Polaris IP, LLC v. Google Inc. et al

Filing 495

RESPONSE to Motion re 476 SEALED MOTION (Defendant Yahoo!'s Motions in Limine) No. 4 Discovery Conduct and Source Code Production filed by Bright Response LLC. (Wiley, Elizabeth)

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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 YAHOO MOTION IN LIMINE NO. 4 (DISCOVERY CONDUCT AND SOURCE CODE PRODUCTION) Bright Response, LLC ("Bright Response") filed this response to Yahoo's Motion in Limine No. 4, which seeks to preclude any reference to Yahoo's discovery conduct in this case and, in particular, issues of Yahoo's source code production that have been before the Court on several occasions. Yahoo purports to be concerned with suggestions in Bright Response's expert that Bright Response may choose to expend trial time re-litigating source code and other discovery issues from the past year. To the contrary, Yahoo's well-documented conduct on this subject matter has already required an inordinate amount of Bright Response's and the Court's resources. 1 Nevertheless, it was proper to include such qualifications and caveats in Bright 1 See Dkt. No. 195 (September 1, 2009 Bright Response Motion to Compel Production of Source Code); Dkt. No. 209 (Reply in Support of Motion to Compel Production of Source Code; Dkt. No. 252 (Bright Response Motion to Compel Yahoo to Comply With Court Order of November 5, 2009 and Produce Source Code in Native Format as Maintained in Ordinary Course of Business); see also Dkt. No. 258 (Motion for Leave to Supplement Infringement Contentions as to Yahoo, addressing source code production and director structure issues); Dkt. No. 263 (Bright Response Reply in Support of Motion to Compel (Dkt. No. 252) & Decl. of Patrick Anderson concerning directory structure and search issues); Dkt. No. 322 (Bright Response Emergency Supplemental Brief in Support of January 25, 2010 Motion to Compel Yahoo to Comply with Court Order of November 5, 2009 and Produce Source Code in Native Format); Dkt. No. 347 (Court Order granting Bright Response leave to serve supplemental infringement contentions); Response's expert's report: even as of this filing, expert discovery has continued and fact discovery was continuing as recently as last week. Bright Response should not be prohibited, through the relief Yahoo seeks, from ensuring its technical expert is allowed to address all such documents, reports, and testimony, when such additional testimony is appropriate to his infringement opinion. Further, it is correct, as the parties' filed stipulation reflects and to which Yahoo refers (Dkt. No. 396), that after at least a year of disputes regarding the timing and manner of Yahoo's source code production, an accommodation was reached on the universe of source code that Bright Response at issue. That does not entitle Yahoo, however, to taint Bright Response in front of the jury with allegations of missing documents such as Yahoo has made concerning its laches defense as to Bright Response. See Defendants' Response to Bright Response's Motion for Summary Judgment, Dkt. No. 423, at 25-27. Although there is no evidence--and Defendants produced none in response to Bright Response's Motion for Summary Judgment 2--of any unreasonable delay to justify a laches defense as Yahoo frames it, a level playing field is in order. Thus, Bright Response should not be left without the opportunity to raise the issue, where appropriate, of Yahoo's non-production issues over the past year or more. If that requires Yahoo's enduring the consequences of having the jury hear of Yahoo's conduct over the past year regarding source code production, that must be the result. Bright Response should not be the party penalized with no equal opportunity to defend itself against Defendants' analogous Dkt. No. 355 (Court Order granting Dkt. No. 322 Bright Response Emergency Supplemental Brief in Support of its Motion to Compel). 2 See Bright Response Reply (Dkt. No. 465) in support of Motion for Summary Judgment at 1213. allegations that they could not secure sufficient documents to present their defense case, which, in their view, justifies the affirmative defense of laches. For the above-stated reasons, Yahoo's Motion in Limine No. 4 should be denied. 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: (512) 560.3480 Facsimile: (512) 551.0028 Email: lizwiley@wileyfirmpc.com Marc A. Fenster CA Bar No. 181067 mfenster@raklaw.com Alexander C. Giza CA Bar No. 212327 agiza@raklaw.com Andrew Weiss CA Bar No. 232974 aweiss@raklaw.com Adam Hoffman CA Bar No. 218740 ahoffman@raklaw.com RUSS, AUGUST & KABAT 12424 Wilshire Blvd., 12th Floor Los Angeles, CA 90025 (310) 826-7474 (310) 826-6991 (fax) Patrick R. Anderson PATRICK R. ANDERSON PLLC 4225 Miller Rd, Bldg. B-9, Suite 358 Flint, MI 48507 (810) 275-0751 (248) 928-9239 (fax) patrick@prapllc.com Andrew W. Spangler LEAD COUNSEL SPANGLER LAW P.C. 208 N. Green Street, Suite 300 Longview, Texas 75601 (903) 753-9300 (903) 553-0403 (fax) spangler@spanglerlawpc.com David M. Pridham LAW OFFICE OF DAVID PRIDHAM 25 Linden Road Barrington, Rhode Island 02806 (401) 633-7247 (401) 633-7247 (fax) david@pridhamiplaw.com John C. Hueston CA SBN 164921 IRELL & MANELLA, LLP 840 Newport Center Dr., Suite 400 Newport Beach, CA 92660 Tel: (949) 760-0991 Fax: (949) 760-5200 Email: jhueston@irell.com Adam S. Goldberg CA SBN 250172 IRELL & MANELLA, LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067 Tel: (310) 203-7535 Fax: (310) 203-7199 Email: agoldberg@irell.com CERTIFICATE OF SERVICE I certify that the foregoing Plaintiff's Response to Yahoo's Motion in Limine No. 4 was filed by the Court's CM/ECF system with notice to the parties on this 26th day of July 2010 andn served by email on counsel of record. \s\ Elizabeth A. Wiley Elizabeth A. Wiley

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