UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Ford Motor Company,

Plaintiff/

Counter-Defendant,

v.

Versata Software, Inc., f/k/a Trilogy 

Software, Inc., Trilogy Development 

Group, Inc. and Trilogy, Inc., 

Defendants/

Counter-Plaintiffs.

Case No. 15-10628-MFL-EAS 

(consolidated with Case No. 15-cv-11624)

Hon. Matthew F. Leitman

JURY TRIAL DEMANDED

FORD MOTOR COMPANY’S MOTION TO 

ADJOURN REBUTTAL EXPERT REPORTS AND 

SUBSEQUENT CASE DEADLINES

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55276 Filed 05/08/20 Page 1 of 22
i

CONCISE STATEMENT OF ISSUE PRESENTED

1. Should the Court adjourn Ford’s rebuttal expert reports for 60 days 

after Michigan’s Governor lifts her “stay home” orders so that the necessary Ford 

employees, experts and counsel can work collaboratively together to perform the 

complex “apportionment” analysis necessary for Ford’s rebuttal expert reports on 

the damages issue. It is neither practical nor secure for the necessary individuals to 

perform the software apportionment remotely, and the adjournment will cause no 

harm to Versata. 

Ford answers: Yes.

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55277 Filed 05/08/20 Page 2 of 22
ii

TABLE OF CONTENTS

CONCISE STATEMENT OF ISSUE PRESENTED .............................................. i

TABLE OF AUTHORITIES ................................................................................ iv

MOTION............................................................................................................... 1

BRIEF IN SUPPORT OF MOTION...................................................................... 1

I. INTRODUCTION ....................................................................................... 1

II. FACTUAL BACKGROUND ...................................................................... 3

A. COVID-19 created an unprecedented disruption nationally and 

in Michigan........................................................................................ 3

B. COVID-19 has materially disrupted the operations of Ford and 

its outside counsel.............................................................................. 5

C. Ford did what it could to move the case along in compliance 

with the Governor’s stay-home order................................................. 7

D. Versata did not object to Ford’s proposal to suspend all “other 

items lacking an immediate deadline” until after the Governor’s 

stay-home order(s) expire .................................................................. 7

III. ARGUMENT .............................................................................................. 8

A. Good cause exists for adjourning rebuttal expert reports until 60 

days following termination of the Governor’s stay-home order ......... 8

1. Ford cannot practically conduct the rebuttal 

apportionment analysis remotely in compliance with the 

Governor’s stay-home order .................................................. 10

2. This Court and other courts have adjourned expert report 

deadlines in view of COVID-19 and the Governor’s 

orders..................................................................................... 13

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55278 Filed 05/08/20 Page 3 of 22
iii

B. Versata will not be prejudiced by a short delay necessary to 

enable Ford to perform the apportionment and prepare rebuttal 

expert reports....................................................................................14

1. Versata’s actions have significantly delayed this case............ 14

2. Neither Ford nor Versata are competing in the market 

with their respective software ................................................ 15

IV. CONCLUSION ..........................................................................................16

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55279 Filed 05/08/20 Page 4 of 22
iv

TABLE OF AUTHORITIES

Cases

Alioto v. Town of Lisbon, 

651 F.3d 715 (7th Cir. 2011)........................................................................ 9

Copeland v. Sadler et al., 

Case No. 19-cv-13404, Dkt. #16 (E.D. Mich. April 24, 2020) ....................13

Elsherif v. Mayo Clinic, 

2020 WL 1441959, *1 (D. Minn. Mar. 24, 2020)........................................13

Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 

831 F.3d 815 (7th Cir. 2016)........................................................................ 9

Family Trust v. John Hancock Life Ins. Co., 

424 Fed. Appx. 377 (5th Cir. 2011) ............................................................. 8

Fitzpatrick v. Bridgestone Retail Operations, LLC, 

Case No. 1:18-cv-12576, Dkt. #59 (E.D. Mich. April 22, 2020) .................13

Jackson-El v. City of Markham, 

332 F.R.D. 583 (N.D. Ill. 2019) ................................................................... 9

Johnson v. Mammoth Recreations, Inc., 

975 F.2d 604, 609 (9th Cir. 1992)................................................................ 9

Meaux Surface Protection, Inc. v. Fogleman, 

607 F.3d 161 (5th Cir. 2010)........................................................................ 9

Weidman v. Ford Motor Company, 

Case No. 2:18-cv-12719, Dkt. #67 (E.D. Mich. April 15, 2020) .................13

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55280 Filed 05/08/20 Page 5 of 22
v

Other Authorities

MCL 10.33 ............................................................................................................ 5

MCL 30.405 .......................................................................................................... 5

Rules

Fed. R. Civ. P. 16................................................................................................... 8

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55281 Filed 05/08/20 Page 6 of 22
1

MOTION

For the reasons set forth below in the accompanying Brief in Support, Ford 

Motor Company (“Ford”) moves for an order adjourning its rebuttal expert report 

deadline, and subsequent case deadlines, until 60 days after Michigan’s Governor 

lifts her executive “stay-home” orders.

Pursuant to Local Rule 7.1(a), counsel for Ford and counsel for Defendants 

(collectively “Versata”) held a conference during which Ford explained the nature 

of the motion and the relief sought. Versata did not concur.

BRIEF IN SUPPORT OF MOTION

I. INTRODUCTION

Ford moves for an order adjourning its rebuttal expert report deadline, and 

subsequent case deadlines, until 60 days after Michigan’s Governor lifts her 

executive stay-home orders. This will provide Ford’s relevant software 

developers, Ford’s technical and damages experts, and Ford’s counsel, the time 

necessary to perform the complex “software apportionment” required by law and 

this Court’s prior exclusion orders on apportionment and damages. Since vacating 

the last-entered case calendar (Dkt. #706), the Court set trial for October 6, 2020 

but not pretrial calendar has been entered.

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55282 Filed 05/08/20 Page 7 of 22
2

With over 4,300 confirmed deaths due to COVID-19, Michigan is among the 

hardest hit regions in America. Michigan is in a state of emergency and Ford’s

relevant fact and expert witnesses, and counsel, remain subject to the Governor’s

stay-home orders through May and possibly June. While Ford has attempted to do 

what it can in this case remotely, without in-person collaboration in violation of the 

Governor’s orders, Ford is unable, as a practical matter, to effectively perform the 

software apportionment necessary for its rebuttal expert reports. Ford’s rebuttal 

analysis requires the combined and parallel input of Ford software developers, 

technical experts, and outside counsel to jointly sift through tens of thousands of 

lines of computer source code and software functions to “apportion” the software 

and functions relevant to Versata’s various trade secret claims, from: (i) the 

software and functions relevant to Versata’s asserted patent claims, (ii) the 

software relevant to Versata’s dropped patent claims, (iii) open-source software 

third-parties developed, and (iv) the software and functions Versata does not make 

a claim against. It is not practically possible to perform this complex and timeconsuming exercise on an individual basis or remotely through a “portal.”

In addition, the online collaboration portals, such as “WebEx” and “Zoom,” 

have had published security vulnerabilities in which uninvited strangers could gain 

access to “private” online collaboration sessions. Consistent with the source code 

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55283 Filed 05/08/20 Page 8 of 22
3

provisions of the parties’ stipulated Protective Order (Dkt. #102, §10), Ford is not 

comfortable placing its proprietary computer source code online in these portals.

Versata was not hamstrung by a pandemic or stay-home orders, and was not 

forced to place its software online in an unsecure environment, when it prepared 

two separate rounds of expert reports. Had Versata’s expert reports not been 

excluded (twice), this case would have been tried in July 2018 or November 2019. 

Versata will suffer no prejudice from the requested adjournment because 

neither Versata, nor Ford, are marketing the at-issue software. Ford uses its 

accused software only internally and subject to confidentiality restrictions. Indeed, 

Versata did not oppose Ford’s proposal in March to adjourn pretrial dates until 

after Michigan’s Governor lifts her stay-home order.

For these reasons, and as explained in more detail below, Ford requests an 

order adjourning rebuttal expert reports, and subsequent case deadlines, until 60 

days after the Michigan Governor lifts her executive stay-home orders.

II. FACTUAL BACKGROUND

A. COVID-19 created an unprecedented disruption

nationally and in Michigan

The World Health Organization declared COVID-19 a global pandemic, 

emphasizing it is “not just a public health crisis[;] it is a crisis that will touch every 

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55284 Filed 05/08/20 Page 9 of 22
4

sector.”1 As of May 6, 2020, the WHO reported 1,171,185 confirmed cases in the 

U.S. Id. On March 13, 2020, President Trump proclaimed that the COVID-19 

outbreak constitutes a national emergency.2 President Trump also announced that 

the United States, Canada, and Mexico have closed their borders to nonessential 

travel.3 Furthermore, the State Department issued a Global Level 4 Health 

Advisory – “Do Not Travel,” recommending United States citizens avoid global 

travel and advised that the United States has closed its borders to such travel by 

international visitors.4

As of May 7, 2020, Michigan had nearly 45,000 confirmed COVID-19 cases 

and over 4,300 confirmed deaths due to the virus.5 Michigan’s Governor has 

recognized that the virus brought “deep disruption to this state’s economy, homes, 

and educational, civic, social, and religious institutions.” (Executive Order 2020-

42.) On March 23, 2020, the Governor issued a statewide stay-home order, 

restricting non-essential business operations. (Executive Order 2020-21.) The 

1 See https://www.who.int/dg/speeches/detail/who-director-general-s-openingremarks-at-the-media-briefing-on-covid-19---11-march-2020

2 See https://www.whitehouse.gov/presidential-actions/proclamation-declaringnational-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ .

3 See https://www.nytimes.com/article/coronavirus-travel-restrictions.html.

4 See https://travel.state.gov/content/travel/en/traveladvisories/ea/travel-advisoryalert-global-level-4-health-advisory-issue.html.

5 See https://www.google.com/search?q=united+states+covid+19+map&rlz= 

1C1GCEA_enUS900US900&oq=united+states+covi&aqs=chrome.2.69i57j0l7.45

43j0j4&sourceid=chrome&ie=UTF-8

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55285 Filed 05/08/20 Page 10 of 22
5

Governor issued her most recent stay-home order on May 7, 2020, which extends 

through May 28, 2020. (Executive Order No. 2020-77.) The Governor’s order 

states, subject to exceptions, which do not apply to relevant witnesses in this case, 

that “all individuals currently living within the State of Michigan are ordered to 

stay at home or at their place of residence,” and that “all public and private 

gatherings of any number of people occurring among persons not part of a single 

household are prohibited.” Id., ¶2. The order additionally prohibits “operat[ing] a 

business or conduct[ing] operations that require workers to leave their homes or 

places of residence except to the extent that those workers are necessary to sustain 

or protect life.” Id., ¶4. Willful violations of the Governor’s order are punishable 

as a misdemeanor under MCL 10.33 and MCL 30.405(3). Id., ¶20.

B. COVID-19 has materially disrupted the operations of 

Ford and its outside counsel

Many businesses, including Ford and the law firms representing Ford, have 

implemented efforts to help prevent the spread of COVID-19, including instituting 

travel bans, prohibiting visitors at business facilities, and moving to a remote 

workforce.

Ford’s U.S. plants, and many of its non-U.S. plants, have suspended 

production and much of Ford’s workforce has been ordered to work from home, 

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55286 Filed 05/08/20 Page 11 of 22
6

with only essential workers reporting to work.

6

 While the Governor is permitting7

certain manufacturing plants to begin “pre-production work” next week as part of a 

“phased-in reengagement,” there is no indication that the Ford employees relevant 

to this case (i.e., Ford IT professionals and counsel), will be permitted to return to 

work during the COVID-19 pandemic and state of emergency. 

Remote operation of Ford’s relevant business, and of Ford’s outside counsel

in this case, creates significant and unprecedented obstacles to conducting the indepth work necessary for Ford’s rebuttal expert reports. For example, Brooks 

Kushman and Dykema have closed their physical workplaces and no return date 

has been set. All schools in Michigan have closed, as have all recreational 

activities, leaving school-age children at home through the end of the school year

and beyond. Like many Ford employees, some of Ford’s counsel have children at 

home who currently require homeschooling during business hours, who create

nearly continuous distractions (talking, screaming, laughing, crying, playing 

musical instruments, fighting, etc.), and who compete for Internet access during 

business hours to access and complete their online schoolwork. It is exceptionally 

6 https://media.ford.com/content/fordmedia/fna/us/en/news/2020/03/13/fordcoronavirus-statement.html

7 https://www.cnbc.com/2020/05/07/michigan-governor-to-allow-states-automanufacturing-to-reopen-monday.html

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55287 Filed 05/08/20 Page 12 of 22
7

difficult to perform complex technical and legal work under these circumstances 

for any prolonged period of time.

C. Ford did what it could to move the case along in 

compliance with the Governor’s stay-home order

On February 27, 2020, the Court set a briefing schedule on amendments to 

motions in limine that the parties previously filed in August 2019. (Dkt. #684, 

#686, #726.5.) Ford filed its amended motions before the Governor’s first stayhome order entered March 23, 2020, and Ford’s work on its response brief was 

also largely complete before the order. Similarly, Ford filed its reply brief 

surrounding its objection to the Special Master’s R&R on claim construction for 

the ‘080 Patent. Claim construction is a legal issue.

Because replies in support of Ford’s in limine and claim construction

motions were limited in scope and did not require input from Ford fact witnesses 

or Ford’s technical or damages experts, Ford’s outside counsel was able to 

complete them from home in compliance with the Governor’s stay-home order.

D. Versata did not object to Ford’s proposal to suspend all 

“other items lacking an immediate deadline” until after 

the Governor’s stay-home order(s) expire

While Ford was able to complete the briefing on the in limine motions and 

claim construction, Ford informed Versata of its intention to pick-up all “other 

items lacking an immediate deadline . . . after Michigan’s governor lifts her lockCase 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55288 Filed 05/08/20 Page 13 of 22
8

down order.” (Exhibit A, 3/26/2020 email from LeRoy to Krajewski.) Versata did 

not object to Ford’s proposal. (Id. 3/26/2020 email from Mitby to LeRoy.) But 

more than a month later, Versata reversed course stating that “it is essential to 

finalize a scheduling order.” (Exhibit B, 5/1/2020 email from Mitby to LeRoy.) 

Versata’s reversal has forced Ford to promptly file this motion to ensure the 

health and safety of its employees and representatives, and to ensure compliance

with the Governor’s stay-home orders.

III. ARGUMENT

A. Good cause exists for adjourning rebuttal expert reports 

until 60 days following termination of the Governor’s 

stay-home order

A scheduling order issued under Rule 16 may be modified for good cause. 

See Fed. R. Civ. P. 16(b)(4). “The good cause standard requires the party seeking 

relief to show that the deadlines cannot reasonably be met despite the diligence of 

the party needing the extension.” Family Trust v. John Hancock Life Ins. Co., 424 

Fed. Appx. 377, 381 (5th Cir. 2011) (internal quotations and citation omitted). 

“Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party 

seeking the amendment. The district court may modify the pretrial schedule ‘if it 

cannot reasonably be met despite the diligence of the party seeking the extension.’ 

Fed. R. Civ. P. 16 advisory committee’s notes (1983 amendment).” Johnson v. 

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55289 Filed 05/08/20 Page 14 of 22
9

Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (additional citations 

omitted). 

Generally, courts have found good cause for the requested extension where 

the parties have diligently attempted to meet the deadline, and their anticipated 

inability to do so is through no fault of their own. See e.g. Jackson-El v. City of 

Markham, 332 F.R.D. 583 (N.D. Ill. 2019) (citing Empress Casino Joliet Corp. v. 

Balmoral Racing Club, Inc., 831 F.3d 815, 832 (7th Cir. 2016) (good cause 

requirement for modification of schedule is “a standard that ‘primarily considers 

the diligence of the party seeking amendment.’”); Alioto v. Town of Lisbon, 651 

F.3d 715, 720 (7th Cir. 2011) (“In making a Rule 16 (b) good-cause determination, 

the primary consideration for district courts is the diligence of the party seeking 

amendment.”). Whether to allow an amendment to a scheduling order, a court 

considers: “(1) the explanation for the failure to timely move for leave to amend; 

(2) the importance of the amendment; (3) potential prejudice in allowing the 

amendment; and (4) the availability of a continuance to cure such prejudice.” 

Meaux Surface Protection, Inc. v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010)

(citations omitted). 

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55290 Filed 05/08/20 Page 15 of 22
10

1. Ford cannot practically conduct the rebuttal 

apportionment analysis remotely in compliance 

with the Governor’s stay-home order

The next deadline in this case concerns Ford’s rebuttal to the software 

“apportionment” analysis that Versata’s Seth Krauss performed, and the related 

damages calculations that Versata experts Elson and Bokhart performed on the 

asserted trade secrets and patents, respectively. Versata proposes that Ford 

complete that complex rebuttal analysis by June 15, 2020. But for several reasons, 

Ford cannot practically perform the rebuttal apportionment and damages analysis 

remotely, and still comply with the Governor’s order, to meet Versata’s proposed 

deadline.

First, the necessary apportionment requires the parallel participation of (i) 

Ford software developers familiar with the various aspects of the at-issue software 

comprising tens of thousands of lines of code, (ii) Ford’s technical and damages 

experts who must understand and ultimately adopt the apportionments, and (iii) 

Ford’s outside counsel familiar with the asserted trade secrets, the law of 

apportionment and damages, as well as the Court’s two orders setting parameters 

on the apportionment and damages determinations in this particular case. These 

individuals must collaboratively review thousands of lines of computer source 

code to apportion software and functions that are relevant to Versata’s everevolving trade secret claims from: (i) the software and functions relevant to 

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55291 Filed 05/08/20 Page 16 of 22
11

Versata’s asserted patent claims, (ii) the software relevant to Versata’s dropped

patent claims, (iii) open-source software that third-parties developed, and (iv) the

software and functions in the accused software that Versata did not make a claim 

against. Each participant in this process needs the others’ input and participation 

to collectively make the necessary apportionment determinations and damages 

calculations. It is not possible, as a practical matter, to do this complex analysis 

remotely through a small “portal” in which the code cannot effectively be reviewed 

or compared to the myriad alleged trade secret elements and “combinations.”

Second, Ford is concerned about sharing its proprietary source code in 

online meeting rooms. Indeed, Versata stipulated to a Protective Order in which:

access to a Party’s Source Code Material shall be provided only on 

“stand-alone” computer(s) (that is, the computer may not be linked to 

any network, including a local area network (“LAN”), an intranet or 

the Internet).

(Dkt. #102, Section 10(a).) Versata required Ford to strictly adhere to these 

provisions while reviewing Versata’s software. But in demanding that Ford 

perform its apportionment rebuttal “remotely” while the Governor’s stay-home 

order is in place, Versata is unconcerned about protecting to Ford’s software. 

In addition, the most popular video conferencing utilities, such as “Zoom” 

and “WebEx,” have suffered from significant security vulnerabilities. In late 

January 2020, WebEx fixed a “high-severity” vulnerability in its video 

conferencing platform, after it was discovered that strangers could access 

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55292 Filed 05/08/20 Page 17 of 22
12

password-protected meetings without authentication.8 On April 23, 2020, Zoom 

announced a “90-day” plan to improve security and privacy on the platform and 

address “an onslaught of security concerns surrounding the service.”9 This case is 

thus only two weeks into Zoom’s “90-day” plan to improve security. Ford is not 

comfortable presenting the proprietary source code at issue in this case through 

these online collaboration portals.

Finally, the identity and scope of Versata’s asserted trade secrets have been 

a moving target. Versata has described its alleged trade secrets very differently at 

different stages and times of this case. Most recently, long after the close of 

discovery, Versata shifted from an individual trade secret theory (with over 20 

individual secrets) to a four “combination” trade secret theory where each 

combination includes various “elements,” many of which Versata admits are wellknown. To meaningfully perform the apportionment analysis, Versata’s shifting 

positions must be addressed and reconciled in real-time with Ford’s technical 

expert and relevant software developers as the at-issue software is reviewed. This 

is separate layer of complexity making the apportionment and rebuttal damages 

analysis practically impossible to perform remotely through a “portal.”

8 https://www.siliconrepublic.com/enterprise/cisco-resolves-security-vulnerabilitywebex and https://tools.cisco.com/security/center/content/CiscoSecurityAdvisory/ 

cisco-sa-20200124-webex-unauthjoin

9 https://www.theguardian.com/technology/2020/apr/23/zoom-update-securityencryption-bombing

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55293 Filed 05/08/20 Page 18 of 22
13

2. This Court and other courts have adjourned 

expert report deadlines in view of COVID-19 

and the Governor’s orders

In recent weeks, judges in this district (and elsewhere) have adjourned

expert report deadlines, and other pretrial deadlines, in view of COVID-19. In 

Weidman v. Ford, for example, Judge Drain extended discovery deadlines into 

July, and expert reports to January 2021. See Weidman v. Ford Motor Company, 

Case No. 2:18-cv-12719, Dkt. #67 (E.D. Mich. April 15, 2020). Judge Goldsmith

recently extended a discovery calendar setting August 6, 2020 for disclosure of 

expert reports. See Copeland v. Sadler et al., Case No. 19-cv-13404, Dkt. #16 

(E.D. Mich. April 24, 2020). Judge Ludington recently extended a pretrial 

calendar, setting July 21, 2020 for disclosure of expert reports (for a trial set for 

September 22, 2020). See Fitzpatrick v. Bridgestone Retail Operations, LLC, Case 

No. 1:18-cv-12576, Dkt. #59 (E.D. Mich. April 22, 2020).

Other courts have issued opinions and guidance recognizing that given the 

unprecedented pandemic situation, civil litigation often cannot, and should not, 

proceed under schedules set before the pandemic, and that extensions of deadlines 

are justified and may be required to serve the best interests of the parties. See 

Elsherif v. Mayo Clinic, 2020 WL 1441959, *1 (D. Minn. Mar. 24, 2020) (“It is 

essential that all Minnesotans work together to slow the spread of this terrible 

pandemic. In addition, counsel and litigants need to be patient and understanding 

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55294 Filed 05/08/20 Page 19 of 22
14

with one another, and they should work cooperatively to adjust schedules as 

needed.”). 

B. Versata will not be prejudiced by a short delay

necessary to enable Ford to perform the apportionment 

and prepare rebuttal expert reports

Versata will not be prejudiced by the short delay necessary to enable Ford’s 

developers, expert and counsel to perform the software apportionment in person 

following expiration of the Governor’s stay-home order.

1. Versata’s actions have significantly delayed 

this case

This case was originally set for trial on July 24, 2018. (Dkt. #295.) The 

Court adjourned that trial date when (1) the Court excluded Versata’s original 

damages expert reports seeking windfall damages over $1.4 billion (Dkt. #507), 

and (2) Versata introduced claims against PDO “R2” causing the parties to, in the 

Court’s words, “take a timeout [for] full blown discovery on R2” (Dkt. #444 at 

120).10

Versata served a second round of damages expert reports, but the Court 

excluded those as well. (Dkt. 678.) The Court set a new trial date of November 5, 

10 A full year later, following a separate round of fact and expert discovery and 

Ford’s motion for summary judgment, Versata withdrew its claims against Ford’s 

“R2” software. (Dkt. #691.) 

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55295 Filed 05/08/20 Page 20 of 22
15

2019 (Dkt. #675) but adjourned that date to reconsider its earlier exclusion orders.

(Dkt. #706.) 

Had Versata not made windfall damages claims, and had Versata not 

pursued unfounded claims against Ford’s “R2” software, this case would have 

proceeded to trial in July 2018 or in November 2019. Versata’s assertion today 

that Ford must perform the apportionment and rebuttal work remotely during the 

COVID-19 pandemic, in a hamstrung manner, is unfounded.

2. Neither Ford nor Versata are competing in the 

market with their respective software

No harm is caused to Versata by a short extension of the case pending 

COVID-19 and compliance with the Governor’s orders because neither party is 

marketing the at-issue software or competing for market share. Versata declared 

its ACM and MCA software “End of Life” in early 2011 – nearly 10 years ago. 

(Dkt. #354 at 5-6.) Versata is no longer actively marketing its ACM or MCA 

software to customers. Similarly, Ford uses its accused PDO software only 

internally and subject to confidentiality restrictions.

For these reasons, a short delay of the calendar in this case in the wake of 

COVID-19 and the Governor’s stay-home orders will not prejudice Versata.

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55296 Filed 05/08/20 Page 21 of 22
16

IV. CONCLUSION

For the above reasons, Ford moves for an order adjourning rebuttal expert 

reports, and subsequent case deadlines, until 60 days after Michigan’s Governor 

lifts her executive stay-home orders.

Respectfully submitted, 

Dated: May 8, 2020 By: /s/ John S. LeRoy 

John S. LeRoy (P61964)

Thomas A. Lewry (P36399)

Frank A. Angileri (P45611)

Chanille Carswell (P53754)

Jonathan D. Nikkila (P75666)

1000 Town Center, 22nd Floor

Southfield, MI 48075

Tel.: 248-358-4400 / Fax: 248-358-3351

jleroy@brookskushman.com

tlewry@brookskushman.com

fangileri@brookskushman.com

ccarswell@brookskushman.com

jnikkila@brookskushman.com

James P. Feeney (P13335)

DYKEMA GOSSETT PLLC

39577 Woodward Ave, Suite 300

Bloomfield Hills, MI 48304

Ph: 248-203-0841

jfeeney@dykema.com

Attorneys for Plaintiff, Ford Motor 

Company

Case 2:15-cv-10628-MFL-EAS ECF No. 752, PageID.55297 Filed 05/08/20 Page 22 of 22