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

Filing 334

MOTION to Expedite Consideration of Motion to Preclude Admission of Untimely Evidence by Function Media, L.L.C.. (Attachments: # 1 Text of Proposed Order)(Tribble, Max)

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Function Media, L.L.C. v. Google, Inc. et al Doc. 33 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION FUNCTION MEDIA, L.L.C. Plaint iff, vs. GOOGLE INC. AND YAHOO!, INC. Defendants. § § § § § § § § § Civil Action No. 2007-CV-279 JURY TRIAL DEMANDED MOTION TO EXPEDITE CONSIDERATION OF MOTION TO PRECLUDE ADMISSION OF UNTIMELY EVIDENCE Function Media respectfully requests that this Court expedite briefing and argument in the concurrently-filed Motion to Preclude Admission of Untimely Evidence. As explained in that motion, Google is preparing for a trial by ambush. Five days ago, Google disclosed for the first time that it had just "discovered" 22,000 additional computer files pertinent to one of its prior art references, AdForce. Google now presumably wishes to introduce these late-produced materials at trial. Likewise, on Tuesday, December 22, Google disclosed that it was bringing to trial as a "will call" witness Mr. Ben Lee, a Google employee who was not disclosed during the discovery period. Google's last-minute tactics have significantly prejudiced FM in its pretrial preparations. FM requests an immediate resolution of these evidentiary issues so that it can properly get ready for the looming trial. Accordingly, FM requests that Google be required to respond to FM's 1 998669v1/08426-010020 Dockets.Justia.com Motion to Preclude within 8 days of its filing, and that the motion be heard at the January 5 pretrial conference.1 A proposed order is attached. Respect fully submitted, /s/ Max L. Tribble, Jr. ___ Max L. Tribble, Jr. State Bar No. 20213950 Email: mtribble@susmangodfrey.com SUSMAN GODFREY LLP 1000 Louisiana, Suite 5100 Houston, Texas, 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666 Lead Attorney for Plaintiff OF COUNSEL: Just in A. Nelson, State Bar No. 24034766 SUSMAN GODFREY L.L.P. 1201Third Avenue, Suite 3800 Seattle, Washington 98101-3000 Telephone: (206) 516-3880 Facsimile: (206) 516-3883 jnselson@susmangodfrey.com 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 77002-5096 Telephone: (713) 651-9366 Fax: (713) 654-6666 Email: jgrinstein@susmangodfrey.com Email: arobert@susmangodfrey.com 1 Google will undoubtedly argue that expediting of this motion would be unfair, because it failed to have its own Daubert motion as to Mr. Bratic expedited. The two motions are apples and oranges, however. First, FM's Motion to preclude is a short motion dealing with basic discovery issues, whereas Google's Daubert motion spans 15 pages and depended upon simultaneous expert depositions. Second, the problem with timing as to both motions was of Google's own making. Here, Google has forced FM into an expedited posture. But the principal reason that Google felt pressed as to its Daubert briefing was that Google had asked for and received delays in the service of the expert reports, which pushed back the expert discovery and briefing schedule. 2 998669v1/08426-010020 Jeremy Brandon, State Bar No. 24040563 SUSMAN GODFREY L.L.P. Suite 5100 901 Main Street Dallas, Texas 75202-3775 Telephone: (214) 754-1900 Fax: (214) 754-1933 Email:jbrandon@susmangodfrey.com CERTIFICATE OF CONFERENCE Counsel for plaintiff have conferred with counsel for Google. Google is opposed to this motion. /s/ Joseph S. Grinstein Joseph S. Grinstein CERTIFICATE OF SERVICE I hereby certify that all counsel of record, who are deemed to have consented to electronic service are being served this 23rd day o f December, 2009 with a copy o f this document via the Court's CM/ECF system per Local Rule CD-5(a)(3). /s/ Joseph S. Grinstein Joseph S. Grinstein 3 998669v1/08426-010020 998669v1/08426-010020

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