Free Stream Media Corp. v. Alphonso Inc.

MOTION for Leave to File Amended Infringement Contentions

N.D. Cal.September 15, 2017

MOT. FOR LEAVE TO AMEND CASE NO. 3:17-CV-02107-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MATTHEW D. POWERS (Bar No. 104795) matthew.powers@tensegritylawgroup.com PAUL T. EHRLICH (Bar No. 228543) paul.ehrlich@tensegritylawgroup.com WILLIAM P. NELSON (Bar No. 196091) william.nelson@tensegritylawgroup.com JENNIFER K. ROBINSON (Bar No. 270954) jen.robinson@tensegritylawgroup.com SAMANTHA A. JAMESON (Bar. No. 296411) samantha.jameson@tensegritylawgroup.com NATASHA M. SAPUTO (Bar No. 291151) natasha.saputo@tensegritylawgroup.com TENSEGRITY LAW GROUP, LLP 555 Twin Dolphin Drive, Suite 650 Redwood Shores, CA 94065 Telephone: (650) 802-6000 Facsimile: (650) 802-6001 Attorneys for Plaintiff Free Stream Media Corp. d/b/a Samba TV UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION FREE STREAM MEDIA CORP., d/b/a SAMBA TV, Plaintiff, vs. ALPHONSO INC., ASHISH CHORDIA, RAGHU KODIGE, and LAMPROS KALAMPOUKAS, Defendants. Case No. 3:17-cv-02107-RS PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND ITS INFRINGEMENT CONTENTIONS Judge: Hon. Richard Seeborg Dept: Courtroom 3, 17th Floor Time: 1:30 pm Date: October 26, 2017 JURY TRIAL DEMANDED REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED Case 3:17-cv-02107-RS Document 214 Filed 09/15/17 Page 1 of 11 Case 3:17-cv-02107-RS Document 214 Filed 09/15/17 Page 2 of 11 Case 3:17-cv-02107-RS Document 214 Filed 09/15/17 Page 3 of 11 Case 3:17-cv-02107-RS Document 214 Filed 09/15/17 Page 4 of 11 Case 3:17-cv-02107-RS Document 214 Filed 09/15/17 Page 5 of 11 Case 3:17-cv-02107-RS Document 214 Filed 09/15/17 Page 6 of 11 Case 3:17-cv-02107-RS Document 214 Filed 09/15/17 Page 7 of 11 MOT. FOR LEAVE TO AMEND 7 CASE NO. 3:17-CV-02107-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 inquiry first considers whether the moving party was diligent in amending its contentions.” Rambus, Inc. v. STMicroelectronics, Inc., Case No. C 10-5449-RS, Dkt. No. 177, at 3 (N.D. Cal. June 5, 2013) (quotations omitted). Courts also consider whether the amendment will cause undue prejudice to the nonmoving party. Id. Patent Local Rule 3-6 provides that “[r]ecent discovery of nonpublic information about the Accused Instrumentality which was not discovered, despite diligent efforts, before the service of the Infringement Contentions” is a factor supporting a finding good cause. IV. ARGUMENT Samba has good cause to amend its Infringement Contentions. First, Samba has not delayed in bringing this Motion and does not have a dilatory or improper motive—i.e., Samba has demonstrated diligence. Second, Samba’s Motion is entirely premised on the revelation of new, nonpublic technical information about the Accused Instrumentalities from Alphonso’s witnesses following Rule 30(b)(6) depositions that completed only last week. Third, given that Samba is not accusing any new instrumentalities, and that the timing of the proposed amended contentions is a consequence of Alphonso’s own conduct in providing discovery, any potential prejudice is minimal and insufficient to overcome the good cause Samba has shown. A. Samba Has Diligently Moved to Amend “The diligence required for a showing of good cause has two phases: (1) diligence in discovering the basis for amendment; and (2) diligence in seeking amendment once the basis for amendment has been discovered.” Aylus Networks, Inc. v. Apple Inc., Case No. 13-cv-04700- EMC, Dkt. No. 172, at 7 (N.D. Cal. Aug. 28, 2015) (quotations and citations omitted). Alphonso cannot credibly challenge that Samba has satisfied either prong of the diligence requirement. The first prong is satisfied because, as described above, Samba has diligently sought evidence from Alphonso as to the operation of its accused products for months. Only in July 2017 did Alphonso even begin to provide (incomplete) substantive interrogatory responses concerning the operation of its products, and Alphonso presented two of its three key 30(b)(6) witnesses (and important source code) only in the last two weeks. Not only is the information Samba has only now learned new and nonpublic, but it contradicts documents Alphonso Case 3:17-cv-02107-RS Document 214 Filed 09/15/17 Page 8 of 11 Case 3:17-cv-02107-RS Document 214 Filed 09/15/17 Page 9 of 11 MOT. FOR LEAVE TO AMEND 9 CASE NO. 3:17-CV-02107-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 identify with specificity components previously identified more generally, and state how those components infringe. Additionally, any minimal prejudice that Alphonso may occur is self- inflicted. It was Alphonso that chose to respond “substantively” to Samba’s interrogatories only by identifying Messrs. Kalampoukas, Kodige and Chordia. Alphonso also chose to divide Samba’s Rule 30(b)(6) topics among these individuals in a manner that could present a complete picture of Alphonso’s products only after all of the depositions were completed, and scheduled their depositions to conclude just a week ago. Alphonso should not now be heard to claim prejudice from the consequences of its own conduct. Because Samba is not accusing new instrumentalities in its amended infringement contentions any potential prejudice is lessened because Alphonso will not need to take additional discovery in light of the changes. See GPNE Corp. v. Apple Inc., Case No: 5:12-cv-02885-LHK- PSG, 2013 U.S. Dist. LEXIS 166723, at *12-13 (N.D. Cal. Nov. 22, 2013). No new discovery will be required, because the contentions state only what Alphonso has long known and kept to itself, and which was only recently learned by Samba. Thus, this case differs from Vasudevan Software, Inc. v. MicroStrategy, Inc., Case No. C 11-06637 RS, 2012 U.S. Dist. LEXIS 194508, at *14 (N.D. Cal. Nov. 21, 2012), and Samba’s amendment does not “frustrate the purpose of the patent local rules.” Moreover, the mere fact that fact discovery will be closed by the time this Court decides this Motion does not preclude a finding of little or no prejudice to Alphonso. See Rambus, Case No. C 10-5449-RS, Dkt. No. 177, at 5-6. V. CONCLUSION For the foregoing reasons, Samba respectfully requests this Court grant it leave to amend its Infringement Contentions. Case 3:17-cv-02107-RS Document 214 Filed 09/15/17 Page 10 of 11 MOT. FOR LEAVE TO AMEND 10 CASE NO. 3:17-CV-02107-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: September 15, 2017 Respectfully submitted /s/ William P. Nelson Matthew D. Powers (Bar No. 104795) Paul T. Ehrlich (Bar No. 228543) William P. Nelson (Bar No. 196091) Jennifer K. Robinson (Bar No. 270954) Samantha A. Jameson (Bar. No. 296411) Natasha M. Saputo (Bar No. 291151) TENSEGRITY LAW GROUP, LLP 555 Twin Dolphin Drive, Suite 650 Redwood Shores, CA 94065 Telephone: (650) 802-6000 Facsimile: (650) 802-6001 Email: matthew.powers@tensegritylawgroup.com paul.ehrlich@tensegritylawgroup.com william.nelson@tensegritylawgroup.com jen.robinson@tensegritylawgroup.com samantha.jameson@tensegritylawgroup.com natasha.saputo@tensegritylawgroup.com samba service@tensegritylawgroup.com Attorneys for Plaintiff, Free Stream Media Corp. d/b/a Samba TV Case 3:17-cv-02107-RS Document 214 Filed 09/15/17 Page 11 of 11