International Business Machines Corporation v. Groupon, Inc.

REPLY BRIEF re MOTION for Two-Week Extension of Post-Trial Briefing Schedule

D. Del.August 15, 2018

{01354881;v1 } IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE INTERNATIONAL BUSINESS MACHINES CORPORATION, Plaintiff, v. GROUPON, INC. Defendant. ) ) ) ) ) ) ) ) ) ) C.A. No. 16-122-LPS GROUPON, INC.’S REPLY IN SUPPORT OF EXPEDITED MOTION FOR TWO-WEEK EXTENSION OF POST-TRIAL BRIEFING SCHEDULE While IBM opposes the requested two week extension, it does not allege prejudice. In- stead, IBM alleges that it would have “just one remaining week to submit its opposition”, not three weeks. IBM is confused. This Court’s briefing schedule states that IBM’s answering brief is due “21 days after filing of post-trial motions and briefs.” [D.I. 399] If, as Groupon respect- fully requests, Groupon’s motion filing date is extended by two weeks, IBM’s answering brief would move automatically because IBM is afforded 21 days to file its answering brief as set forth in the Court’s scheduling order. Id. IBM speculates that Groupon’s new counsel may have been retained for more than a few days. In fact, Groupon’s new counsel has only been retained since the end of business last Fri- day (three business days ago). IBM asserts that three weeks is sufficient to review the case rec- ord and prepare important post-trial motions. The requested extension is a reasonable and meas- ured request given the size and importance of the task and is consistent with common practice. Case 1:16-cv-00122-LPS Document 405 Filed 08/15/18 Page 1 of 3 PageID #: 18665 {01354881;v1 } 2 Lastly, IBM’s allegation of a rule violation compels response. New counsel for Groupon contacted Mr. Desmarais who is on vacation overseas time zones away. Mr. Desmarais re- quested email, instead of a phone call, as a faster form of communication. As a professional courtesy, Groupon did not demand a verbal meet and confer with lead counsel on vacation and sent a written request instead. Mr. Oussayef responded on behalf of Mr. Desmarais, and far from welcoming a discussion, sent an email (attached, Ex. 1) that definitively refused the extension request; just as IBM’s brief still does. Based on this record, both lead counsel and Delaware counsel concluded that the meet and confer requirement was effectively satisfied. Insofar as IBM seeks a commensurate two-week extension for its motions, Groupon does not oppose it – although IBM never requested it during the parties’ meet and confer. Of Counsel: J. David Hadden Saina S. Shamilov FENWICK & WEST LLP 801 California Street Mountain View, CA 94041 (650) 988-8500 Phillip J. Haack Sapna Mehta Jessica Benzler Athul K. Acharya FENWICK & WEST LLP 555 California Street, 12th Floor San Francisco, CA 94104 (415) 875-2300 Jessica Kaempf FENWICK & WEST LLP 1191 Second Avenue, 10th Floor Seattle, WA 98101 (206) 389-4510 ASHBY & GEDDES /s/ Andrew C. Mayo _________________________________ John G. Day (#2403) Andrew C. Mayo (#5207) 500 Delaware Avenue, 8th Floor P.O. Box 1150 Wilmington, DE 19899 (302) 654-1888 jday@ashbygeddes.com amayo@ashbygeddes.com Attorneys for Defendant Groupon, Inc. Case 1:16-cv-00122-LPS Document 405 Filed 08/15/18 Page 2 of 3 PageID #: 18666 {01354881;v1 } 3 George I. Lee Sean M. Sullivan LEE SULLIVAN SHEA & SMITH LLP 224 North Desplaines Street, Suite 250 Chicago, IL 60661 (312) 754-9602 Edward R. Reines WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 (650) 802-3000 Mark A. Perry GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036-5306 (202) 887-3667 Dated: August 15, 2018 Case 1:16-cv-00122-LPS Document 405 Filed 08/15/18 Page 3 of 3 PageID #: 18667