Polaris IP, LLC v. Google Inc. et al

Filing 590

MOTION to Strike Google's Witnesses Whearley and Wagner Disclosed On August 1, 2010 by Bright Response LLC. (Attachments: # 1 Text of Proposed Order)(Wiley, Elizabeth)

Polaris IP, LLC v. Google Inc. et al

Doc. 590

N 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 MOTION TO STRIKE GOOGLE INC.'S WITNESSES WHEARLEY AND WAGNER DISCLOSED ON AUGUST 1, 2010 Bright Response, LLC files this motion to strike both of the newly-disclosed witnesses Google identified the day before trial, on Sunday August 1, 2010. As already set forth in Bright Response's response to the Google Motion for Continuance, which Bright Response incorporates by reference, Bright Response received from Google August 1, 2010, supplemental disclosures. In those disclosures Google identified, for the first time, two never-before-disclosed witnesses. Neither of them is new and undiscovered. One of them is Google's damages expert from the Function Media trial, Mr. Wagner. See Function Media, L.L.C. v. Google Inc., 2010 WL 272409, at *2 (E.D. Tex. Jan. 15, 2010). The other, Mr. Whearley, is a co-worker of one of the inventors, Amy Rice, whom Ms. Rice identified in her deposition almost five months ago--in March 2010. 1 Because the prejudice from disclosing new witnesses on the eve of trial is readily apparent and significant, there is no adequate remedy except to strike the witnesses and preclude Google from calling these witnesses for trial. See Fed. R. Civ. P. 37(c)(1). Accordingly, Bright

Bright Response also incorporates by reference the exhibits that Bright Response filed in support of its response to the motion to continuance, which demonstrate Google's knowledge of these witnesses, including the excerpt from Ms. Rice's deposition and the supplemental disclosures.

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Response requests that the Court enter an order precluding Google from calling or relying on these witnesses in any way. Dated: August 2, 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.D. 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]

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CERTIFICATE OF CONFERENCE I hereby state that the local rules of this District were complied with as follows. I asked for a meet and confer with counsel for Google, Mr. David Perlson, and discussed the issue on Sunday August 1, 2010. I asked that Google withdraw the newly disclosed witnesses. He did not agree, as set forth as well in the text of Bright Response's Response to the Motion for Continuance. Therefore, no agreement was reached on this issue of withdrawing the newly disclosed witnesses, presenting an issue for the Court. /s/ Andrew W. Spangler Andrew W. Spangler CERTIFICATE OF SERVICE I certify that counsel of record who are deemed to have consented to electronic service are being served this 2nd day of August, 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

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