Free Declaration in Support - District Court of California - California

Case 5:06-cv-01839-PVT

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KARL J. KRAMER (CA SBN 136433) ERIKA L. YAWGER (CA SBN 234919) LAURA MASON (CA SBN 252251) MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, California 94304-1018 Telephone: 650-813-5600 Facsimile: 650-494-0792 [email protected] Attorneys for Defendant and Counterclaimant SYNAPTICS, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

ELANTECH DEVICES CORPORATION, a corporation existing under the laws of Taiwan, R.O.C., Plaintiff, v. SYNAPTICS, INC., a Delaware corporation; AVERATEC, INC., a California corporation; and PROSTAR COMPUTER, INC., a California corporation, Defendants.

Case No.

C06-01839 CRB

DECLARATION OF ERIKA L. YAWGER IN OPPOSITION TO ELANTECH'S MOTION TO TAKE PRELIMINARY INJUNCTION MOTION OFF CALENDAR PENDING TRANSFER OF CASE OR, IN THE ALTERNATIVE, MOTION FOR CONTINUANCE

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YAWGER DECL. IN OPP. TO MOTION TO TAKE PRELIM. INJUNCTION MOTION OFF CALENDAR, OR MOTION FOR CONTINUANCE CASE NO. C06-01839-CRB pa-1257674

AND RELATED COUNTERCLAIMS

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I, Erika L. Yawger, hereby declare as follows: 1. I am a member of the bar of the State of California, and I am admitted before this

Court. I am an attorney with the law firm of Morrison & Foerster LLP, counsel of record for Synaptics, Inc. ("Synaptics") in the above-captioned action. I have personal knowledge of the facts set forth herein and, if called as a witness, I could competently testify thereto. 2. From May 9, 2008 until approximately 2:14 p.m. on May 22, 2008, Elantech's

counsel never communicated with me about the need or desire for additional time to oppose Synaptics' motion for preliminary injunction. 3. On the afternoon of Thursday, May 22, 2008, Elantech's counsel, Sean P. DeBruine,

sent an e-mail message to me requesting an extension of time to oppose Synaptics' motion for preliminary injunction. A true and correct copy of the May 22, 2008 e-mail from Mr. DeBruine is attached hereto as Exhibit A. 4. Upon receipt of Mr. DeBruine's e-mail, I immediately called him and expressed my

surprise that Elantech was asking for an extension of time the day before their opposition brief was due. I reminded Mr. DeBruine that we never previously spoke about an extension of time. Indeed, on the Wednesday that Mr. DeBruine claims that he spoke with me, I was out of the office all day representing a client in a settlement negotiation. Following my telephone conversation with Mr. DeBruine, I sent an e-mail response summarizing our discussion. A true and correct copy of this e-mail is attached hereto as Exhibit B. 5. Mr. DeBruine requested a three-week extension of time during our phone

conversation on May 22, 2008, and I told him that I would have to discuss his request with our client and lead trial counsel, Mr. Kramer. I responded later that day to Mr. DeBruine's e-mail, indicating that due to the urgent nature of Synaptics' motion, Synaptics could not agree to an extension of time. A true and correct copy of my May 22, 2008 letter to Mr. DeBruine is attached hereto as Exhibit C. 6. On May 21, 2008, Mr. DeBruine and I met and conferred to discuss the possibility of

trying the case before a Magistrate Judge. During this conversation, I told Mr. DeBruine that Synaptics agreed to try the case before Magistrate Judge Seeborg in accordance with the Court's
YAWGER DECL. IN OPP. TO MOTION TO TAKE PRELIM. INJUNCTION MOTION OFF CALENDAR, OR MOTION FOR CONTINUANCE; CASE NO. C06-01839-CRB pa-1257674

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suggestion. Mr. DeBruine told me at that time that his clients also agreed to try the case before Magistrate Judge Seeborg. At around 10:30 a.m. the next morning, Mr. DeBruine called me to say that he erroneously agreed to Magistrate Judge Seeborg, and that he would need to speak with his client again to determine whether they would agree to try the case with Judge Seeborg. During this conversation, we also discussed different magistrate judges that we might also be able to propose to our respective clients in the event that Elantech did not agree on Judge Seeborg. No agreement was reached concerning a particular Magistrate Judge. 7. After business hours on Thursday, May 22, Mr. DeBruine left me a voicemail

message informing me that Elantech would not agree to try the case before Magistrate Judge Seeborg. We have communicated this change in position to our client, and continue to meet and confer with Elantech regarding whether the parties will be able to agree to try the case with a different Magistrate Judge. 8. Before Elantech filed its motion for preliminary injunction in December 2007, Mr.

Kramer and I informed Mr. DeBruine that we would be traveling internationally and unavailable from December 21, 2007 through the first week of January 2008. Nevertheless, on December 14, 2007, Elantech filed a motion for preliminary injunction and noticed the hearing date for January 18, 2008. Upon receipt of Elantech's motion, Synaptics counsel promptly left a voice-mail message for Mr. DeBruine, and followed up with an e-mail to Mr. DeBruine and Elantech's other counsel, Yitai Hu, to remind them that counsel would be out of the country and unavailable on the date the opposition brief was due. 9. Mr. DeBruine e-mailed back, saying that Elantech had "no problem rescheduling the

hearing for February 1" and that they "did not intend to make the opposition date coincide with [our] absence." The parties thus stipulated to a two-week extension of time for the hearing on Elantech's motion to accommodate Synaptics' counsel's well-known travel plans. True and correct copies of Mr. Kramer's e-mail to Mr. DeBruine and Mr. Hu, and Mr. DeBruine's response, are attached hereto as Exhibit D. 10. Before Synaptics filed its motion for preliminary injunction, I discussed the

possibility of a stipulated preliminary injunction order with counsel for Elantech. During this
YAWGER DECL. IN OPP. TO MOTION TO TAKE PRELIM. INJUNCTION MOTION OFF CALENDAR, OR MOTION FOR CONTINUANCE; CASE NO. C06-01839-CRB pa-1257674

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discussion, Elantech never mentioned any need for additional time to respond to a motion for preliminary injunction. I declare under penalty of perjury under the laws of the United States of America that, to the best of my knowledge, the foregoing is true and correct. Executed on May 27, 2008, in Palo Alto, California. /s/ Erika L. Yawger Erika L. Yawger E-mail: [email protected]

I, Karl J. Kramer, am the ECF User whose ID and password are being used to file this DECLARATION OF ERIKA L. YAWGER IN OPPOSITION TO ELANTECH'S MOTION TO TAKE PRELIMINARY INJUNCTION MOTION OFF CALENDAR PENDING TRANSFER OF CASE OR, IN THE ALTERNATIVE, MOTION FOR CONTINUANCE. In compliance with General Order 45, X.B., I hereby attest that Erika L. Yawger has concurred in this filing.

Dated: May 27, 2008

MORRISON & FOERSTER LLP By: /s/Karl J. Kramer Karl J. Kramer Email: [email protected] Attorneys for Defendant and Counterclaimant SYNAPTICS, INC.

YAWGER DECL. IN OPP. TO MOTION TO TAKE PRELIM. INJUNCTION MOTION OFF CALENDAR, OR MOTION FOR CONTINUANCE; CASE NO. C06-01839-CRB pa-1257674

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