Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al

Filing 231

REPLY to Response re 225 MOTION for Reconsideration re 222 Order on Motion for Summary Judgment, Order on Motion for Order,, filed by Weather Underground, Incorporated. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Schaefer, Enrico)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
THE WEATHER UNDERGROUND, INC.,
a Michigan corporation,
Plaintiff,
vs.
NAVIGATION CATALYST SYSTEMS,
INC., a Delaware corporation;
CONNEXUS CORP., a Delaware
corporation; FIRSTLOOK, INC., a
Delaware corporation; and EPIC
MEDIA GROUP, INC., a Delaware
corporation;

Case No. 2:09-CV-10756
Hon. Marianne O. Battani

Defendants.
______________________________________________________________________
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff
Anthony P. Patti (P43729)
HOOPER HATHAWAY, PC
126 South Main Street
Ann Arbor, MI 48104
734-662-4426
[e-mail]
Attorneys for Plaintiff

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
Bruce L. Sendek (P28095)
BUTZEL LONG, PC
150 West Jefferson, Suite 100
Detroit, MI 48226
[phone]
[e-mail]
[e-mail]
[e-mail]
Local Counsel for Defendants
William A. Delgado (admitted pro hac vice)
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

______________________________________________________________________

PLAINTIFF’S REPLY TO ITS MOTION AND MEMORANDUM FOR
RECONSIDERATION OR, IN THE ALTERNATIVE, CLARIFICATION OF ORDER
REGARDING DEFENDANT’S MOTION TO STRIKE REPORT OF CHRISTOPHER
SCHWERZLER AND PROHIBIT HIS TESTIMONY ON SAME AT TRIAL
NOW COMES Plaintiff, The Weather Underground, Inc. (“Plaintiff”), by and
through its counsel, Traverse Legal, PLC, and replies to its Motion for Reconsideration
or, in the Alternative, Clarification of the Court’s September 21, 2011, Order Regarding
Defendant’s Motion to Strike Report of Christopher Schwerzler and Prohibit His
Testimony of Same at Trial as follows:

The primary piece of evidence in this case is a terabyte drive1 produced by
Defendants after a motion to compel, several hearings, multiple denials by
Defendant that the information on the terabyte drive existed and a May 25, 2010
Order entered by the Magistrate Judge. Paragraph 21 of the May 25, 2010
Order (attached as Exhibit A to this Reply) states:
21. With regard to RFP #36, NCS shall produce a list of all domain
names registered by NCS for January 1, 2004, July 1, 2004 and
each year thereafter on those same dates through 2009. NCS does
not need to produce any domains registered and then dropped
during the 5 day Add Grace Period (AGP). To the extent NCS
alleges that prior registrations are not available or cannot reasonably
be produced, NCS is ordered to provide an affidavit stating in detail
the specific reasons as to why it cannot produce any such list of
domain names. NCS will further provide a Rule 30(b)(6) deponent
concerning its assertion that information cannot be reasonably
produced.
1

The terabyte drive contains evidence that the jury cannot see or access.
Special software needs to be licensed and installed on a computer in order to
access the database, or otherwise is only accessible at Defendants’ place of
business in California.
1

The terabyte drive was first produced at the deposition of their 30(b)(6) witness
regarding production, Donnie Misino, on August 20, 2010. (Exhibit B, Misino Dep.
at pgs. 13-14, 130-133).
Plaintiff’s Motion identifies a number of objective and verifiable attributes of
the database, file names, and data in the files as pulled by Chris Schwerzler
through simple queries, or Defendants’ own trademark matching query, run on
the database. (Motion ¶11, Dkt. #225). Defendant did not challenge Mr.
Schwerzler’s expertise to run such queries and pull such data and in fact
conceded it in their Motion to Strike.
“Schwerzler is simply not qualified to offer all of the opinions he wants to
offer.” (Defendant’s Reply Brief at Page 3 (Dkt #221).)
“There’s nothing in Plaintiff’s opposition which even attempts to argue that
Schwerzler is even qualified to opine anything other than his ability to
extract files from a database and run a query on those files.” (Defendant’s
Reply Brief at Page 4 (Dkt #221).)
“Perhaps it would be one thing if Mr. Schwerzler had been retained to
simply discuss how he extracted information from a database.”
(Defendant’s Reply Brief at Page 5 (Dkt #221).)
Most telling, Defendants have not pointed in deposition, motion, brief, witness,
hearing or otherwise a single inaccuracy related to any of the objective
information included in Mr. Schwerzler’s report and testimony. Instead,
Defendant’s Motion focused specifically on Schwerzler’s subjective conclusions
on issues of intent and trademarks on certain third party domains.

2

Mr. Schwerzler should be allowed to offer objective testimony (a) about all
objective data in the database (either the data is there or it is not); (b) the
numerical values Defendants’ trademark matching software also included on the
drive scores typo-domains registered by Defendants; and (c) Mr. Schwerzler’s
own trademark matching algorithm which took 10 minutes to code and the results
of that simple query. Such objective, and subject to confirmation, testimony is in
stark contrast to the holding cited by NCS, In re Commercial Money Center, Inc.,
where the court struck the expert witness testimony because it related to
subjective determinations regarding claims handling procedures and servicing..
737 F. Supp. 2d 815, 845 (N.D. Ohio 2010).
There could be no prejudice or harm by allowing Mr. Schwerzler to identify
the data on the terabyte drive, show the results of Defendant’s trademark query
or show the jury how a trademark query works by explaining lines of code. If the
data is not there, Defendant can easily show that. Bias is a non-issue with
regard to contents of the terabyte drive.
If all party witnesses offering expert testimony were to be stricken, the
court rules and case law would so provide. If the chasm between the objective
information relied upon (the contents of the terabyte drive) and the opinion itself
is wide (intent, bad faith), then reliability could support precluding opinions.

3

Defendants make the argument that Plaintiff has offered a “new” expert
report. Again, this is simply untrue. Defendant filed a motion to strike attaching
an unsigned draft version of Mr. Schwerzler’s expert report. As Defendants are
aware, Plaintiff’s produced in discovery both draft and final versions of the report.
The signed final version was the subject cross-examination of Mr. Schwerzler at
his deposition and marked by Defense counsel as Schwerzler depo Exhibit 214.
Despite repeatedly making Defendant aware of its error, defense counsel
continues to suggest that Mr. Schwerzler’s signed report is somehow ‘new.’
CONCLUSION
Striking Mr. Schwerzler’s entire report and his objective testimony about
the contents of the terabyte drive produced in this case is unsupported.
Defendant’s have failed to identify in all their pleadings and arguments to date
even in single error made by Mr. Schwerzler in his final report identifying the
contents of the terabyte drive. Alternatively, precluding Mr. Schwerzler from
offering such testimony would create extreme prejudice to Plaintiff whose
alternatives for having that evidence available to the jury are limited to methods
that are inefficient and waste judicial resources.
/
/
/
/
4

Respectfully submitted this 3rd day of November, 2011.
/s/Enrico Schaefer___________________
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
Lead Counsel for Plaintiff
Anthony P. Patti (P43729)
HOOPER HATHAWAY, PC
126 South Main Street
Ann Arbor, MI 48104
734-662-4426
[e-mail]
Attorneys for Plaintiff

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CERTIFICATE OF SERVICE
I hereby certify that on the 3 rd day of November, 2011, I electronically filed
the foregoing paper with the Court using the ECF system which will send
notification of such filing to the following:
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

William A. Delgado (admitted pro hac)
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants
Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
Bruce L. Sendek (P28095)
BUTZEL LONG, PC
150 West Jefferson, Suite 100
Detroit, MI 48226
[phone]
[e-mail]
[e-mail]
[e-mail]
Local Counsel for Defendants

Anthony P. Patti (P43729)
HOOPER HATHAWAY, PC
126 South Main Street
Ann Arbor, MI 48104
734-662-4426
[e-mail]
Attorneys for Plaintiff

/s/Enrico Schaefer___________________
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
Lead Counsel for Plaintiff

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