Free Declaration in Support - District Court of California - California

Case 5:06-cv-01839-PVT

Document 326

Filed 05/22/2008

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Yitai Hu (SBN 248085) ([email protected]) Sean P. DeBruine (SBN 168071) ([email protected]) AKIN GUMP STRAUSS HAUER & FELD LLP 3000 El Camino Real, Suite 400 Palo Alto, California 94306 Telephone: 650-838-2000 Facsimile: 650-838-2001 Attorneys for Plaintiff and Counterdefendant ELANTECH DEVICES CORPORATION

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ELANTECH DEVICES CORP., Plaintiff, vs. SYNAPTICS, INC and AVERATEC, INC., Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 3:06-CV-01839 CRB DECLARATION OF SEAN P. DEBRUINE IN SUPPORT OF ELANTECH'S MOTION TO TAKE PRELIMINARY INJUNCTION MOTION OFF CALENDAR PENDING TRANSFER OF THE CASE OR, IN THE ALTERNATIVE, MOTION FOR CONTINUANCE

I, Sean P. DeBruine declare and state as follows: 1. I am a partner with the law firm of Akin Gump Strauss Hauer & Feld, LLP,

counsel to Elantech Devices Corporation ("Elantech") in this matter. I am a member in good standing of the bar of California and the bar of this Court. I have personal knowledge of the facts in this Declaration unless otherwise stated and could competently testify to them if called as a witness. 2. At the May 9, 2008 Case Management Conference, the Court suggested that the

parties consent to the transfer of this case to a Magistrate Judge for all purposes. Counsel for Synaptics stated that he would consult with his client but was personally amenable to such a
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transfer. Notwithstanding the possibility that the case would soon be transferred, that afternoon Synaptics filed a Motion for Preliminary Injunction purporting to set a hearing date of May 30, 2008. 3. Last week I spoke with counsel for Synaptics about a number of outstanding

issues. During that conversation I mentioned the incongruity of potentially transferring the case to a Magistrate Judge but calendaring a motion before Judge Breyer. I also recall stating that Elantech would at any rate ask for additional time to respond to the motion and stating that this issue should be resolved when the parties decided whether or not to consent to transfer the case. 4. On May 21, 2008 I spoke with counsel for Synaptics in which we both

communicated our clients' agreement to transfer the case to a Magistrate Judge. Synaptics suggested a particular Magistrate. While I was personally amenable to that suggestion, upon further consideration my client was not. I spoke with counsel again today and indicated that Elantech might not approve the first suggestion. During that conversation we arrived at another name that would be acceptable to both parties. After receiving the final decision from my client to agree to the second Magistrate, I left a voice message and sent an email to counsel for Synaptics indicating that that effect to Counsel for Synaptics and provided a revised draft Case Management Conference Statement. As of the execution of this declaration I have not received a response from Synaptics. 5. Today I also raised with counsel for Synaptics the issue of the hearing and

briefing schedule for the pending motion. Counsel for Synaptics did not recall our conversation last week, insisted that the motion be heard by Judge Breyer on May 30, 2008 and refused to grant any continuance. 6. Elantech's expert witness in this matter is a professor at York University in

Toronto, Canada. On information and belief, when Synaptics filed its motion he was completing the spring term and was administering and grading exams and papers. Dr. MacKenzie was not able to immediately review the voluminous materials filed with Synaptics' motion and begin to prepare a response.
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7.

I was traveling out of the office last to attend to long-planned business in our New

York and Washington DC offices. During that time I was also involved in opposing post-trial motions in a recently-completed case. Those oppositions were filed on May 15, while reply briefs are being completed and will be filed today. Others involved in representing Elantech also participated in preparing those briefs. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 22nd day of May, 2008 at Palo Alto, California.

/s/ Sean P. DeBruine

SEAN P. DEBRUINE DEC ISO ELANTECH'S MOTION TO TAKE PRELIM. INJUNCTION MOTION OFF CALENDAR PENDING TRANSFER OF THE CASE OR IN THE ALTERNATE MOTION FOR CONT. 3 6244435

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