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

Filing 296

REPLY to Response to Motion re 197 MOTION in Limine No. Nine: Motion to Preclude Argument that Google Hindered Function Media or its Expert from Testing or Analyzing the Accused Products filed by Google, Inc.. (Attachments: # 1 Revised [Proposed] Order)(DeFranco, Edward)

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

Doc. 296

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION FUNCTION MEDIA, L.L.C., v. GOOGLE, INC. AND YAHOO!, INC. Civil Case No. 2:07-CV-279 (CE) JURY TRIAL DEMANDED

GOOGLE'S REPLY TO ITS MOTION IN LIMINE NO. NINE: MOTION TO PRECLUDE ARGUMENT THAT GOOGLE HINDERED FUNCTION MEDIA OR ITS EXPERT FROM TESTING OR ANALYZING THE ACCUSED PRODUCTS

Dockets.Justia.com

Google agrees that it would be improper for either party to use the agreement regarding testing or analyzing the accused products against the other party. It would be difficult, however, to discern whether one party's criticism of the other expert's testing should fairly open the door to argument that the agreement was the cause of the deficiency. For example, there may have been tests that could have been performed under the agreement but were not or were not performed rigorously. Rather than potentially setting up disputes regarding which kinds of tests were or were not possible under the parties' agreement, Google proposes that criticism by either party of the other expert's failure to perform certain tests should be off limits. This would obviate the need for any argument that the parties' agreement to limit testing may or may not have been the cause. Accordingly, the Court should grant Google's Motion in Limine No. 9 and further preclude either party from offering criticism of the other party's testing of the accused products.

Dated: November 25, 2009

Respectfully submitted, QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By: /s/ Amy H. Candido Charles K. Verhoeven (admitted pro hac) Lead Attorney [e-mail] Amy H. Candido (admitted pro hac) [e-mail] Carl G. Anderson (admitted pro hac) [e-mail] QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Edward J. DeFranco (admitted pro hac) 1

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[e-mail] James M. Glass (admitted pro hac) [e-mail] Patrick Curran (admitted pro hac) [e-mail] QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Telephone: [phone] Facsimile: [phone] Harry L. Gillam, Jr., Bar No. 07921800 [e-mail] Melissa R. Smith, Bar No. 24001351 [e-mail] GILLAM & SMITH, L.L.P. 303 South Washington Avenue Marshall, TX 75670 Telephone: [phone] Facsimile: [phone] Counsel for Defendant and Counter-Claimant GOOGLE INC.

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CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on November 25, 2009 to counsel of record via ECF/PACER.

/s/ Amy H. Candido Amy H. Candido

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