Polaris IP, LLC v. Google Inc. et al

Filing 591

***DEFICIENT DOCUMENT, PLEASE IGNORE.***Joint MOTION Request for Relief (Jury Instruction) by Google Inc., Yahoo!, Inc.. (Attachments: # 1 Text of Proposed Order)(Perlson, David) Modified on 8/3/2010 (sm, ).

Polaris IP, LLC v. Google Inc. et al

Doc. 591

IN THE UNITED STATES DISTRICT COURT FOR THE 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

DEFENDANTS' REQUEST FOR RELIEF During the August 2, 2010 pretrial motion hearing, the Court stated that it would consider appropriate requests to remedy the prejudice suffered by Google, including jury instructions. (Tr. at 6.) In their Motion for Discovery Sanctions, Defendants demonstrated that they have been prejudiced by Bright Response's discovery violations regarding the EZ Reader prior art, including: 1. failing to produce its 2003 communications with Chuck Williams regarding EZ Reader; 2. failing to disclose Mr. Williams as a person having knowledge of key issues in this case, including the deployment of EZ Reader; 3. failing to produce a 2004 declaration of Anthony Angotti regarding EZ Reader until the day Plaintiff's invalidity summary judgment opposition brief was due; 4. selective production of e-mail correspondence of Amy Rice regarding EZ Reader; and

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Dockets.Justia.com

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failing to prepare its 30(b)(6) designee regarding topics related to EZ Reader.1

(Dkt. No. 478.) Defendants respectfully submit the following to cure such prejudice: an instruction to the jury that Bright Response failed to produce to Defendants two declarations of Anthony Angotti, emails of Amy Rice, and potentially other documents in the possession of counsel of Bright Response's affiliate, and that the jury can infer that such documents support that EZ Reader was in public use prior to the April 3, 1996 critical date of the `947 patent. The requested relief is directly tied to Bright Response's discovery violations, each of which involved key witnesses and their knowledge or documents regarding the EZ Reader system. Conclusion For the foregoing reasons, Defendants' Request for Relief should be granted. DATED: August 2, 2010 Respectfully submitted, QUINN EMANUEL URQUHART & SULLIVAN, LLP /s/ David A. Perlson Charles K. Verhoeven, CA Bar No. 170151 LEAD ATTORNEY David A. Perlson, CA Bar No. 209502 Amy H. Candido, CA Bar No. 237829 QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Jennifer Parker Ainsworth TX Bar No. 00784720 Wilson, Robertson & Cornelius, P.C. P.O. Box 7339 Tyler, Texas 75711 Telephone: [phone] Facsimile: [phone] [e-mail] 1 Attorneys for Defendant Google Inc. and confirm it As discussed in Google's Motion to Continue, Plaintiff still has failed to AOL LLC has produced non-privileged documents from Angotti, Rice, or Latham and Watkins regarding the EZ Reader. William C. Rooklidge Email: [e-mail] Bar No. 6238352 01980.51452/3612829.1 2 Howrey, LLP 4 Park Plaza, Suite 1700 Irvine, CA 92614-2559

Facsimile: [phone] [e-mail] Attorneys for Defendant Google Inc. and AOL LLC William C. Rooklidge Email: [e-mail] Bar No. 6238352 Howrey, LLP 4 Park Plaza, Suite 1700 Irvine, CA 92614-2559 Telephone: [phone] Jason C White Howrey LLP - Chicago 321 North Clark Street Suite 3400 Chicago , IL 60610 312-595-1239 312-595-2250 ­ facsimile [e-mail] Jennifer H. Doan Joshua R. Thane HALTOM & DOAN Crown Executive Center, Suite 100 6500 Summerhill Road Texarkana, TX 75503 Tel: [phone] Fax: [phone] [e-mail] [e-mail] Attorneys for Defendant Yahoo! CERTIFICATE OF SERVICE The undersigned hereby certifies that counsel of record who are deemed to have consented to electronic service are being served today with a copy of this document via the Court's ECF system per Local Rule CV-5(a)(3), as well as by electronic mail. Any other counsel of record will be served via electronic mail, facsimile transmission and/or first class mail on today's date. By /s/ Todd Kennedy Todd Kennedy 3

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