Motorola Mobility, Inc. v. Microsoft Corporation

Filing 169

STIPULATION and Joint Motion on Motions in Limine and Incorporated Proposed Order by Microsoft Corporation, Motorola Mobility, Inc. (Mullins, Edward)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:10-24063-CIV-MORENO
MOTOROLA MOBILITY, INC.,
Plaintiff / Counterclaim Defendant,
v.
MICROSOFT CORPORATION,
Defendant / Counterclaim Plaintiff.
/
JOINT MOTION AND STIPULATION ON MOTIONS IN LIMINE
AND INCOPORATED PROPOSED ORDER
Motorola Mobility, Inc. (“Motorola Mobility”) and Microsoft Corporation (“Microsoft”)
(collectively, the “Parties”) jointly move the Court and request that the following stipulations be
adopted in response to the parties’ Motions in Limine (D.E. 128, 129):
MIL #
Microsoft
MIL A

Agreed to language
Any reference to discovery disputes between the parties is irrelevant to the trial of this
case. To the extent the parties believed that any discovery response, document
production, or disclosure is or was incomplete, that issue should have been brought to
the attention of the Court prior to trial or resolved between the parties without Court
intervention. Thus, the Court excludes any reference to the sufficiency of discovery
responses, documents, and/or disclosures by either party. FED. R. EVID. 403.
This Motion is hereby ____ GRANTED AND SO ORDERED / ____ DENIED.

Microsoft
MIL B

Any reference to the timing of production of, or when the parties produced, documents
would be irrelevant and confuse the jury. Thus, the Court excludes any reference to the
timing of document production by either party. FED. R. EVID. 402, 403.
This Motion is hereby ____ GRANTED AND SO ORDERED / ____ DENIED.

Microsoft
MIL C
Motorola
MIL #1

Any expert testimony not timely and adequately disclosed is excluded. Nothing in this
stipulation constitutes a waiver of any party’s right to challenge opinion testimony on
the basis that it was not timely or adequately disclosed, nor shall it prevent a party from
arguing that its opinion testimony was timely and adequately disclosed.
This Motion is hereby ____ GRANTED AND SO ORDERED / ____ DENIED.

Case No. 1:10-24063-CIV-MORENO
MIL #

Agreed to language

Microsoft
MIL H

Any reference to any communication between Microsoft, its counsel, or representatives
with Motorola, its counsel or representatives concerning possible settlement of this case
or any other case, including the contents of any such communications and responses
thereto, would be highly prejudicial and not probative of any issue in this case. FED. R.
EVID. 408. Any reference to these meetings by either party, including reference to any
business discussions during these meetings, is excluded. FED. R. EVID. 403,408.
This Motion is hereby ____ GRANTED AND SO ORDERED / ____ DENIED.

Microsoft
MIL I

Any reference by either party to the mediation in this case or any statements made or
materials revealed in connection with mediation in this case would be highly prejudicial
and not probative of any issue in this case. Any such reference to the mediation is
excluded. FED. R. EVID. 402, 403,408. S.D. Fla. L.R. 16.2(f)(g)(2).
This Motion is hereby ____ GRANTED AND SO ORDERED / ____ DENIED.

Microsoft
MIL M

Unless permitted by a prior order of court, any litigation, judgment, rulings, consent
decrees, charges, or verdicts in other cases involving Microsoft and any non-party or
Motorola and any non-party, including but not limited to antitrust litigation and
litigation involving patents not at issue in this case, are deemed to be irrelevant and are
excluded. FED. R. EVID. 402. Those cases involve different parties, issues, patents,
technologies, products, claim constructions, infringement allegations, invalidity
allegations (including different prior art references), and damages theories. Any such
evidence therefore would be entirely irrelevant to the current action. FED. R. EVlD.
402. Such evidence also is excluded because it would be highly prejudicial and unfair,
and would pose a serious danger of confusing the issues, misleading the jury, and
wasting time. FED. R. EVlD. 403.
This Motion is hereby ____ GRANTED AND SO ORDERED / ____ DENIED.

Microsoft
MIL N

Any reference to either party’s claim of attorney-client privilege, work product
immunity, or any other applicable privilege or immunity in response to any request for
information is improper and is precluded. A claim of privilege is a proper act and will
not be commented on by counsel or witnesses. No inference will be made from a claim
of privilege. Such evidence is irrelevant, would be unfairly prejudicial, and would
mislead the jury into resolving this case based on factors other than the evidence and
the law. FED. R. EVlD. 402, 403.
This Motion is hereby ____ GRANTED AND SO ORDERED / ____ DENIED.

Microsoft
MIL O

Any questioning, by either party, clearly calculated to invoke an assertion of attorneyclient privilege, work product immunity or any other applicable privilege or immunity
would undermine the policies supporting privileges and would confuse the jury and
distract from the real issues in this litigation and thus is not permitted. FED. R. EVlD.
402, 403. Invocation of attorney-client privilege in response to questions not clearly
calculated to elicit such a response shall not be considered a violation of this agreement.
-2-

Case No. 1:10-24063-CIV-MORENO
MIL #

Agreed to language
This Motion is hereby ____ GRANTED AND SO ORDERED / ____ DENIED.

Microsoft
MIL P

In the absence of a prior order of court, any reference by either party to any pretrial or
discovery ruling made by this Court, excluding those reflecting the Court’s claim
construction, or the lack of ruling by this Court on any pretrial or discovery issue; or
reference to any argument or claims rejected, dismissed, severed or stayed are irrelevant
and is excluded. FED. R. EVlD. 1 03( c), 104(a), 403, 605.
This Motion is hereby ____ GRANTED AND SO ORDERED / ____ DENIED.

Microsoft
MIL R

A party or expert shall not argue or testify that a claim construction ruling by the Court
in this case should be altered or testify regarding the effect such proposed alterations
would have on any issue in this case and any (including expert) opinion about such
proposed alterations should be excluded. The Court will have construed the claims of
the patents, and any attempt to change or opine about proposed changes to the claim
construction ruling or their effect would be irrelevant and would confuse the jury and
thus is excluded. FED. R. EVID. 402, 403, 702, 703.
This Motion is hereby ____ GRANTED AND SO ORDERED / ____ DENIED.

Microsoft
MIL S

Withdrawn by agreement pursuant to the parties’ proposed stipulation under Microsoft
MIL R.

Microsoft
MIL W

The parties are precluded from introducing any testimony or evidence regarding claim
construction for the contested terms. The Court will have construed the contested claim
terms of the patents, and any attempt to introduce any evidence relating to claim
construction with respect to these terms would be irrelevant and would confuse the
jury. FED. R. EVID. 402, 403, 702, 703.

Motorola
MIL #2

This Motion is hereby ____ GRANTED AND SO ORDERED / ____ DENIED.
Microsoft
MIL X

Any reference by either party to the fact that the parties have filed a Motion in Limine
requesting relief from this Court or that this Court has granted or denied such relief is
irrelevant and would confuse the jury. FED. R. EVID. 402, 403. Any reference by
either party to Motions in Limine or any relief that might have been granted or denied is
excluded. FED. R. EVID. 1 03(c), 403.
This Motion is hereby ____ GRANTED AND SO ORDERED / ____ DENIED.

DONE AND ORDERED in Chambers, at Miami-Dade County, Florida, this ____ day of
___________________, 2011.
_________________________________________
THE HONORABLE FEDERICO A. MORENO
CHIEF UNITED STATES DISTRICT JUDGE
-3-

Case No. 1:10-24063-CIV-MORENO
Respectfully submitted,

Dated: August 8, 2011

Dated: August 8, 2011

By: /s/ Edward M. Mullins

By: /s/Curtis B. Miner

Edward M. Mullins (Fla. Bar No. 863920)
[e-mail]
Hal M. Lucas (Fla. Bar No. 853011)
[e-mail]
Astigarraga Davis Mullins & Grossman, P.A.
701 Brickell Avenue, 16th Floor
Miami, FL 33131
Telephone: [phone]
Attorneys for Plaintiff /
Counterclaim Defendant
MOTOROLA MOBILITY, INC.

Roberto Martinez
Curtis B. Miner (Fla. Bar No. 885681)
[e-mail]
COLSON HICKS EIDSON
255 Alhambra Circle, Penthouse
Coral Gables, FL 33134
Telephone: [phone]
Attorneys for Defendant /
Counterclaim Plaintiff
MICROSOFT CORPORATION

Jesse J. Jenner*
Steven Pepe*
Khue V. Hoang*
Leslie M. Spencer*
Ropes & Gray LLP
1211 Avenue of the Americas
New York, NY 10020
Telephone: [phone]
Norman H. Beamer*
Mark D. Rowland*
Gabrielle E. Higgins*
Ropes & Gray LLP
1900 University Avenue, 6th Floor
East Palo Alto, CA 94303
Telephone: [phone]

David T. Pritikin*
Richard A. Cederoth*
Douglas I. Lewis*
John W. McBride*
SIDLEY AUSTIN LLP
One South Dearborn
Chicago, IL 60603
Telephone: [phone]
Brian R. Nester*
SIDLEY AUSTIN LLP
1501 K Street NW
Washington, DC 20005
Telephone: [phone]
*Admitted pro hac vice

Kevin J. Post*
Megan F. Raymond*
Ropes & Gray LLP
One Metro Center
700 12th Street NW, Suite 900
Washington, DC 20005
Telephone: [phone]
*Admitted pro hac vice

-4-

Case No. 1:10-24063-CIV-MORENO
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 8, 2011, I electronically filed the foregoing document
with the Clerk of the Court using the CM/ECF filing system. I also certify that the foregoing
document is being served this date on all counsel of record or pro se parties on the Service List
below in the manner specified, either via transmission of Notices of Electronic Filing generated by
the CM/ECF system or; in some other authorized manner for those counsel or parties who are not
authorized to receive electronically Notices of Electronic Filing.
/s/ Edward M. Mullins___________________
Edward M. Mullins (Fla. Bar No. 863920)
SERVICE LIST
Motorola Mobility, Inc. v. Microsoft Corporation
Case No.: 1:10-CV-24063-MORENO/TORRES
United States District Court, Southern District of Florida
Curtis B. Miner
[e-mail]
Colson Hicks Eidson
255 Alhambra Circle
Penthouse
Coral Gables, Florida 33134
Jim S. Zeng*
[e-mail]
Theodore W. Chandler*
[e-mail]
Sandra S. Fujiyama*
[e-mail]
Michael C. Lee
[e-mail]
Paul D. Tripodi, II*
[e-mail]
Erik J. Carlson*
[e-mail]
Olivia M. Kim*
[e-mail]
Christopher G. Wilson*
[e-mail]
Yongdan Li*
[e-mail]
Sidley Austin LLP
555 West Fifth Street
Los Angeles, California 90013

John W. McBride*
[e-mail]
David T. Pritikin*
[e-mail]
Douglas I. Lewis*
[e-mail]
Richard A. Cederoth*
[e-mail]
Erin E. Kelly*
[e-mail]
Shubham Mukherjee*
[e-mail]
Sherry A. Knutson*
[e-mail]
Stephen C. Carlson*
[e-mail]
Elizabeth Curtin*
[e-mail]
Neil H. Wyland*
[e-mail]
William M. Chang*
[e-mail]
Michael L. Lisak*
[e-mail]
Gerald L. Angst*
[e-mail]
Frank J. Favia, Jr.*
[e-mail]
-5-

Case No. 1:10-24063-CIV-MORENO
Aseem S. Gupta*
[e-mail]
Philip W. Woo*
[e-mail]
Sidley Austin LLP
555 California Street, Suite 2000
San Francisco, California 94104
David J. Wolfsohn*
[e-mail]
Woodcock Washburn LLP
Cira Centre
2929 Arch Street
Philadelphia, Pennsylvania 19104

Tung T. Nguyen*
[e-mail]
Nabeel U. Khan*
[e-mail]
Dale B. N ixon*
[e-mail]
Nicole D. Sims
[e-mail]
Benjamin B. Kelly*
[e-mail]
Daniel J. Galligan*
[e-mail]
Kelley Conaty*
[e-mail]
Sidley Austin LLP
717 North Harwood, Suite 3400
Dallas, Texas 75201

Anthony Balkissoon*
[e-mail]
Tamar B. Kelber*
[e-mail]
Kathleen L. Holthaus*
[e-mail]
Herman F. Webley*
[e-mail]
Ellen S. Robbins*
[e-mail]
Sidley Austin LLP
One S. Dearborn
Chicago, Illinois 60603

Brian R. Nester*
[e-mail]
Sidley Austin LLP
1501 K Street, N.W.
Washington, DC 20005

*Admitted pro hac vice
Attorneys for Defendant
Electronically served via CM/ECF

-6-