Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Filing 767

RESPONSE in Opposition re #735 MOTION for Reconsideration and Objections to Judge Love's Order Granting Bedrock's Motion For Leave To Supplement Expert Report of Roy Weinstein [Doc No 666] MOTION for Reconsideration and Objections to Judge Love's Order Granting Bedrock's Motion For Leave To Supplement Expert Report of Roy Weinstein [Doc No 666] filed by Bedrock Computer Technologies, LLC. (Attachments: #1 Exhibit A, #2 Text of Proposed Order)(Baxter, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

BEDROCK COMPUTER
TECHNOLOGIES LLC,
Plaintiff,
v.
SOFTLAYER TECHNOLOGIES, INC.,
et al.
Defendants.

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CASE NO. 6:09-cv-269-LED
Jury Trial Demanded

BEDROCK’S RESPONSE IN OPPOSITION TO DEFENDANTS’ OBJECTIONS TO
AND MOTION FOR RECONSIDERATION OF JUDGE LOVE’S ORDER GRANTING
BEDROCK’S MOTION FOR LEAVE TO SUPPLEMENT EXPERT REPORT OF ROY
WEINSTEIN

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Plaintiff Bedrock Computer Technologies LLC (“Bedrock”) hereby submits its response
in opposition to Defendants’ Objections to and Motion for Reconsideration of Judge Love’s
Order Granting Bedrock’s Motion for Leave to Supplement Expert Report of Roy Weinstein
(Dkt. No. 735). Bedrock respectfully requests that the Court adopt Magistrate Judge Love’s
Order (Dkt. No. 691) (“Order”) permitting Bedrock to supplement Mr. Weinstein’s expert report,
overrule Defendants’ objections, and deny Defendants’ motion for reconsideration.
I.

INTRODUCTION
After excluding the portions of Mr. Weinstein’s opening expert report which relied upon

settlement licenses (Dkt. No. 656) and considering the parties’ briefings, Magistrate Judge Love
correctly found that Bedrock’s Motion for Leave to Supplement Expert Report of Roy Weinstein
should be granted. See Dkt. No. 691. Defendants’ motion, which seeks to overturn Judge
Love’s Order, raises arguments which were previously carefully considered and then rejected by
Judge Love. For these reasons, the Court should deny Defendants’ motion and adopt Judge
Love’s Order.
II.

ARGUMENT
A.

Defendants Have Not Demonstrated that Judge Love’s Findings Are Clearly
Erroneous or Contrary to Law.

Federal Rule of Civil Procedure 72(a) and Appendix B, Local Rule 4(a) make clear that a
district court may modify or set aside a magistrate’s order on a non-dispositive issue only where
the order is “clearly erroneous or . . . contrary to law.” See also 28 U.S.C. § 636(b)(1)(A) (“A
judge of the court may reconsider any pretrial matter under [section (A)] where it has been
shown that the magistrate’s order is clearly erroneous or contrary to law.”).

Because the

standard of review for a motion for reconsideration is so highly deferential, a party seeking
reconsideration must show more than that the prior decision is “just maybe or probably wrong;
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[the prior decision] must . . . strike [the court] as wrong with the force of a five-week-old,
unrefrigerated dead fish.” TFWS v. Franchot, 572 F.3d 186, 194 (4th Cir. 2009).
As is demonstrated below, Defendants have merely rehashed arguments which were
properly rejected by Judge Love. In doing so, they have effectively ignored their burden of
demonstrating “clear error.” In any event, Judge Love issued a well-reasoned opinion which
granted Defendants leave to depose Mr. Weinstein, provide their own supplemental report on
damages, and object to Mr. Weinstein’s supplemental report at trial. ORDER at 2. Even if the
Defendants had actually attempted to show clear error in their motion, they would have failed
because no clear error exists.

The Court should therefore deny Defendants’ motion for

reconsideration.
B.

Mr. Weinstein’s Supplemental Report Does Not Set Forth “an Entirely New
Methodology.”

Defendants’ argument that Mr. Weinstein’s supplemental report is not a “proper”
supplement is unavailing. Indeed, the performance tests and resulting cost savings underlying
Mr. Weinstein’s supplemental report were extensively discussed in his opening report. See Dkt.
No. 560, Ex. A, at ¶¶ 72, 176, 240, and 248. As such, Defendants cannot reasonably contend
that Mr. Weinstein’s supplement, which merely expounds upon a theory contained within his
opening report, sets forth an “entirely new methodology.”

Rather, Bedrock properly

“supplement[ed] its report to conform to the Court’s ruling as to the extrapolation of a per server
royalty from the litigation licenses,” as permitted by Judge Love. See Dkt. No. 691 at 1.
In addition, Judge Love’s Order attempted to minimize any prejudice to Defendants as a
result of Mr. Weinstein’s supplemental report by giving Defendants leave to depose Mr.
Weinstein on the subject matter contained in his supplemental report. ORDER at 2. Defendants
did, in fact, depose Mr. Weinstein for an additional four hours and forty-two minutes. Weinstein

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Dep. (Apr. 5, 2011) (attached as Ex. A) at 193:25-194:3. Further, as permitted by Judge Love,
Defendants submitted a Supplemental Rebuttal Expert Report of Keith R. Ugone Ph. D. in
response to Mr. Weinstein’s supplemental report.1 As such, Defendants cannot demonstrate that
Judge Love’s ruling is clearly erroneous or contrary to law.
III.

CONCLUSION.
For the aforementioned reasons, Bedrock respectfully requests that the Court deny

Defendants’ Motion for Reconsideration.

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These precautions also serve to rebut Defendants’ arguments regarding the untimeliness of Mr.
Weinstein’s supplemental report.
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DATED: April 25, 2011

Respectfully submitted,
McKOOL SMITH, P.C.
/s/ Douglas A. Cawley
Sam F. Baxter
Texas Bar No. 01938000
McKOOL SMITH, P.C.
[e-mail]
104 E. Houston Street, Suite 300
P.O. Box 0
Marshall, Texas 75670
Telephone: [phone]
Facsimile: [phone]
Douglas A. Cawley, Lead Attorney
Texas Bar No. 04035500
[e-mail]
Theodore Stevenson, III
Texas Bar No. 19196650
[e-mail]
Scott W. Hejny
Texas Bar No. 24038952
[e-mail]
Jason D. Cassady
Texas Bar No. 24045625
[e-mail]
J. Austin Curry
Texas Bar No. 24059636
[e-mail]
Phillip M. Aurentz
Texas Bar No. 24059404
[e-mail]
Stacie Greskowiak
Texas State Bar No. 24074311
[e-mail]
Ryan A. Hargrave
Texas State Bar No. 24071516
[e-mail]
McKOOL SMITH, P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Telephone: [phone]
Facsimile: 214-978-4044

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Robert M. Parker
Texas Bar No. 15498000
Robert Christopher Bunt
Texas Bar No. 00787165
PARKER, BUNT & AINSWORTH, P.C.
100 E. Ferguson, Suite 1114
Tyler, Texas 75702
Telephone: [phone]
Facsimile: 903-533-9687
E-mail: [e-mail]
E-mail: [e-mail]
ATTORNEYS FOR PLAINTIFF
BEDROCK COMPUTER
TECHNOLOGIES LLC

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CERTIFICATE OF SERVICE

I hereby certify that all counsel of record who are deemed to have consented to electronic
service are being served with a copy of the forgoing document via the Court’s CM/ECF system
pursuant to the Court’s Local Rules this 25th day of April, 2011.

/s/ Ryan A. Hargrave
Ryan A. Hargrave

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