Free Stipulation - District Court of California - California

Case 3:07-cv-02385-PJH

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Filed 03/20/2008

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M C D ERMOTT W ILL & E MERY LLP

MCDERMOTT WILL & EMERY LLP William G. Gaede III (136184) 3150 Porter Drive Palo Alto, CA 94304-1212 Telephone: (650) 813-5000 Facsimile: (650) 813-5100 Attorneys for J.R. Carlson Laboratories, Inc. and Metagenics, Inc. JONES DAY Behrooz Shariati (State Bar No. 174436) 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 739-3939 Facsimile: (650) 739-3900 Attorneys for Nordic Naturals, Inc.

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MPK 139869-1.062114.0123

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

NORDIC NATURALS, INC. Plaintiff, v J.R. CARLSON LABORATORIES, INC. and METAGENICS, INC. Defendants. AND RELATED COUNTERCLAIMS

Case No. C-07-02385 PJH

JOINT STATEMENT REGARDING PRE-TRIAL DEADLINES

The parties disagree on the pre-trial scheduling. Each side's position is given below.

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JOINT STATEMENT RE PRE-TRIAL DEADLINES CASE NO. C-07-02385 PJH

Case 3:07-cv-02385-PJH

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I.

DEFENDANTS' POSITION REGARDING SCHEDULING The Markman hearing in this case was originally scheduled for March 12, 2008, with trial

set for September 8, 2008 ­ a schedule that Plaintiff accepted without complaint. The Court shifted the Markman hearing to April 30, seven weeks later than originally scheduled, with a revised trial date of December 8, 2008, three months later than that previously set. Defendants believe that the pre-trial schedule they propose below permits adequate time for the parties to complete all pre-trial matters. Dates in bold font were set by Court at the March 13, 2008, Case Management Conference. Other dates are proposed by Defendants.

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PRE-TRIAL DISCOVERY DEADLINES Date April 11, 2008 April 16, 2008 April 30, 2008 May 30, 2008 Event Technology Tutorial Plaintiff's Reply Brief in Support Of Claim Construction Due Claim Construction Hearing Last day to exchange Expert Reports on issue on which the party bears the burden of proof (Disclosure of Expert Testimony) ­ Fact Discovery Closes Last day to file motions to compel fact discovery Last Day to exchange Rebuttal Expert Reports Close of Discovery, including Expert Discovery Last day to file Summary Judgment Motions Last day to file Opposition Briefs to Summary Judgment Motions Last day to file Reply Briefs in Support of Summary Judgment Motions Hearing on Summary Judgment Motions

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June 6, 2008 June 13, 2008 June 30, 2008 July 9, 2008 July 23, 2008 July 30, 2008 August 13, 2008 (120 Days before trial)

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JOINT STATEMENT RE PRE-TRIAL DEADLINES CASE NO. C-07-02385 PJH

Case 3:07-cv-02385-PJH

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M C D ERMOTT W ILL & E MERY LLP

PRE-TRIAL DISCOVERY DEADLINES Date November 13, 2008 December 8, 2008 II. Event Pretrial Conference Jury Trial

PLAINTIFF'S POSITION REGARDING SCHEDULING At the case management conference, Plaintiff expressed a belief that the December 8,

2008, trial date would be workable. However, after trying to fit the trial date into the Court's scheduling framework, the Plaintiff now believes the parties will not be able to effectively complete discovery and prepare their expert reports and complete all the other required tasks for trial under such an abbreviated schedule. Specifically, after factoring in the Court's scheduled Markman Hearing and 120 day pre-trial period, the parties will be left with a mere 70 days to complete all discovery, disclose expert witnesses, and prepare opening briefs on dispositive motions, and depending on the timing of the Court's order on claim construction, conduct a meaningful mediation. The Defendants' proposed schedule, allows only 30 days after the

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Markman hearing to complete discovery and to disclose expert witnesses despite the fact that the Court indicated that we should factor in 45-60 days for a Markman order after the hearing. Facing such an attenuated schedule, the parties will have very little time to resolve even routine discovery disputes on their own and would be obliged to quickly resort to motion practice, using up limited Court resources and possibly leading to discovery abuse. Rather than try to make an unrealistic schedule work and fail, Plaintiff respectfully requests that a more realistic trial date be set to allow the parties to prepare their respective cases in an orderly and efficient manner. The Plaintiff respectfully suggests that the parties discuss an alternate trial date at the Markman tutorial, currently set for April 11, 2009, or at another time at the Court's convenience.

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JOINT STATEMENT RE PRE-TRIAL DEADLINES CASE NO. C-07-02385 PJH

Case 3:07-cv-02385-PJH

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Dated: March 20, 2008 Respectfully submitted, Respectfully submitted,

By: _/s/ William G. Gaede, III____________ William G. Gaede III Attorneys for J.R. Carlson Laboratories, Inc. and Metagenics, Inc.

By:

/s/ Behrooz Shariati______________ Behrooz Shariati

Attorneys for Nordic Naturals, Inc.

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JOINT STATEMENT RE PRE-TRIAL DEADLINES CASE NO. C-07-02385 PJH