Polaris IP, LLC v. Google Inc. et al

Filing 493

RESPONSE to Motion re 455 SEALED MOTION in Limine 3 (Discovery Conduct) filed by Bright Response LLC. (Wiley, Elizabeth)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION BRIGHT RESPONSE, LLC, Plaintiff, v. GOOGLE INC., et al., Defendants. § § § § § § § § §

Civil Action No. 2:07-cv-371-CE JURY TRIAL DEMANDED

BRIGHT RESPONSE, LLC'S RESPONSE TO GOOGLE AND AOL MOTION IN LIMINE NO. 3 (DISCOVERY CONDUCT) Bright Response, LLC ("Bright Response") respectfully files this response in opposition to Google and AOL's ("Defendants") Motion in Limine No. 3, which seeks to preclude any reference to the discovery conduct in this case. The sole premise for this motion in limine is stated as being that based on review of Plaintiff's expert reports, Plaintiff may attempt to spend its trial time re-living the discovery disputes in this case. Mtn. at 1 ("Based on Plaintiff's expert reports and correspondence throughout discovery..."). On the contrary, language in the expert reports referring to information or to reports that had not been produced as of the date of the report is simply a product of the compressed time frame for expert discovery and ongoing fact discovery in the case. Bright Response also referred to this procedural reality in, for example, its Motions in Limine filed on July 22, 2010 (Dkt. No. 453), which, like the expert reports to which Google refers did, reserved the right to file additional motions in limine based on the ongoing discovery and additional expert reports not yet served. See Dkt. No. 453 at 2 n.1.

Indeed, source code was being produced as late as July 13, 2010, 1 even after opening expert reports were served, and expert depositions will continue until after the pre-trial conference on July 28, 2010. It is appropriate then that Plaintiff's expert reports, served at a time at which discovery was ongoing, and depositions of additional fact witnesses underway, would qualify their opinions awaiting any additional information that could still be produced. Defendants themselves, however, have made alleged non-production or inability to secure documents an issue for their defense case, by their reliance on a laches defense, 2 rendering their request for precluding any reference to non-production of documents at trial disingenuous. Defendants should not be permitted to accuse Plaintiff or taint Plaintiff with any fault in missing documents with regard to that defense, while at the same time seeking this Court's preclusion of Bright Response's ability to point to untimely production issues. Nor should Defendants be able to rely on this motion in limine to foreclose Bright Response's ability to proffer additional expert opinions or arguments based on additional fact discovery and expert discovery that is ongoing. For the above-stated reasons, Google and AOL's Motion in Limine No. 3 should be denied.

See Dkt. No. 426 at 6 (Plaintiff's Response to Defendants' Motion to Preclude Plaintiff from Submitting an Expert Report That Relied on Infringement Theories Not Adequately Disclosed in Plaintiff's Interrogatory Responses) and Ex. F (correspondence concerning production of source code after Plaintiff served Dr. Rhyne's expert report on July 6). Bright Response incorporates in reference that filing and all exhibits comprising docket number 426. See, e.g., Dkt. No. 423 (Defendants' joint response to Bright Response Motion for Summary Judgment) at 25. Bright Response disagrees that any such fact questions should be presented to the jury--much like inequitable conduct.
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Dated: July 26, 2010

Respectfully submitted, By: /s/ Elizabeth A. Wiley_ Elizabeth A. Wiley Elizabeth A. Wiley Texas State Bar No. 00788666 THE WILEY FIRM PC 3900 Petes Path Austin, Texas 78731 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Marc A. Fenster CA Bar No. 181067 [e-mail] Alexander C. Giza CA Bar No. 212327 [e-mail] Andrew Weiss CA Bar No. 232974 [e-mail] Adam Hoffman CA Bar No. 218740 [e-mail] RUSS, AUGUST & KABAT 12424 Wilshire Blvd., 12th Floor Los Angeles, CA 90025 [phone] [phone] (fax) Patrick R. Anderson PATRICK R. ANDERSON PLLC 4225 Miller Rd, Bldg. B-9, Suite 358 Flint, MI 48507 [phone] [phone] (fax) [e-mail]

Andrew W. Spangler LEAD COUNSEL SPANGLER LAW P.C. 208 N. Green Street, Suite 300 Longview, Texas 75601 [phone] [phone] (fax) [e-mail] David M. Pridham LAW OFFICE OF DAVID PRIDHAM 25 Linden Road Barrington, Rhode Island 02806 [phone] [phone] (fax) [e-mail] John C. Hueston CA SBN 164921 IRELL & MANELLA, LLP 840 Newport Center Dr., Suite 400 Newport Beach, CA 92660 Tel: [phone] Fax: [phone] Email: [e-mail] Adam S. Goldberg CA SBN 250172 IRELL & MANELLA, LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067 Tel: [phone] Fax: [phone] Email: [e-mail]

CERTIFICATE OF SERVICE I certify that the foregoing Plaintiff's Response to Google and AOL's Motion in Limine was served by the Court's CM/ECF system on this 26th day of July 2010. \s\ Elizabeth A. Wiley Elizabeth A. Wiley