Polaris IP, LLC v. Google Inc. et al

Filing 584

RESPONSE to Motion re 578 MOTION to Continue Trial and for Additional Time for Trial filed by Yahoo!, Inc.. (Doan, Jennifer)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION BRIGHT RESPONSE, LLC F/K/A POLARIS IP, LLC v. GOOGLE INC., et al. NO. 2:07CV-371-TJW-CE

DEFENDANT YAHOO! INC.'S RESPONSE TO GOOGLE'S EMERGENCY MOTION TO CONTINUE TRIAL DATE AND FOR ADDITIONAL TIME FOR TRIAL During the Pre-trial Conference, Judge Everingham requested that Defendants propose a remedy to address the delayed production of the Angotti declaration (Pre-trial Conference Tr. 78:12-21, July 28, 2010). Defendant Google filed an emergency motion to continue the trial date and for additional time for trial. (Dkt. 578.) Defendant Yahoo! opposes Google's request to continue the trial date, but joins in its request for additional time for trial. Unlike its co-defendant, Yahoo! does not wish to conduct further discovery regarding the Angotti declaration, and Yahoo! believes that all discovery should be closed in this case. Yahoo! also believes that a continuance is unnecessary in this case and that a continuance would be prejudicial to Yahoo! if Plaintiff is allowed to conduct further fact discovery or submit, for example, supplemental expert reports during the continuance. Yahoo! does join Google's request for additional time for trial, however. Yahoo! agrees that Google and Yahoo! have separate systems, Plaintiff has significantly separate theories against each defendant, and substantially different damages cases. Further, Defendants intend to call thirteen live witnesses, where only three overlap. Thirteen hours for Defendants to jointly present their separate cases is prejudicial.

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Yahoo! is prepared to proceed with trial starting August 2 and is not opposed to trying this case without its co-defendant Google. In addition, Yahoo! proposes the following relief in an attempt to cure the prejudice resulting from Plaintiff's delayed production of the Angotti declaration: (1) Plaintiff cannot enter into evidence the Angotti declaration, or present testimony in the presence of the jury, regarding the Angotti declaration; and (2) Plaintiff cannot enter into evidence, or present testimony in the presence of the jury, regarding any statements that are substantially similar to the statements made in the Angotti declaration..

Dated: August 1, 2010

Respectfully Submitted, /s/ Jennifer Doan Jennifer Doan Joshua Reed Thane HALTOM & DOAN Crown Executive Center, Suite 100 6500 Summerhill Rd. Texarkana, Texas 75503 Tel: [phone] Fax: [phone] Email: [e-mail] Email: [e-mail] William C. Rooklidge HOWREY, LLP 4 Park Plaza, Suite 1700 Irvine CA 92614-2559 Telephone: [phone] [e-mail] Jason C. White 2

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Mansi Shah Scott Sherwin HOWREY LLP 321 N. Clark, Suite 3400 Chicago, IL 60654 Tel: [phone] Fax: [phone] Email: [e-mail] Email: [e-mail] Email: [e-mail] Attorneys for Defendant Yahoo! Inc.

CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). All other counsel of record not deemed to have consented to electronic service were served with a true and correct copy of the foregoing by certified mail, return receipt requested, on August 1, 2010. /s/ Jennifer Doan Jennifer H. Doan

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