Re-ordering of the issues for better clarity....regarding "inequitable conduct defense"

On April 3, 2015, Defendants Micron Consumer Products Group, Inc. and Micron Technology, Inc. (collectively, “Micron”) filed a motion for leave to amend their answer and counterclaim. (Doc. No. 64.) 1 On April 20, 2015, Plaintiff e.Digital Corporation (“e.Digital”) filed a response in opposition. (Doc. No. 69.) Additionally, 1 At oral argument, Micron withdrew the motion to amend the counterclaim.

e.Digital raised discovery issues regarding Micron’s responses to certain discovery requests. On April 22, 2015, the Court held a hearing on Micron’s motion to amend and on the parties’ discovery disputes.

2 The Court takes under submission Defendants’ motion to amend the answer.
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product. The Court orders Micron to review its responses to e.Digital’s discovery requests in light of the Court’s comments at the hearing and supplement or amend its responses accordingly.

Both sides agree, and the Court agrees, to extend the time for expert reports, expert discovery, and pretrial scheduling.

The court wants Micron to comply with e.Digitals requests regarding Microns new discovery issues to " seek at this very late date leave to amend their answers and counterclaims to add an inequitable conduct defense and related counterclaim(s)." The court seems to be milling it over and has allowed extra time...at what point it might allow Micron to amend answer as to inequitable conduct defense is anyone's guess...

5. All fact discovery must be completed on or before May 11, 2015. All expert discovery must be completed on or before August 5, 2015. “Completed” means that all discovery under Rules 30-36 of the Federal Rules of Civil Procedure must be initiated a sufficient period of time in advance of the cut-off date, so that it may be completed by the cut-off date, taking into account the times for services, notice, and response as set forth in the Federal Rules of Civil Procedure.

Additionally, the Court orders the parties to continue with Rule 30(b)(6) depositions and source code discovery. If, after conducting Rule 30(b)(6) depositions, e.Digital has an additional discovery request concerning those limited issues, e.Digital must promptly make a motion to the Court and show good cause and diligence. Additionally the parties submitted a joint proposed modification of the Court’s scheduling order as to certain pretrial matters. This issue, not contained on docket, is in contrast to a prior Motion to stay case that was denied ; 4-15-14 and 4-16-14.

Under Federal Rule of Civil Procedure 16(b)(4), “a schedule may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). When determining whether good cause exists to modify a scheduling order, the court examines the moving party’s diligence. In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013). Under the Court’s August 5, 2014 scheduling order, the deadline to amend pleadings was October 6, 2014 and e.Digital’s infringement contentions were due by August 19, 2014 and the last day to amend infringement contentions was December 1, 2014. (Case No. 13-cv-2889, Doc. No. 26 at 2, 5, 9.) Both sides argue that they have shown good cause and diligence in their request to amend the scheduling order, but oppose the other side’s request, contending that the other side has not shown good cause and diligence for the other side’s modification of the schedule.

In general, the Court holds to its scheduling order, finding a lack of good cause and diligence, except to modify the following dates and deadlines:
1. The Court orders the parties to act in accordance with the Court’s directions and orders at the April 22, 2015 hearing.
2. The Court, exercising its discretion, declines to allow e.Digital to amend its infringement contentions to add Micron’s eMMC product and will not, absent further order, compel Micron to produce discovery materials regarding its eMMC

My concerns are for Microns motion to amend answer...where its looking like e.Digital utilized it's right to amend just as Micron wishes to amend, more or less stalling the issue, or more or less noting it has right as Micron has right. With that, " absent further order", if Micron gets to amend its answer... e.Digital will be able to amend its infringement contentions to add Micron’s eMMC.

That which was ruled "without prejudice" must have been e.Digitals eMMC consideration allowing e.Digital to revisit if needed...as Micron withdrew its counter claim issue. I see nothing else ruled on in the body of the text.

doni