3400
8 Seattle, WA 98101
Telephone: (206) 903-8800
9 Facsimile: (206) 903-8820
E-mail: meiklejohn.paul@dorsey.com
10 E-mail: stewart.douglas@dorsey.com
11 Attorneys for Defendants
TOSHIBA CORPORATION and
12 TOSHIBA AMERICA CONSUMER
PRODUCTS LLC
13
UNITED STATES DISTRICT COURT
14
NORTHERN DISTRICT OF CALIFORNIA
15
SAN JOSE DIVISION
16
NEW MEDIUM TECHNOLOGIES LLC, AV
TECHNOLOGIES LLC, J. CARL COOPER, MISC. CASE NO. CV 07 80226 JF (RS)
17
PIXEL INSTRUMENTS CORPORATION, IP
INNOVATION LLC, and TECHNOLOGY Underlying Action
18
LICENSING CORPORATION, USDC Northern District of Illinois
19 Eastern Division
Plaintiffs, Civil Action No. 05-CV-5620
20
v. DECLARATION OF PAUL T.
21 MEIKLEJOHN IN SUPPORT OF
BARCO N.V., MIRANDA TECHNOLOGIES, MOTION TO COMPEL DEPOSITION
22 TOSHIBA CORPORATION, TOSHIBA OF JERRY B. TORRANCE, JR.
AMERICA CONSUMER PRODUCTS, L.L.C.,
23 and SYNTAX-BRILLIAN CORPORATION, Date: To be determined
Time: To be determined
24 Dept.: To be determined
Defendants.
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DECLARATION OF PAUL T. MEIKLEJOHN

MISC. CASE NO. CV 07 80226 JF (RS)
Dockets.Justia.com
 Case 5:07-mc-80226-JF Document 2 Filed 09/24/2007 Page 2 of 5

1 Paul T. Meiklejohn declares:

2 1. I am a partner at the law firm of Dorsey & Whitney, LLP, which represents

3 defendants Toshiba Corporation and Toshiba America Consumer Products L.L.C. (collectively

4 “Toshiba”) in this case. I am over 21 years of age and competent to testify to the matters stated

5 herein.

6 2. This is a case for alleged patent infringement. During the prosecution of one of

7 the patents-in-suit, Jerry B. Torrance, Jr. (“Torrance”) submitted a personal declaration to the

8 U.S. Patent and Trademark Office in support of the pending patent application. Torrance’s

9 declaration was instrumental to the issuance of the patent. As counsel for Toshiba, I am seeking

10 to examine Torrance about his declaration.

11 3. On August 6, 2007, Torrance was personally served with a subpoena issued by

12 my law firm on behalf of Toshiba. The subpoena commanded Torrance to appear for a

13 deposition in this judicial district on August 27, 2007—twenty-one (21) days after the subpoena

14 was served.

15 4. On August 10, 2007, one of the plaintiffs’ attorneys in this case (Paul Gibbons)

16 wrote a letter to me stating that he was now representing Torrance. Mr. Gibbons’ letter and

17 attachment objected to the request for documents contained in the subpoena, and objected to the

18 timing of the scheduled document production, but said nothing about the scheduled deposition

19 date.

20 5. Mr. Gibbons and I communicated by telephone, email, and letter numerous times

21 about Mr. Torrance’s deposition. Initially, Mr. Gibbons stated that Torrance was available to be

22 deposed on only one day, August 23, 2007. That date conflicted with a previously scheduled

23 deposition, which I was defending, of a Toshiba witness traveling from Japan. Later, Mr.

24 Gibbons stated that Torrance was available on August 22, another date that conflicted with a

25 previously scheduled deposition of a Toshiba witness which I was defending. I told Mr. Gibbons

Declaration of Paul T. Meiklejohn – Page 1 DECLARATION OF PAUL T. MEIKLEJOHN

MISC. CASE NO. CV 07 80226 JF (RS)
 Case 5:07-mc-80226-JF Document 2 Filed 09/24/2007 Page 3 of 5

1 that I could not take the deposition on either August 22 or 23 because of the previously

2 scheduled depositions of Toshiba witnesses on those days. This information was well-known to

3 Mr. Gibbons, because he was personally involved in scheduling the depositions of the Toshiba

4 witnesses traveling from Japan, including the depositions scheduled for August 22 and 23.

5 6. I advised Mr. Gibbons that I was willing to find an alternative date for the

6 Torrance deposition. I identified August 24 and August 28 as examples of dates when I could

7 take the deposition. Mr. Gibbons stated that Torrance would only make himself available on the

8 two dates mentioned above.

9 7. Shortly before the deposition date set forth in the subpoena, and while we were

10 both attending another deposition in this case, I spoke again with Mr. Gibbons about the

11 Torrance deposition. Mr. Gibbons told me that Mr. Torrance was leaving the jurisdiction that

12 day, and would not be available during the remainder of the discovery period. I asked Mr.

13 Gibbons if Mr. Torrance would agree to appear for his deposition upon his return. Mr. Gibbons

14 said no. Mr. Gibbons stated that Mr. Torrance had offered to make himself available on August

15 22 and 23 (when I was not available), and because I did not agree to take the deposition on one

16 of those days, Toshiba was precluded from taking the deposition.

17 8. On Wednesday August 29, 2007, the trial court (Hon. Amy St. Eve) extended the

18 deadline for taking fact depositions to October 19, 2007. Believing that this would open up more

19 days when Torrance could be deposed, I wrote a letter to Mr. Gibbons on September 10, 2007,

20 asking again if Torrance would make himself available for a deposition either before or after the

21 October 19 deadline. Mr. Gibbons has not responded to my letter.

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Declaration of Paul T. Meiklejohn – Page 2 DECLARATION OF PAUL T. MEIKLEJOHN

MISC. CASE NO. CV 07 80226 JF (RS)
 Case 5:07-mc-80226-JF Document 2 Filed 09/24/2007 Page 4 of 5

1 9. Attached as exhibits hereto are true and correct copies of the following

2 documents:

3 Exhibit
U U Description
U U

4 A Subpoena dated July 26, 2007 to Jerry B. Torrance, Jr., with Exhibit A
thereto and “Proof of Service” declaration by process server;
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B Notice of Deposition of Jerry B. Torrance, Jr. dated July 27, 2007 with
6 attached copy of subpoena to Jerry B. Torrance, Jr.;
7 C Plaintiffs “Corrected Fourth Amended Complaint” filed August 15, 2007;
8 D Toshiba America Consumer Products, L.L.C.’s Answer and
Counterclaims to Plaintiffs’ Corrected Fourth Amended Complaint;
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E Declaration of Jerry B. Torrance, Jr. dated July 26, 2001, filed with the
10 United States Patent and Trademark Office, and exhibits thereto;
11 F Minute entry before the Hon. Amy St. Eve ordering (fact) depositions to
be completed by October 19, 2007;
12
G Letter from Paul C. Gibbons (counsel for Torrance) to Paul T. Meiklejohn
13 (counsel for Toshiba) dated August 10, 2007, with attached “Objections to
Toshiba’s August 6, 2007 Subpoena to Jerry B. Torrance, Jr.”;
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H Letter from Paul T. Meiklejohn (counsel for Toshiba) to Paul C. Gibbons
15 (counsel for Torrance) dated August 15, 2007;
16 I Letter from Paul C. Gibbons (counsel for Torrance) to Paul T. Meiklejohn
(counsel for Toshiba) dated August 16, 2007;
17
J Letter from Paul C. Gibbons (counsel for Torrance) to Paul T. Meiklejohn
18 (counsel for Toshiba) dated August 21, 2007;
19 K Letter from Paul C. Gibbons (counsel for Torrance) to Paul T. Meiklejohn
(counsel for Toshiba) dated August 22, 2007; and
20
L Email from Paul T. Meiklejohn (counsel for Toshiba) to Paul C. Gibbons
21 (counsel for Torrance) dated August 22, 2007.
22 M Letter from Paul T. Meiklejohn (counsel for Toshiba) to Paul C. Gibbons
(counsel for Torrance) dated September 10, 2007.
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Declaration of Paul T. Meiklejohn – Page 3 DECLARATION OF PAUL T. MEIKLEJOHN

MISC. CASE NO. CV 07 80226 JF (RS)
 Case 5:07-mc-80226-JF Document 2 Filed 09/24/2007 Page 5 of 5

1 I declare under penalty of perjury that the foregoing is true and correct.

2 Signed at Colorado Springs, Colorado this _____ day of September, 2007.

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U /S/
5 Paul T. Meiklejohn
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Attorney Signature Attestation
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I, Martha C. Luemers, hereby attest that I have on file all holographic signatures for any
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signatures indicated by a conformed signature within this e-filed document.
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10 U /S/ U

MARTHA C. LUEMERS
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Declaration of Paul T. Meiklejohn – Page 4 DECLARATION OF PAUL T. MEIKLEJOHN

MISC. CASE NO. CV 07 80226 JF (RS)