Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-01536-JJF Document 43 Filed O1/O9/2006 Page 1 of 3
Youno CoNAwAY STARGATT & TAYLOR, LLP
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DIRECT FAx; (302) 571-1253
l January 9, 2006
Bv E·Fili1zg and Hand Deliverv
The Honorable Kent A. Jordan
United States District Court
for the District of Delaware
844 North King Street
Wilmington, DE 19801
Re: Honeywell [nfl, [nc., et czl. v. Audiovox Comm. Corp., et al.,
C.A. No. 04-1337-KAJ
Honeywell ]nt’l, [nc., et al. v. Apple Computer, Inc., etal.,
C.A. No. 04-1338-KAJ
Opfrex America, [nc. v. Honeywell ]nf’l, Inc., et al.,
C.A. No. O4-1536-KAJ
Dear Judge Jordan:
Pursuant to the Court’s order of October 7, 2005, I write on behalf of Optrex America,
Inc. ("Optrex") to further report on the progress made by the parties towards developing a
schedule.
I. Optrex’s efforts to resume discovery with Honeywell
In May of 2005, Optrex and Honeywell agreed to stay discovery as to each other pending
resolution of a schedule for identification by the customer defendants of the products at issue.
During the past five months, Optrex has attempted on three occasions (September 23, 2005,
November 17, 2005, and January 4, 2006) to resume discovery between Optrex and Honeywell
in an effort to advance the progress of the case. In each instance, Optrex noted that both
Honeywell and Optrex had served written discovery on each other in the spring of 2005 and
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Case 1:04-cv-01536-JJF Document 43 Filed O1/O9/2006 Page 2 of 3
Youno CoNAwAY STARGATT & TAYLOR, LLP
The Honorable Kent A. Jordan
January 9, 2006
Page 2
Optrex proposed that the parties respond promptly to the outstanding discovery requests. On
January 4, 2006, Optrex clarified (in the event there was any confusion) that Optrex sought only
resumption of written discovery (not the taking of depositions) between Optrex and Honeywell.
Over the past five months, Honeywell has refused to agree even that Optrex and
Honeywell should respond to discovery requests already served on each other. Honeywell
advised that it was concerned that other defendants would be disadvantaged by having Optrex
and Honeywell resume discovery and that proceeding with discovery between Optrex and I
Honeywell might "ball Optrex respectfully suggests that resuming only written discovery as to Honeywell and
Optrex will advance the case as the Court has requested. To the extent that Honeywell provides
documents and information to Optrex that are of interest to other defendants, that information
can be served on other defendants at the same time it is provided to Optrex. This approach will
help avoid duplicative discovery in the future. ln addition, the information produced will also be
available as additional defendants join the case, thereby allowing progress to occur before all
defendants have appeared.
As Optrex has repeatedly pointed out to Honeywell, the Court never stayed discovery as
to Optrex and Honeywell.2 Optrex is concerned that during the delay in discovery memories
may fade and documents may be lost both with respect to Honeywell and, equally importantly,
third parties. Moreover, Optrex respectfully submits that it is entitled to have Honeywell answer
discovery already served on Honeywell concerning Optrex products. Honeywell’s refusal to
respond to discovery requests concerning Optrex products harms Optrex by adding unnecessary
uncertainty to Optrex’s business.
II. Honevwell’s proposed schedule
Optrex has also briefly reviewed the proposed schedule set forth by Honeywell in a draft
report sent to the defendants on January 6, 2005. Optrex is continuing to review the report and
looks forward to discussing the proposal with Honeywell. Nonetheless, Optrex wishes to advise
I To date, only one defendant expressed concerns with Optrex’s proposal, and those concerns
related to the extent that discovery between Optrex and Honeywell might affect the scope of that
defendant’s ability to take discovery of Honeywell. However, Optrex submits that proceeding
now with written discovery between Honeywell and Optrex should have no bearing on the scope
of any other party’s written discovery of Honeywell.
2 On a related point, because Optrex and Honeywell already held a Rule 26(f) conference on
April 27, 2005, there is no need for a second Rule 26 conference as to Optrex and Honeywell.
Instead, Optrex submits that written discovery between Honeywell and Optrex should resume
and proceed simultaneously with discussions on the schedule for the rest of the case.
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Case 1:04-cv-01536-JJF Document 43 Filed O1/O9/2006 Page 3 of 3
Younc CoNAwAY STARGATT & TAYLOR, LLP
The Honorable Kent A. Jordan
January 9, 2006
Page 3
the Court that Optrex will object to some of Honeywell’s proposals, such as the very limited
number of` deposition hours of Honeywell and third parties. However, Optrex does not object to
the specific dates proposed by Honeywell in its "proposed schedule" so long as the adoption of
those dates is not contingent on resolution ofthe Honeywell concerns set forth in the draft report.
Instead, Optrex supports entering the proposed schedule dates recognizing, as in any other case,
that any party may rnove for modification ofthe schedule at a later date if good cause is shown.
Respectfully submitted,
.4/ A ,
Karen L. Pascale (#2903)
[[email protected]]
cc: Clerk of Court (by CMF/ECP E—Filing)
CM/ECP Counsel of Record (by E-Filing)
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