IP Innovation LLC et al v. Google, Inc.

Filing 114

RESPONSE/REPLY to 107 Notice (Other) and 113 Response to Non-Motion IP Innovation's Reply In Support Of Its Motion For A Protective Order Pursuant To Fed. R. Civ. P. 26(c) by IP Innovation LLC, Technology Licensing Corporation. (Gibbons, Paul) Modified on 1/21/2010 (sm, ).

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION IP INNOVATION L.L.C. AND TECHNOLOGY LICENSING CORPORATION, Plaintiffs, v. GOOGLE INC., Defendant. CASE NO. 2:07CV-503-RRR JURY TRIAL REQUESTED IP INNOVATION'S REPLY IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER PURSUANT TO FED.R.CIV.P. 26(c) As Google correctly notes, any attempt to block the taking of the Smith deposition is now effectively moot, as Google conducted the deposition on January 15th. Likewise, Google is correct that the timely objections raised by IP Innovation's motion could be dealt with as one of the upcoming motions in limine, the deadline for which is several weeks away. The Plaintiffs, however, were compelled to preserve their objections to the untimeliness of Google's deposition, given that: 1) Google did not identify who Mr. Smith was, or why his deposition was being taken until January 8, 2010; 2) Google had not included Mr. Smith on its list of witnesses, nor had Google included him amongst the 50 witnesses which it had identified only last month in their supplemental initial disclosure; and 3) because of the coincident date of expert supplemental reports on January 15th, Plaintiffs were not able to attend the deposition in person. IP Innovation, however, believes that such a motion should be unnecessary, as Plaintiffs prior to filing their motion indicated their willingness to stipulate to the authenticity of Google's web page as part of a larger compromise about the authenticity and admissibility of other exhibits that each side would likely rely upon at trial. IP Innovation is generally averse to filing such motions, except in cases such as the present motion to compel which was necessary to preserve their objections due to when the deposition was noticed and scheduled. Despite the present motion, however, the Plaintiffs are still amenable to reaching a compromise to agree to the admissibility and authenticity of such an exhibit. Thus, pursuant to Fed. R. Civ. P. 26 (c) and 32(a)(5)(A), Plaintiffs respectfully request that the Court bar Google's use of such testimony against the Plaintiffs. Respectfully submitted, /s/ Paul C. Gibbons Raymond P. Niro Joseph N. Hosteny Arthur A. Gasey Paul C. Gibbons Douglas M. Hall David J. Mahalek NIRO, SCAVONE, HALLER & NIRO 181 West Madison, Suite 4600 Chicago, Illinois 60602 Telephone: (312) 236-0733 Facsimile: (312) 236-3137 T. John Ward Jack Wesley Hill Ward & Smith 111 W. Tyler St. Longview, Texas 75601 Telephone: (903) 757-6400 Toll Free (866) 305-6400 Facsimile: (903) 757-2323 ATTORNEYS FOR IP INNOVATION L.L.C. and TECHNOLOGY LICENSING CORPORATION CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing IP INNOVATION'S REPLY IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER PURSUANT TO FED.R.CIV.P. 26(c) was filed with the Clerk of the Court on January 20, 2010 using the CM/ECF system, which will send notification of such filing to the following at their email address on file with the Court. David J. Beck Texas Bar No. 00000070 dbeck@brsfinn.com Michael E. Richardson Texas Bar No. 24002838 mrichardson@brsfirm.com BECK, REDDEN & SECREST, L.L.P. One Houston Center 1221 McKinney St., Suite 4500 Houston, Texas 77010 (713) 951-3700 (713) 951-3720 (Fax) John H. Hintz John.hintz@wilmerhale.com Victor F. Souto Victor.souto@wilmerhale.com Ross E. Firsenbaum Ross.firsenbaum@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 399 Park Avenue New York, NY 10022 (212) 230-8800 (212) 230-8888 (Fax) Mark G. Matuschak mark.matuschak@wilmerhale.com Richard A. Goldenberg Richard.goldenberg@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6000 (617) 526-5000 (Fax) Elizabeth I. Rogers Elizabeth.brannen@wilmerhale.com Anna T. Lee Anna.lee@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 1117 California Avenue Palo Alto, CA 94304 (650) 858-6042 (650) 858-6100 (Fax) /s/ Paul C. Gibbons

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