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

Filing 245

RESPONSE to Motion re 206 MOTION in Limine No. One: Motion to Preclude Evidence and Argument Relating to The Parties' Conduct During Discovery 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. 245

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

Civil Action No. 2007-CV-279

GOOGLE INC. AND YAHOO!,INC.
Defendants.

JURY TRIAL DEMANDED

PLAINTIF'F'S RESPONSE TO GOOGLE'S MOTION IN LIMINE NO. ONE: MOTION TO PRECLUDE EVIDENCE AND ARGUMENT IIELATING TO THE PARTIES' CONDUCT DURING DISCOVERY Even though this Court was made aware

of only a handful of

discovery disputes,

Google's discovery failures in this case were many. It is not surprising, then, that Google's first

motion

in limine

asks the Court

to preclude Function Media from presenting evidence or

argument at trial regarding Google' s misbehavior during discovery.

Function Media agrees that the parties should not waste valuable time at trial rehashing

Google's numerous discovery failures, but Google's motion casts too wide a net. The Court
ought to deny the motion in part.

In seeking to preclude evidence and argument "relating to [the] parties' conduct during
discovery," Google Br. at 4, Google appears to be seeking both (1) an end-run around Function

Media's motion in limine to preclude Google from using documents, testimony, witnesses, and
other evidence that Google did not timely disclose or produce during discovery; and (2) a Court

order preventing Function Media from doing what plaintiffs in every case are entitled to do:
argue that the defendant has not come forward with a document or other evidence to prove some

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Dockets.Justia.com

point that

it wants to prove. To the extent that Google's motion seeks to reach

either such

situation, it is improperly overbroad.

First, as Function Media explained in its omnibus Motions in Limine (Dkt No. 188)'
Google should not be permitted to introduce any evidence, testimony, or argument concerning any document that was not timely produced or disclosed during discovery-including [a] any

prior art references that Google did not timely disclose or chart in accordance with the Court's
discovery orders and Local Rules, [b] the untimely-produced documents from Cherie Yu's files,
and [c] any other documents that Function Media requested yet Google did not produce' See FM

Mot. in Limine Nos. 17

and

47. Similarly,

Google should be precluded both from calling any

witness who was not timely or appropriately disclosed in its Initial Disclosures (e.g., failing to

identify Todd Curtiss as a person with knowledge, yet disclosing him on Google's list of trial
witnesses) and from introducing any testimony that was not timely provided during discovery

(e.g., testimony regarding 30(bX6) topics

28 and 29). See FM Mot. in Limine No'

47.

preclusion along these lines does nothing to prejudice the jury unfairly against Google and serves only to rectify the unfair prejudice that Function Media suffered from Google's dilatory tactics.
Second, to the extent that Google seeks by its motion to prevent Function Media from

using the "'Where is the document that shows X?" argument, the Court plainly should deny it. Such an argument is not a "Google misbehaved during discovery" argument but, rather, an
"absence of evidence" argument. Google has had ample time and opportunity to produce any

and all evidence

in

support

of its claims and defenses, and Function Media should not be

precluded from making this Point.

980750v l/08426-010020

Respectfully submitted,
/s/ Joseph S. Grinstein

Max L. Tribble, Jr. State Bar No. 20213950 Email : [e-mail] SUSMAN GODFREY LLP 1000 Louisiana, Suite 5100 Houston, Texas, 77002 Telephone: [phone] Facsimile: (7 13) 654-6666
Lead Attorney

for Plaintiff

OF COTJNSEL: Joseph S. Grinstein State Bar No. 24002188 SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77 002-5096 Telephone: [phone] Fax: [phone] j grinstein@susmango dfreY. com 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@susmangodfr ey. com Justin A. Nelson State BarNo.24034766 SUSMAN GODFREY L.L.P. Suite 3800 1201 Third Avenue Seattle, V/ashington 98 I 0 1 -3000 Telephone: [phone] Fax: [phone] j nelson@susmangodfrey. com Robert Christopher Bunt

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0020

State Bar No. 00787165 Charles Ainsworth

PARKER, BUNT & AINSWORTH, P.C. 100 East Ferguson, Suite 1114 Tyler, TX 75702 Telephone: [phone] Fax: [phone] rcbunt@.pbatyler.com [e-mail]
S. Calvin Capshaw State Bar No. 037839000 Elizabeth L. DeRieux State Bar No. 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] ccapshaw@capshawlaw. com ederieux@cap shawlaw. com jr arrbin@cap shawl aw. c om Otis Canoll State Bar No. 03895700 Collin Maloney State Bar No. 00794219 IRELAND, CARROLL & KELLEY, P.C. 6101 S. Broadway, Suite 500 Tyler, Texas 75703 Telephone: [phone] Fax: [phone] otiscarroll@icklaw. com [e-mail]

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CERTIFICATE OF SERVICE

3,2009,I electronicatly filed the foregoing document with the clerk of the court for the U.S. District Court, Eastern District of Texas, using the electronic filing system of the court. The electronic case filing system sent a "Notice of

I

hereby certiff that on November

Electronic Filing" to the attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means:
/s/ Joseph S. Grinstein
Joseph S. Grinstein

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