Free Motion to Compel - District Court of Arizona - Arizona

1 MICHAEL O. SUTTON Texas State Bar No. 19535300 2 Federal Bar No. 416565441 3 STEVEN S. BOYD Texas State Bar No. 24001775 4 Federal Bar No. 22772 NATHAN C. DUNN 5 Texas State Bar No. 24036509 6 LOCKE LIDDELL & SAPP LLP 600 Travis St., Suite 3400 7 Houston, Texas 77002 Telephone: (713) 226-1200 8 Facsimile: (713) 223-3717 9 Attorneys for Plaintiff, LEXCEL SOLUTIONS, INC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1PLAINTIFF'S MOTION TO COMPEL OR ALTERNATIVELY FOR ACCESS TO DOCUMENTS Case 2:03-cv-01454-JAT LITIGATION 144 Filed 08/29/2005 Page 1 of 5 PRODUCED IN COMPANION Document

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA PHOENIX DIVISION

LEXCEL SOLUTIONS, INC., an Arizona Corporation Plaintiffs, v.

MASTERCARD INTERNATIONAL, INC. and MASTERCARD INTERNATIONAL, LLC. both Delaware Corporations Defendants.

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CIVIL ACTION NO. CV 03-1454 PHX-JAT

PLAINTIFF'S MOTION TO COMPEL DOCUMENTS OR ALTERNATIVELY FOR ACCESS TO DOCUMENTS PRODUCED IN COMPANION LITIGATION JURY DEMANDED

1 2 3 4 5 Alternatively Access to Documents Produced in Companion Litigation and would show the LEXCEL SOLUTIONS, INC. ("LEXCEL" OR "PLAINTIFF"), pursuant to Federal Rule of Civil Procedure 37 and Local Rule 37.1, files this Motion To Compel Documents or

6 Court as follows. 7 Lexcel moves the Court for an order compelling MasterCard International, Inc. and

8 MasterCard International, LLC (collectively "MasterCard" or "Defendants") to produce 9 10 requests for production and inspection of documents that were served on November 26, 2003, 11 12 13 but which have not been produced to date. Lexcel served requests for production of documents, which sought documents for the documents for inspection and copying that have been proven to exist and that are covered by

14 purposes of preparation for the trial in this matter. See Lexcel's First Set of Requests for 15 Production, attached as Exhibit 1 to the Memorandum of Points and Authorities.1 This action 16 17 18 MasterCard's attempts to replace Lexcel as its supplier of certain simulation and testing is an action for breach of contract and copyright infringement, among other claims, based on

19 software. Two document requests specifically sought documents related to Lexcel's software 20 and MasterCard's alternate software. See Exhibit 1; see also Lexcel's Rule 37.1 Statement 21 accompanying this motion. MasterCard served its responses to these discovery requests on 22 23 objections. See Exhibit 1. However, it has come to the attention to counsel for Lexcel that 24 25 26 27 28 -2PLAINTIFF'S MOTION TO COMPEL OR ALTERNATIVELY FOR ACCESS TO DOCUMENTS Case 2:03-cv-01454-JAT LITIGATION 144 Filed 08/29/2005 Page 2 of 5 PRODUCED IN COMPANION Document
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January 23, 2004, with general objections but agreed to produce documents subject to those

additional, relevant documents exist and have not been produced.

All Exhibits referenced in this motion are attached to the Memorandum of Points and Authorities.

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As is more full set forth in the Declaration of Victoria Curtin, documents have been

2 produced in the companion case, MasterCard International Inc. et al v. Lexcel Solutions, Inc., 3 4 5 6 Declaration of Victoria Curtin, attached as Exhibit 2. As shown in the attached Memorandum of Points and Authorities, there is no NO. CV 04-1336-PHX-NVW, which is a patent case base on the same software. See

7 reasonable justification for the continued refusal to produce the documents in question for 8 inspection and copying. 9 10 expanding the protective order in this case to encompass all documents produced in the 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3PLAINTIFF'S MOTION TO COMPEL OR ALTERNATIVELY FOR ACCESS TO DOCUMENTS Case 2:03-cv-01454-JAT LITIGATION 144 Filed 08/29/2005 Page 3 of 5 PRODUCED IN COMPANION Document

Therefore an order compelling MasterCard to produce these

documents under Federal Rule of Civil Procedure 37(a)(4)(A) or in the alternative an order

companion litigation is necessary.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 Of Counsel: 15 STEVEN S. BOYD 16 Texas State Bar No. 24001775 Federal Bar No. 22772 17 [email protected] NATHAN C. DUNN 18 Texas State Bar No. 24036509 19 [email protected] LOCKE LIDDELL & SAPP LLP 20 600 Travis St., Suite 3400 Houston, Texas 77002 21 Telephone: (713) 226-1200 Facsimile: (713) 223-3717 22 23 24 25 26 27 28 -4PLAINTIFF'S MOTION TO COMPEL OR ALTERNATIVELY FOR ACCESS TO DOCUMENTS Case 2:03-cv-01454-JAT LITIGATION 144 Filed 08/29/2005 Page 4 of 5 PRODUCED IN COMPANION Document

Respectfully submitted, Dated: August 29, 2005 LOCKE LIDDELL & SAPP LLP

By: s/ Nathan C. Dunn MICHAEL O. SUTTON Texas State Bar No. 19535300 Federal Bar No. 416565441 [email protected] LOCKE LIDDELL & SAPP LLP 600 Travis St., Suite 3400 Houston, Texas 77002 Telephone: (713) 226-1200 Facsimile: (713) 223-3717 Attorney for Plaintiff Lexcel Solutions, Inc.

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CERTIFICATE OF CONFERENCE

On July 27, 2005, I conferenced via email with counsel for Plaintiffs MasterCard 3 International, Inc. and MasterCard International, L.L.C., regarding seeking MasterCard's joining in the filing of this motion. MasterCard opposes this Motion and the correspondence is 4 attached to the memorandum as Exhibit 3. 5 6 7 8 9 10 CERTIFICATE OF SERVICE s/ Michael O. Sutton w/p Nathan C. Dunn Michael O. Sutton

Copy of the foregoing was sent via FedEx, return receipt requested, this 29th day of AUGUST, 11 2005 to: 12 VIA FEDEX 13 Sid Leach SNELL & WILMER 14 One Arizona Center 400 E. Van Buren 15 Phoenix, AZ 85004-2202 16 VIA FEDEX 17 Thomas Cummings ARMSTRONG TEASDALE LLP 18 One Metropolitan Square, Suite 2600 19 St Louis, MO 63102-2740 20 ATTORNEYS FOR DEFENDANTS MASTERCARD INTERNATIONAL, INC. AND 21 MASTERCARD INTERNATIONAL, LLC 22 23 24 25 26 27 28 -5PLAINTIFF'S MOTION TO COMPEL OR ALTERNATIVELY FOR ACCESS TO DOCUMENTS Case 2:03-cv-01454-JAT LITIGATION 144 Filed 08/29/2005 Page 5 of 5 PRODUCED IN COMPANION Document

s/ Nathan C. Dunn Nathan C. Dunn