Specht et al v. Google Inc et al

Filing 170

MOTION by Plaintiffs Android Data Corporation, Erich Specht, The Android's Dungeon Incorporated to strike reply 167 or for Leave to File Sur-Reply (Attachments: # 1 Exhibit A)(Haarlow, John)

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Specht et al v. Google Inc et al Doc. 170 Case 1:09-cv-02572 Document 170 Filed 02/19/10 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ERICH SPECHT, an individual and doing business as ANDROID DATA CORPORATION, and THE ANDROID'S DUNGEON INCORPORATED, Plaintiffs/Counter-Defendants, v. GOOGLE INC., Defendant/Counter-Plaintiff. ) ) ) ) ) ) ) ) ) ) Civil Action No. 09-cv-2572 Judge Harry D. Leinenweber Magistrate Judge Jeffrey Cole PLAINTIFFS' MOTION TO STRIKE, OR IN THE ALTERNATIVE, TO FILE SUR-REPLY INSTANTER Plaintiffs Erich Specht, an individual and doing business as Android Data Corporation, and The Android's Dungeon Incorporated (collectively, "Plaintiffs"), by and through their attorneys, hereby move to strike the Affidavit of Edward G. Tharp and portions of the Reply filed by Motorola, Inc. ("Motorola") in support of its Motion to Quash Non-Party Subpoena (the "Motion") or, in the alternative, for leave to file the attached Sur-Reply, instanter. In support hereof, Plaintiffs state as follows. 1. It is axiomatic that "`[a] reply brief is for replying' not for raising essentially new matter that could have been advanced in the opening brief." Autotech Techs. Ltd. P'ship v. Automationdirect.com, Inc., 235 F.R.D. 435, 437 (N.D. Ill. 2006) (citation omitted). Nonetheless, Motorola has offered the Affidavit of Edward G. Tharp (the "Tharp Affidavit") and advanced two new arguments in its Reply attempting to justify its Motion to Quash. 2. Specifically, Motorola argues that: · Certain financial information purportedly sought by Plaintiffs constitutes trade secrets (see Reply Section IV; Tharp Affidavit); and 1 Dockets.Justia.com Case 1:09-cv-02572 Document 170 Filed 02/19/10 Page 2 of 4 · Plaintiffs' request for the Droid Licensing Documents is "moot" (see Reply at 8 n.5). 3. There is no reason why the Tharp Affidavit and the two new arguments could not have been advanced in Motorola's opening brief. Accordingly, it is improper for Motorola to now offer the Tharp Affidavit and the two new arguments in the Reply and they should be stricken. Alternatively, in the event that the Court decides not to strike the Tharp Affidavit and the two new arguments, Plaintiffs request leave to file the attached Sur-Reply addressing them. WHEREFORE, Plaintiffs respectfully request that the Court enter an Order: A. B. C. Striking Section IV, the Tharp Affidavit and footnote 5 from Motorola's Reply in support of the Motion; or Granting Plaintiffs leave to file the Sur-Reply attached hereto as Exhibit A; and Granting Plaintiffs such other and further relief as is appropriate under the circumstances. Respectfully submitted, ERICH SPECHT, an individual and doing business as ANDROID DATA CORPORATION, and THE ANDROID'S DUNGEON INCORPORATED By: P. Andrew Fleming John F. Shonkwiler John B. Haarlow, Jr. NOVACK AND MACEY LLP 100 North Riverside Plaza Chicago, IL 60606 (312) 419-6900 Doc. #339773 /s/ John Haarlow, Jr. One of Their Attorneys 2 Case 1:09-cv-02572 Document 170 Filed 02/19/10 Page 3 of 4 Martin Murphy 2811 RFD Long Grove, IL 60047 (312) 933-3200 3 Case 1:09-cv-02572 Document 170 Filed 02/19/10 Page 4 of 4 CERTIFICATE OF SERVICE John Haarlow, Jr., an attorney, certifies that he caused copies of the foregoing to be served by electronically filing the document with the Clerk of Court using the ECF system this 19th day of February, 2010. /s/ John Haarlow, Jr.

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