Polaris IP, LLC v. Google Inc. et al

Filing 498

RESPONSE to Motion re 476 SEALED MOTION (Defendant Yahoo!'s Motions in Limine) No. 5 Limit Expert Testimony to Reports 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 YAHOO MOTION IN LIMINE NO. 5 (LIMIT EXPERT TESTIMONY TO REPORTS) Plaintiff Bright Response, LLC ("Bright Response") files this response to Yahoo Motion in Limine No. 5 (Dkt. No. 476) concerning its request to preclude expert testimony at trial that is beyond the scope of expert reports. Bright Response filed its motions in limine 3-33 (Dkt. No. 453), requesting this same limitation. Bright Response requested as its motion in limine no. 7 that the Court preclude the following: 7. Any references or testimony related to information or opinions not included in an expert reports exchanged among the parties is not the proper subject of testimony at trial by Defendants' experts. Fed. R. Civ. P. 26. Such references have no relevance to any claim or defense in this lawsuit because the report controls and the expert may not vary or expand testimony beyond the report. Fed. R. Evid. 402. Any probative value that the other matters arguably may have is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or the risk of misleading the jury in terms of the proper boundaries of the expert's testimony. Fed. R. Evid. 403. Dkt. No. 453 at 3. Insofar as Yahoo's motion in limine number 5 requests the same relief as Bright Response's motion in limine no. 7, Bright Response concurs in that request, and Bright Response agrees that such a limitation should be binding on all parties and their expert witnesses. .

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 P.O. Box. 303280 Austin, Texas 78703-3280 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]

2

CERTIFICATE OF SERVICE I certify that counsel of record who are deemed to have consented to electronic service are being served this 26th day of July, 2010, with a copy of this document via the Court's CM/ECF systems per Local Rule CV-5(a)(3). Any other counsel will be served electronic mail, facsimile, overnight delivery and/or First Class Mail on this date. \s\ Elizabeth A. Wiley Elizabeth A. Wiley

3