Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Filing 767

RESPONSE in Opposition re 735 MOTION for Reconsideration and Objections to Judge Love's Order Granting Bedrock's Motion For Leave To Supplement Expert Report of Roy Weinstein [Doc No 666] MOTION for Reconsideration and Objections to Judge Love's Order Granting Bedrock's Motion For Leave To Supplement Expert Report of Roy Weinstein [Doc No 666] filed by Bedrock Computer Technologies, LLC. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Baxter, Samuel)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION BEDROCK COMPUTER TECHNOLOGIES LLC, Plaintiff, v. SOFTLAYER TECHNOLOGIES, INC., et al. Defendants. § § § § § § § § § § § CASE NO. 6:09-cv-269-LED Jury Trial Demanded BEDROCK’S RESPONSE IN OPPOSITION TO DEFENDANTS’ OBJECTIONS TO AND MOTION FOR RECONSIDERATION OF JUDGE LOVE’S ORDER GRANTING BEDROCK’S MOTION FOR LEAVE TO SUPPLEMENT EXPERT REPORT OF ROY WEINSTEIN Dallas 322301v1 Plaintiff Bedrock Computer Technologies LLC (“Bedrock”) hereby submits its response in opposition to Defendants’ Objections to and Motion for Reconsideration of Judge Love’s Order Granting Bedrock’s Motion for Leave to Supplement Expert Report of Roy Weinstein (Dkt. No. 735). Bedrock respectfully requests that the Court adopt Magistrate Judge Love’s Order (Dkt. No. 691) (“Order”) permitting Bedrock to supplement Mr. Weinstein’s expert report, overrule Defendants’ objections, and deny Defendants’ motion for reconsideration. I. INTRODUCTION After excluding the portions of Mr. Weinstein’s opening expert report which relied upon settlement licenses (Dkt. No. 656) and considering the parties’ briefings, Magistrate Judge Love correctly found that Bedrock’s Motion for Leave to Supplement Expert Report of Roy Weinstein should be granted. See Dkt. No. 691. Defendants’ motion, which seeks to overturn Judge Love’s Order, raises arguments which were previously carefully considered and then rejected by Judge Love. For these reasons, the Court should deny Defendants’ motion and adopt Judge Love’s Order. II. ARGUMENT A. Defendants Have Not Demonstrated that Judge Love’s Findings Are Clearly Erroneous or Contrary to Law. Federal Rule of Civil Procedure 72(a) and Appendix B, Local Rule 4(a) make clear that a district court may modify or set aside a magistrate’s order on a non-dispositive issue only where the order is “clearly erroneous or . . . contrary to law.” See also 28 U.S.C. § 636(b)(1)(A) (“A judge of the court may reconsider any pretrial matter under [section (A)] where it has been shown that the magistrate’s order is clearly erroneous or contrary to law.”). Because the standard of review for a motion for reconsideration is so highly deferential, a party seeking reconsideration must show more than that the prior decision is “just maybe or probably wrong; 1 Dallas 322301v1 [the prior decision] must . . . strike [the court] as wrong with the force of a five-week-old, unrefrigerated dead fish.” TFWS v. Franchot, 572 F.3d 186, 194 (4th Cir. 2009). As is demonstrated below, Defendants have merely rehashed arguments which were properly rejected by Judge Love. In doing so, they have effectively ignored their burden of demonstrating “clear error.” In any event, Judge Love issued a well-reasoned opinion which granted Defendants leave to depose Mr. Weinstein, provide their own supplemental report on damages, and object to Mr. Weinstein’s supplemental report at trial. ORDER at 2. Even if the Defendants had actually attempted to show clear error in their motion, they would have failed because no clear error exists. The Court should therefore deny Defendants’ motion for reconsideration. B. Mr. Weinstein’s Supplemental Report Does Not Set Forth “an Entirely New Methodology.” Defendants’ argument that Mr. Weinstein’s supplemental report is not a “proper” supplement is unavailing. Indeed, the performance tests and resulting cost savings underlying Mr. Weinstein’s supplemental report were extensively discussed in his opening report. See Dkt. No. 560, Ex. A, at ¶¶ 72, 176, 240, and 248. As such, Defendants cannot reasonably contend that Mr. Weinstein’s supplement, which merely expounds upon a theory contained within his opening report, sets forth an “entirely new methodology.” Rather, Bedrock properly “supplement[ed] its report to conform to the Court’s ruling as to the extrapolation of a per server royalty from the litigation licenses,” as permitted by Judge Love. See Dkt. No. 691 at 1. In addition, Judge Love’s Order attempted to minimize any prejudice to Defendants as a result of Mr. Weinstein’s supplemental report by giving Defendants leave to depose Mr. Weinstein on the subject matter contained in his supplemental report. ORDER at 2. Defendants did, in fact, depose Mr. Weinstein for an additional four hours and forty-two minutes. Weinstein 2 Dallas 322301v1 Dep. (Apr. 5, 2011) (attached as Ex. A) at 193:25-194:3. Further, as permitted by Judge Love, Defendants submitted a Supplemental Rebuttal Expert Report of Keith R. Ugone Ph. D. in response to Mr. Weinstein’s supplemental report.1 As such, Defendants cannot demonstrate that Judge Love’s ruling is clearly erroneous or contrary to law. III. CONCLUSION. For the aforementioned reasons, Bedrock respectfully requests that the Court deny Defendants’ Motion for Reconsideration. 1 These precautions also serve to rebut Defendants’ arguments regarding the untimeliness of Mr. Weinstein’s supplemental report. 3 Dallas 322301v1 DATED: April 25, 2011 Respectfully submitted, McKOOL SMITH, P.C. /s/ Douglas A. Cawley Sam F. Baxter Texas Bar No. 01938000 McKOOL SMITH, P.C. sbaxter@mckoolsmith.com 104 E. Houston Street, Suite 300 P.O. Box 0 Marshall, Texas 75670 Telephone: (903) 923-9000 Facsimile: (903) 923-9099 Douglas A. Cawley, Lead Attorney Texas Bar No. 04035500 dcawley@mckoolsmith.com Theodore Stevenson, III Texas Bar No. 19196650 tstevenson@mckoolsmith.com Scott W. Hejny Texas Bar No. 24038952 shejny@mckoolsmith.com Jason D. Cassady Texas Bar No. 24045625 jcassady@mckoolsmith.com J. Austin Curry Texas Bar No. 24059636 acurry@mckoolsmith.com Phillip M. Aurentz Texas Bar No. 24059404 paurentz@mckoolsmith.com Stacie Greskowiak Texas State Bar No. 24074311 sgreskowiak@mckoolsmith.com Ryan A. Hargrave Texas State Bar No. 24071516 rhargrave@mckoolsmith.com McKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: 214-978-4000 Facsimile: 214-978-4044 4 Dallas 322301v1 Robert M. Parker Texas Bar No. 15498000 Robert Christopher Bunt Texas Bar No. 00787165 PARKER, BUNT & AINSWORTH, P.C. 100 E. Ferguson, Suite 1114 Tyler, Texas 75702 Telephone: 903-531-3535 Facsimile: 903-533-9687 E-mail: rmparker@pbatyler.com E-mail: rcbunt@pbatyler.com ATTORNEYS FOR PLAINTIFF BEDROCK COMPUTER TECHNOLOGIES LLC 5 Dallas 322301v1 CERTIFICATE OF SERVICE I hereby certify that all counsel of record who are deemed to have consented to electronic service are being served with a copy of the forgoing document via the Court’s CM/ECF system pursuant to the Court’s Local Rules this 25th day of April, 2011. /s/ Ryan A. Hargrave Ryan A. Hargrave 6 Dallas 322301v1