Lulu Enterprises, Inc. v. N-F Newsite, LLC et al

Filing 107

MOTION in Limine by N-F Newsite, LLC. (Attachments: #1 Text of Proposed Order) (Silver, Hayden)

Lulu Enterprises, Inc. v. N-F Newsite, LLC et al

Doc. 107

Case 5:07-cv-00347-D

Document 107

Filed 10/12/2007

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION NO. 5:07-cv-00347-D

LULU ENTERPRISES, INC., Plaintiff, vs. HULU, LLC, et al., Defendants. DEFENDANT HULU, LLC'S MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S SURVEY AND FOCUS GROUP DECLARATIONS AND REPORTS

Defendant, Hulu, LLC ("Hulu") hereby moves the Court, pursuant to Rules 6(d) and 16(f) of the Federal Rules of Civil Procedure, and the Scheduling Order of the Court, for an order prohibiting Plaintiff Lulu Enterprises, Inc. from offering purported expert evidence related to surveys and focus groups in support of its Motion for Preliminary Injunction. In particular, on October 12, 2007, Plaintiff filed and served survey evidence in the form of the Declaration of Hal L. Poret, and has orally given notice that it intends to submit an additional but different expert report in the near future. This last minute evidence should be excluded. Plaintiff failed to submit these declarations with its Motion for Preliminary Injunction, as required by Rule 6(d). Plaintiff failed to timely produce any survey or focus group report in support of its Motion for Preliminary Injunction during the expedited discovery period, or even before the close of briefing. As set forth in its memorandum of law, filed contemporaneously herewith, Plaintiff's belated presentation of this evidence significantly prejudices Hulu.

US2000 10368193.3

Dockets.Justia.com

Case 5:07-cv-00347-D

Document 107

Filed 10/12/2007

Page 2 of 3

Wherefore, Defendant Hulu, LLC respectfully moves the Court for an order in limine excluding Plaintiff from presenting and relying on the Declaration of Hal L. Poret and any other such purported expert evidence in support of its Motion for Preliminary Injunction. This the 12th day of October, 2007.

/s/ Hayden J. Silver, III Hayden J. Silver, III NC State Bar No. 10037 [e-mail] Betsy Cooke NC State Bar No. 25353 [e-mail] KILPATRICK STOCKTON LLP 3737 Glenwood Avenue, Suite 400 Raleigh, NC 27612 [phone] [phone] (facsimile) William H. Brewster GA State Bar No. 080422 [e-mail] Sara Maurer GA State Bar No. 159056 [e-mail] KILPATRICK STOCKTON LLP 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 [phone] [phone] facsimile Attorneys for Defendant Hulu, LLC

US2000 10368193.3

Case 5:07-cv-00347-D

Document 107

Filed 10/12/2007

Page 3 of 3

CERTIFICATE OF SERVICE This is to certify that on this date the foregoing was electronically filed with the Clerk of the Court using the CM/ECF System which will send notice to the following CM/ECF participants: Leslie C. O'Toole [e-mail] Thomas Hamilton Segars [e-mail] This the 12th day of October, 2007.

/s/ Hayden J. Silver, III

KILPATRICK STOCKTON LLP 3737 Glenwood Avenue, Suite 400 Raleigh, North Carolina 27612 Telephone: [phone]

US2000 10368193.3