Function Media, L.L.C. v. Google, Inc. et al

Filing 244

RESPONSE to Motion re 193 SEALED MOTION in LImine No. 6: Motion to Preclude Evidence and Argument Regarding Credit for Invention of the Accused Products filed by Function Media, L.L.C.. (Attachments: # 1 Text of Proposed Order)(Grinstein, Joseph)

Function Media, L.L.C. v. Google, Inc. et al

Doc. 244

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION FUNCTION MEDIA, L.L.C.
$ $

Plaintiff,
vs.

s s
$ $ $ $ $

Civit Action No. 2007-CY-279

GOOGLE, INC. AND YAHOO, INC.
Defendants.

JURY TRIAL DEMANDED

PLAINTIFF'S RESPONSE TO GOOGLE'S MOTION IN LIMINE NO. SIX: MOTION TO PRECLUDE EVIDENCE AND ARGUMENT RE,GARDING CREDIT FOR INVENTION OF THE ACCUSED PRODUCTS
Google's Motion

in Limine No. Six is

aimed at preventing Function Media from

introducing evidence suggesting that either Susan 'ù/ojcicki or Sergey Brin have claimed credit

for developing the Accused Products. According to Google, FM lacks evidence that

Ms.

V/ojcicki or Mr. Brin in fact did develop the Accused Products, and, in any event, the issue is
supposedly confusing to the jury and prejudicial to Google.

Google, however, never precisely explains how

it could "prejudice"

Google for FM to

establish that Ms. Wojcicki andlor Mr. Brin developed the Accused Products. Indeed,

it

is

diff,rcult

to fathom how evidence regarding the development of the products

accused of

infringement would not be relevant to a whole host of issues, ranging from infringement (what

was Google's intent for how the Accused Products would operate?) to validity (did Google
consider the Accused Products to be new, novel, and non-obvious?) to damages (how did Google

prospectively value the Accused Products?).
The true reason Google does not want FM introducing evidence as to who developed the Accused Products is because Google has doggedly refused to produce Ms. Wojcicki or Mr. Brin

980745v I /08 426-0 t0020

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for deposition. So Google wants to exclude evidence relating to their role in developing the
Accused products, lest Google's own trial tactic of withholding its executives from discovery
prejudice it in front of the jury. Were FM able to discuss who at Google developed the Accused

products, worries Google, then the jury might wonder why Google has not produced them

as

witnesses. But this gamesmanship is no basis for excluding relevant evidence regarding product
development.

In the end, this Court substantially undercut the basis for this motion in limine in its
discovery rulings on October 9,2009, when

it

ordered Google to produce relevant documents

from the files of muttiple Google executives, including Ms. Wojcicki and Mr.
also held open, pending the document production, the issue of FM's deposing

Brin.

The Court

Mr' Wojcicki and

Mr. Brin. Any discussion of what evidence should or should not be admitted regarding Google's
by executives, therefore, logically ought to wait until the completion of the discovery ordered this Court.
For these reason, FM requests that this Court deny Google's Motion in Limine No. Six.

Respectfully submitted,
/s/ Joseph S. Grinstein Max L. Tribble, Jr. State Bar No. 20213950 Email : mtribble@susmangodfrey. com SUSMAN GODFREY LLP 1000 Louisiana, Suite 5100 Houston, Texas, 77002 Telephone: [phone] Facsimile: (7 13) 654-6666 Lead Attorney for Plaintiff OF COUNSEL: Joseph S. Grinstein State Bar No. 24002188

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Aimée Robert State Bar No.24046729 SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77 002-5096 Telephone: [phone] Fax: [phone] j erinstein@ susmangodfrey. com [e-mail]

Jeremy Brandon State Bar No. 24040563

SUSMAN GODFREY L.L.P. Suite 5100 901 Main Street Dallas, Texas 7 5202-377 5 Telephone: [phone] Fax: [phone] j brandon@susmangodfreY. com

Justin A. Nelson State Bar No.24034766 SUSMAN GODFREY L.L.P. Suite 3800 1201 Third Avenue Seattle, Washington 98 I 0l -3000 Telephone: [phone] Fax: [phone] i nelson@ susmangodfrey. com Robert Christopher Bunt State Bar No. 00787165 Charles Ainsworth PARKER, BI-]NT & AINSWORTH, P.C. 100 East Ferguson, Suite 1114 Tyler, TX 75702 Telephone: [phone] Fax: [phone] [e-mail] [e-mail]
S. Calvin Capshaw State Bar No. 037839000 Elizabeth L. DeRieux

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State BarNo. 05770585 D. Jeffrey Rambin

CAPSHAW DERIEUX, LLP Energy Centre 1127 Judson Road, Suite 220 P.O. Box 3999 (75606-3999) Longview, TX 7 5601-5157 Telephone: [phone] Fax: [phone] ccap shaw@ cap shawlaw. com ederieux@ cap shawlaw. com j rambin@ cap shawl aw. com Otis Canoll stare Bar No. 03895700 Collin Maloney State Bar No. 00794219 IRELAND, CARROLL 8.|<ELLEY, P'C. 6101 S. Broadway, Suite 500 Tyler, Texas 75703 Telephone: [phone] Fax: [phone] oti scarrol I @i cklaw. com [e-mail]

CERTIFICATE OF SERVICE I hereby certify that on November 3,2009,I electronically filed the foregoing document the with the clerk of the court for the U.S. District Court, Eastern District of Texas, using filing system sent a "Notice of electronic f,rling system of the court. The electronic case accept this Notice Electronic Filing,, to the attorneys of record who have consented in writing to
as service of this document by electronic means:

/s/ Joseph S. Grinstein Joseph S. Grinstein

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