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

Filing 322

RESPONSE in Opposition re 321 MOTION to Expedite Briefing and Consideration of Google's Daubert Motion to Exclude Certain Testimony and Opinions of Mr. Walter Bratic filed by Function Media, L.L.C.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Grinstein, Joseph)

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Function Media, L.L.C. v. Google, Inc. et al Doc. 322 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION FUNCTION MEDIA, L.L.C., Plaintiff, $ $ $ s s $ S Civil Action No. 2007-CV-279 GOOGLE,INC. AND YAHOO,INC., Defendants. $ S JURY TRIAL DEMANDED OPPOSITION TO MOTION TO EXPEDITE Function Media has no objection to an expedited and agreed schedule for briefing on Dauberl motions. Function Media's objection here is that Google's schedule as to Mr. Bratic is way too rushed and premature proposed - taking place literally at the same time as six other expert depositions, over Christmas, and with a proposed hearing date before expert discovery is completed. Google has proposed a hearing date on this issue on January 5, at the same time as the currently-scheduled hearing over exhibit and deposition objections. Such a schedule makes no sense given the timing and the expert discovery here. Google has given no reason for why it is necessary to create such an 5. This Court can and should extreme schedule just to have the hearing date on January hold a Daubert hearing after January 5 - when expert discovery is completed and to give some minimum time for briefing. Function Media represents that it will be extraordinarily difficult for it to file a response to the forthcomin g Daubert motion against Mr. Bratic in just one week because of the schedule for expert discovery and other pretrial matters.I During that same week, Moreover, holidays notwithstanding, there is no good reason why Google compresses the schedule on Function Media to force an opposition within one week, while proposing to give itself a further week t 997 082v 1 I 08 426 -0 t 0020 Dockets.Justia.com Function Media must also prepare and defend Mr. Bratic for deposition; prepare for and take the deposition of Google's damages expert, Mr. Wagner; and attend to a host of other pretrial matters (not to mention prepare for the holidays). Google thus proposes to significantly shorten Function Media's time to respond to Google's forthcoming motion, while also placing the response period at a uniquely inconvenient and burdensome time. Moreover, Function Media intends to file a Daubert motion of its own against Google's damages expert, Mr. Wagner. Function Media is not in the position to file that motion by December 16 - nor does it believe Wagner's deposition on December it should be forced to do so, prior to Mr. Google's motion does not seek to 22. To be sure, require Function Media to move against Mr. Wagner early. But because Google knows that Function Media will not file by December 16, Google seeks a tactical advantage in having its Dauberl motion heard before Function Media's. That makes no sense. This Court should take up each side's damages motions at the same time and on a schedule that accommodates appropriate filing and reply dates. Google complains that it would be unfair to hear its Daubert motion later, because it requires clarity on the Daubert issues for its pretrial preparation. But, to the extent there is even any "time crunch" on hearing Daubert issues, the fault lies entirely with Google itself. Google suggested pushing back the various dates for expert reports -- on four different occasions. See Exh. A (Google email of October 22 asking to push back opening reports); Exh. reports another time B (Google request of October 23 to push back opening expert - until November 3); Exh. C (Google email of October 29 asking for extension of rebuttal reports until November 24); Exhibit D (Google email of November simply to file a reply brief. If Google were concemed about the burden on ûre parties by its proposed expàdited sctreduÈ, it would forego a reply brief andlor accord Function Media ûre full amount of time allowed by the rules to respond to its motion. 997 082v I I 08426 -0 10020 22 asking for extension to Nov 25). At each point, Function Media consented to Google's request. But because of those extensions, Google now asks for a rushed schedule - with opening briefs due just two days from now on Wednesday December 16 and responses due one week later on December 23. During this one-week period, the preparation and depositions of the damages experts Walter Bratic and Michael Wagner will occur, in addition to the deposition of one of the inequitable conduct experts. Google's schedule has replies due on December 30, but in addition to the Christmas holiday, the preparation and deposition of the other inequitable conduct expert is scheduled to occur during this timeframe, and the depositions of the parties' technical experts are scheduled on December 30 and 31, respectively.2 Function Media has been trying to work with Google on an agreed schedule, but Google has insisted on the schedule it proposes to the Court and has refused to consider Function Media's altemative proposal or even to explain why it is necessary to have a hearing on January 5 as opposed to some other date before trial. See Exh E; Exh. F; Exh. G (emails from Function Media counsel to Google asking to meet and confer on this issue, explaining the hardships and the issues in Google's proposed schedule, and asking why a hearing date on January 5 is necessary)' Function Media agrees with Google on one key point - the parties should agree for a Daubert on a briefing schedule. The disagreement is whether the briefing and hearing should take place before or after expert discovery is complete - a seeming prerequisite hearing. Thus, Function Media respectfully requests the following briefing schedule, It is also no answer to say that the damages Daubert motions will concern only the damages experts, because both damages experts rely in part on the technical experts. 2 99'7 082v 1 I 08426-01 0020 with a hearing on these issues at the Court's pleasure after the reply briefs are due on January 13: December 29: Opening Briefs due January January 8: 13: Response Briefs due ReplY Briefs due Respectfully submitted, /s/ Joseoh S. Grinstern Max L. Tribble, Jr. State Bar No. 20213950 Email : mtribble@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana, Suite 5100 Houston, Texas, 77002 Telephone: (7 13) 651-9366 Facsimile: (7 13) 654-6666 Lead Attorney for Plaintiff OF COI-]NSEL: Joseph S. Grinstein State Bar No. 24002188 Aimée Robert State Bar No.24046729 SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77 002-5096 Telephone: (7 13) 651-9366 Fax: (713) 654-6666 j grinstein@susmangodfrey. com arobert@susman godfrey. com Jeremy Brandon State Bar No. 24040563 Warren T. Burns State Bar No. 240531 19 SUSMAN GODFREY L.L.P. 901 Main Street, Suite 5100 Dallas. Texas 7 5202-377 5 997 082v I I 08426-0 | 0020 Telephone: (214) 7 54-1900 Fax: (214) 754-1933 j brandon@susmangodfrey. com wburns@susmangodfrey. com Justin A. Nelson State Bar No.24034766 SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, Washington 98 I 0 I -3000 Telephone: (206) 516-3880 Fax: (206) 516-3883 j nel son@susmangodfrey. com Robert Christopher Bunt State Bar No. 00787165 Charles Ainsworth PARKER, BI]NT & AINSV/ORTH, P.C. 100 East Ferguson, Suite 1114 Tyler, Texas 75702 Telephone: (903) 531-3535 Fax: (903) 533-9687 rcbunt@Fbatyler.com charlev (ò.ob atvl er. c o m 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, Texas 7 5601 -5157 Telephone: (903) 236-9800 Fax: (903) 236-8787 ccapshaw@ cap shawlaw. com ederieuxfD capshawlaw. com i rambinØ.caoshawlaw. com Otis Carroll State BarNo. 03895700 Collin Maloney State Bar No. 00794219 997 082v II 08426-0 1 0020 IRELAND, CARROLL &,T<ELLEY, P.C. 6101 S. Broadway, Suite 500 Tyler, Texas 75703 Telephone: (903) 561-1 600 Fax: (903) 581-1071 oti scarro ll@ icklaw. com cmalonev@icklaw.com CERTIFICATE OF' SERVICE hereby certify that on December 14,2009,I electronically 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 Electronic Filing" to the attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means. I /s/ Joseph S. Grinstein Joseph S. Grinstein 997 082v I I 08426-0 10020

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