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Interval Licensing v. Google Scheduling Conference Notes: It's Back to Go, and the Judge Asks Defendants to Be Creative
Wednesday, December 15 2010 @ 12:59 AM EST

The parties in the Paul Allen v. the World-and-its-Dog patent infringement litigation, Interval Licensing v. Google et al, met with the judge assigned to this case, Marsha J. Pechman, on December 13. I don't think it looks too promising for severance, judging from the Order Memorializing the Conference. I gather Interval must have promised to file more specifics that will tie them all together in the amended complaint it intends to file. We'll see.

It must have been a circus, with so many defendants, all lawyered up, because one thing the judge asks for is that the defendants choose one spokesman, which she calls "a whip", to speak for all the defendants at future status conferences which the judge would prefer to hold by telephone. The judge suggests the parties find a way to all cooperate and not bother her unless it's necessary.

Meanwhile, all the motions for severance are terminated without prejudice, and the judge won't rule on them until after Interval Licensing files its amended complaint, at which point the defendants can refile or file amended motions. So, it's back to go. Interval has to start over, and do it right this time. We'll see.

Here are all the filings:

12/13/2010 - 148 - MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman- Dep Clerk: Rhonda Miller; Pla Counsel: Justin Nelson, Edgar Sargent, Matthew Berry; Def Counsel: Gerald Ivey, Christopher Carraway, Kristin Cleveland, Christen M.R. Dubois, Heidi Keefe, David Almeling, Jeremy Roller, Mark Walters, Dario Machleidt, Kevin McGann, Shannon Jost; CR: Barry Fanning; Status Conference held on 12/13/2010. Amended complaint and infringement contentions due 12/28/2010. Joint status report due 1/14/2011. (RM) (Entered: 12/14/2010)

12/14/2010 - 149 - ORDER MEMORIALIZING SCHEDULING CONFERENCE - The Court RESERVES RULING on the pending motions for severance. Joint Status Report due by 1/14/2011, by Judge Marsha J. Pechman. (MD) (Entered: 12/14/2010)

12/14/2010 - 150 - Stipulated MOTION For Withdrawal and Substitution of Counsel by Defendant AOL Inc. (Attachments: # 1 Proposed Order) Noting Date 12/14/2010, (Jost, Shannon) (Entered: 12/14/2010)

12/14/2010 - ***Motion terminated: 91 MOTION to Dismiss Joinder in Defs Google Inc. and YouTube's Motion to Dismiss or Sever for Misjoinder filed by Facebook Inc, 81 MOTION to Dismiss or Sever Pursuant to FRCP 20 & 21 filed by Apple Inc, 63 MOTION to Dismiss Party or Sever for Misjoinder Pursuant to Fed. R. Civ. P. 20 and 21 filed by Google Inc, YouTube LLC. (IM) (Entered: 12/14/2010)

The judge says she is reserving judgment on the motions to sever, but in reality her order sets up a system whereby all the defendants have to choose one spokesperson, when in reality they may not and probably do not have identical issues or identical interests. That's a very bad sign from my perspective. She writes:
Defendants are urged to consider cost-effective and creative ways of prosecuting this action, as explained in the status conference. In particular, Defendants should consider which issues are common to all Defendants.
I don't see why that is the defendants' burden. Why is it *their* obligation to "prosecute this action"? How about asking the plaintiff to tell what the infringement consists of and then what issues are common to all? She did toss out the plaintiff's complaint, telling Interval if it wants to file an amended complaint that it should be more specific, so that part is in the works, but how in the world can defendants be creative until that happens? I'm just saying that the wording, to me, hints that the judge seems inclined to keep all the defendants linked in the same chain, if there is any way, despite them letting her know they don't think it's appropriate.

Lawyers know how to "comply" with judges orders without actually doing so, of course, so this reminds me a bit of Magistrate Judge Brooke Wells asking SCO and IBM to fight fair and according to the rules. She wanted IBM and SCO to both behave with more "candid cooperation". Hahahahaha. Much later, she sanctioned SCO for not doing so, but in the early days she credited both parties as acting in good faith. And remember the football analogy? Of course, her order changed SCO's ways not one little bit that I could ever see.

So we'll see how this all shakes out as the judge gets to know everyone better. Because Interval will be filing an amended complaint, we've set up a Timeline page for it, IV v. Google. Here's the order memorializing the conference:






AOL, INC., et al.,


CASE NO. C10-1385 MJP


The Court held a status conference with the parties on December 13, 2010. This order memorializes the Courtís rulings on certain matters during the conference.

1. The parties are directed to file a new joint status report by no later than January 14, 2011. The parties are asked to give greater detail as to deadlines and the methods of sequencing discovery. The parties should also propose more specific dates for the case deadlines than were presented in the first joint status report. Defendants are asked to propose ways in which they can pursue common issues together in an effort to save resources and time. The parties are also invited to propose a schedule for status conferences that the Court will hold no less than every 90 days. These will be telephonic hearings unless otherwise specified by the Court.

2. Defendants are asked to meet and confer and select a whip. Defendants must identify the individual in the January 14, 2011 joint status report. This individual will be the spokesperson for Defendants for status conferences and other related hearings. If the parties cannot reach a decision, the Court will consider the issue if presented in the joint status report.

3. The Court RESERVES RULING on the pending motions for severance. (Dkt. Nos. 63, 81, 91.) The Court terminates the motions on the docket without prejudice or ruling. Defendants may refile the motions or file amended motions to sever after they have reviewed the amended complaint and infringement contentions and met and conferred. Defendants are urged to consider cost-effective and creative ways of prosecuting this action, as explained in the status conference. In particular, Defendants should consider which issues are common to all Defendants. The Court does not set a deadline for any future severance motions at this time. However, as part of the January 14, 2011 joint status report, the parties should propose dates by which motions to sever should be refiled or amended motions should be filed. The Court will then set a deadline.

4. For discovery disputes, the Court will entertain oral argument without briefing where all parties agree to have such a hearing. In such cases, the parties are requested to contact Judge Pechmanís law clerk, Ian Mensher, to set up the hearing. With regard to other discovery disputes where this procedure is not used, the Court urges the parties to use the unified format of Local Rule CR 37. As with all disputes, the parties are urged to work out differences among themselves before bringing matters for decision before the Court.

5. The Court reminds local counsel that they must instruct outside counsel as to the Courtís local rules and practices. The clerk is ordered to provide copies of this order to all counsel. Dated this 14th day of December, 2010.

Marsha J. Pechman
United States District Judge

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