" On August 5, 2014, this Court issued its final scheduling order which stated in pertinent part, “Any motion to join other parties, to amend the pleadings, or to file additional pleadings must be filed on or before October 6, 2014.” (Page 5, Paragraph 3, Lines 3-4 of Dkt #26 in the previous lead case, e.Digital Corporation v. Accelerated Memory Production Inc., Case No. 3:13-cv-02889-H-BGS). The order further stated, “The dates and times set forth in this order will not be modified except for good cause shown.” (Id., Page 14, Paragraph 27, Lines 10-11)."

" On August 29, 2014 the Court set the trial schedule, specifically stating in its order, “The dates and times set forth in this order will not be modified except for good cause shown, or on the Court’s own motion. Any party requesting a modification of this order must file a motion within thirty (30) days of the date of this order.” (Dkt No. 32 in the previous lead case, e.Digital Corporation v. Accelerated Memory Production Inc., Case No. 3:13-cv-02889-H-BGS). No request to modify this order was made by the Defendants until the motion at hand, well after the 30 days had passed."

For the above defendant is going to have to give some real hard facts for the court to break its agenda.

RE: the build up of "inequitable conduct defense." based on date related material.

"B. Relevant Discovery History On or about August 19, 2014, Plaintiff produced documents Bate Stamped EDIG00001-006275. (See, Exhibits L-M). Within that production were documents concerning the Flashback device, the Norris Flash File System (“NFFS”), annual reports discussing the Flashback device, and press releasesconcerning the release of the Flashback device. (See, Exhibits N-O). Schematics for the Flashback device and technical documents concerning the NFFS were provided. Defendants, in fact, used many of these documents as exhibits at the March 2015 depositions of Elwood Norris (“Norris”) and Daberko. See, Pages 4-5, ¶¶19-27, Declaration of Anton N. Handal (“Decl. Handal”) filed herewith."

"On or about August 22, 2014, the parties participated in a Rule 26(f) conference and, as of that date, the Defendants could have propounded discovery."

"During the March 2015 depositions, Defendants even had their own Flashback device that they had purchased from e.Bay before the deposition took place. Defendants also produced their own Flashback related documents at these depositions, clearly reflecting the fact that they had obtained these documents and should have known of an alleged inequitable conduct defense well before the March 2015 depositions."

1.The defence is being built on information that was freely aviable.

2. Information that was, infact, submitted as "Relevant Discovery History"

3. And apparently, "Defendants also produced their own Flashback related documents at these depositions".....

With that, they had the information way back in the proceedings to formuate the considered date related defence.

IMO, if the defendat in fact carried it's own Flashback, NFFS date related material into the March deposition...it was playing a game that should have been taken care of early on in the proceedings.

doni