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Paul Allen v. the World lurches forward - Judge says no delay on initial disclosures
Tuesday, November 02 2010 @ 08:51 AM EDT

The Paul Allen against the World case is moving forward. In fact, faster than the parties probably expected. There was a stipulation to extend time to complete initial disclosures from November 1 to two weeks past whenever the claims were clearer, either through an amended complaint or two weeks after infringement contentions are due. But the judge denied it. And he goes on to remind the parties that the date for filing the joint status report is November 8.

The strange part is, I don't see how the parties can comply when Allen's complaint is so vague. Even Gene Quinn, who thinks the sun rises and sets on patents, said it was "a complaint without any substantive information and naked recitation of a variety of patents that have 'one or more' unspecified claims being infringed for unspecified reasons." How do the defendants provide initial disclosures to that? Plus Google has an undecided motion seeking to dismiss the complaint for failure to state a claim.

Maybe the judge found the complaint a little annoying too, and so he intends to punish the plaintiff by insisting on the schedule even though nobody knows what the claims specifically are? Dream on. This is the style, Quinn wrote, that trolls favor, and courts don't seem to ever clip their wings. Here's what initial disclosures are.

Everything is happening on November 8, SCO's bankruptcy hearing where they have to reveal the highest bidder, if any, for their assets, this scheduled deadline, and the EFF Pioneer Awards ceremony. Good thing Groklaw is a group effort.

11/01/2010 - 117 - MOTION for Extension of Time to Complete Discovery by Defendant Yahoo! Inc. (Attachments: # 1 Proposed Order) Noting Date 11/1/2010, (Walters, Mark) (Entered: 11/01/2010)

11/01/2010 - 118 - NOTICE of Withdrawal of Motion re 117 MOTION for Extension of Time to Complete Discovery ; filed by Defendant Yahoo! Inc. (Walters, Mark) (Entered: 11/01/2010)

11/01/2010 - 119 - Agreed Stipulated MOTION to Extend Time for Service of Initial Disclosures by Defendant Yahoo! Inc. (Attachments: # 1 Proposed Order) Noting Date 11/1/2010, (Walters, Mark) (Entered: 11/01/2010)

11/01/2010 *** Motion terminated: 117 MOTION for Extension of Time to Complete Discovery filed by Yahoo! Inc. (IM) (Entered: 11/01/2010)

11/01/2010 - 120 - ORDER denying 119 Stipulated Motion by Judge Marsha J. Pechman.(IM) (Entered: 11/01/2010)

The reason the parties wanted a later date sounded good to me:

The parties, through undersigned counsel of record, hereby move jointly for an order to extend the deadline for the service of Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1). The current deadline for initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1) is November 1, 2010. (See Docket Entry No. 25, Order Regarding Initial Disclosures, Joint Status Report, and Early Settlement.) The parties seek an order extending this deadline until the earlier of two weeks after infringement contentions are due under the Court’s scheduling order or two weeks after the plaintiff serves an amended complaint.
Here's the judge's thinking:
This matter comes before the Court on the parties’ stipulated motion to extend the time for service of initial disclosures. (Dkt. No. 119.) The Court DENIES the motion. The Court does not find good cause to amend the date for initial disclosures. The parties must comply with the Court’s initial scheduling order. (Dkt. No. 25.) The Court reminds the parties that the Joint Status Report/Discovery Plan as required by FRCP 26(f) and Local Rule CR 16 is due by November 8, 2010.
But look at what the parties are to provide:
(1) Initial Disclosures.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party — who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Presumably, Allen has to comply and finally tell us what this lawsuit is actually about. Until he does, how in the world do the accused comply with any of it? You don't know what documents are relevant or what employees might have evidence until you know what it is you allegedly did. Maybe that's the judge's point, to force the issue and cut the gaming short.

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