Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1176

MOTION for Leave to Designate Additional Exhibits by Adobe Systems Incorporated, Amazon.com Inc., CDW Corporation, Citigroup Inc., Google Inc., J.C. Penney Corporation, Inc., Staples, Inc., The Go Daddy Group, Inc., Yahoo! Inc., YouTube, LLC. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 - Emails)(Doan, Jennifer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
TYLER DIVISION
EOLAS TECHNOLOGIES, INC. and
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA
Plaintiffs,
v.
ADOBE SYSTEMS, INC., ET AL.,
Defendants.

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CIVIL ACTION NO. 6:09-CV-446 (LED)

DEFENDANTS’ MOTION FOR LEAVE TO
DESIGNATE ADDITIONAL EXHIBITS
This case still includes ten disparate defendants – each accused of infringing multiple
claims of two patents. Indeed, Plaintiffs still assert over 20 claims and accuse at least, if not
more than, 100 products/features. Based upon the breadth of Plaintiffs’ case, all ten Defendants
cannot reasonably be expected to approach this trial with only 250 combined exhibits. In fact,
under the current limits each defendant would be required to defend against Plaintiffs’ vast
expanse of infringement claims, defend against Plaintiffs’ damages theories, and prove invalidity
by clear and convincing evidence based upon only 25 exhibits apiece. Not only would this
exhibit limit prejudice Defendants, it would preclude Defendants from being able to fully present
each of the defenses they are entitled to present. As such, Defendants seek leave from this Court
to designate 250 exhibits common to all defendants plus 150 exhibits for each individual
defendant. While Defendants have reached out to Plaintiffs with multiple proposals in an
attempt to reach an agreement regarding the limitation of exhibits, Defendants have been met

DEFENDANTS’ MOTION FOR LEAVE TO DESIGNATE ADDITIONAL EXHIBITS – Page 1

with nothing more than a resounding “no.” See Exhibit 1, Emails between J. Thane and J.
Campbell.1
This is not a case where a defendant is seeking to designate a large number of exhibits
only to frustrate the system. Here, the ten Defendants are seeking to acquire leave to designate
exhibits necessary to defend themselves in this expansive lawsuit. In fact, Plaintiffs (of which
there are only two) have also sought leave to exceed the Court’s standing order. Defendants do
not oppose Plaintiffs’ request for 400 total exhibits, even though Plaintiffs have relentlessly held
Defendants’ feet to the fire on this topic. Extrapolating the 400 exhibits requested by Plaintiffs
over the ten Defendants remaining in this case would result in some 2000 exhibits. While the
total number of exhibits requested by Defendants is therefore larger than the number requested
by Plaintiffs, on a per-party basis, the number is significantly smaller.
Plaintiffs’ argument that Defendants sought an extension of the exhibit list deadline based
upon the Court’s standing order application should fall on deaf ears. During the negotiations to
extend an earlier exhibit designation deadline Defendants informed Plaintiffs of the Court’s
standing order regarding exhibits. Further, Defendants informed Plaintiffs that they were
working under the assumption that the Court’s standing order applies to this case. Defendants,
however, never made a representation that they would not seek leave to exceed the Court’s
limitation if ten defendants remained in the case when the exhibit designation approached.
While Defendants have worked together in an attempt to limit the number of designated exhibits,
they cannot be expected to limit themselves to 25 exhibits a piece.

1

Given the complexities of coordinating between ten defendants, Defendants anticipate serving an
amended exhibit list early next week. Of note, during the last two weeks of December, some Defendants
received for the first time a hard drive containing approximately 350,000 documents from the University
of California. It is unreasonable to think those documents could be reviewed and designated in such a
short time period.

DEFENDANTS’ MOTION FOR LEAVE TO DESIGNATE ADDITIONAL EXHIBITS – Page 2

As such, Defendants request leave to designate 250 exhibits common to all defendants
plus 150 exhibits for each individual defendant.
Respectfully submitted,
/s/ Jennifer H. Doan
Jennifer H. Doan (TX Bar No. 08809050)
Joshua R. Thane (TX Bar No. 24060713)
HALTOM & DOAN
6500 Summerhill Road, Suite 100
Texarkana, TX 75503
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Edward R. Reines
Jared B. Bobrow
Sonal N. Mehta
Aaron Y. Huang
Andrew L. Perito
WEIL, GOTSHAL & MANGES LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Doug W. McClellan
WEIL, GOTSHAL & MANGES LLP
700 Louisiana, Suite 1600
Houston, TX 77002
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Otis Carroll (TX Bar No. 3895700)
Deborah Race (TX Bar No. 11648700)
IRELAND, CARROLL & KELLEY, P.C.
6101 South Broadway, Suite 500
Tyler, Texas 75703

DEFENDANTS’ MOTION FOR LEAVE TO DESIGNATE ADDITIONAL EXHIBITS – Page 3

Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
ATTORNEYS FOR DEFENDANT
AMAZON.COM INC. AND
YAHOO! INC.

/s/ Thomas L. Duston (with permission)
Thomas L. Duston
[e-mail]
Anthony S. Gabrielson
[e-mail]
Scott A. Sanderson
[e-mail]
MARSHALL, GERSTEIN & BORUN LLP
6300 Willis Tower
233 South Wacker Drive
Chicago, IL 60606-6357
[phone]
Brian Craft
[e-mail]
Eric H. Findlay
[e-mail]
FINDLAY CRAFT, LLP
6760 Old Jacksonville Highway, Suite 101
Tyler, TX 75703
[phone]
ATTORNEYS FOR DEFENDANT
CDW LLC

/s/ Christopher M. Joe (with permission)
Christopher M. Joe
[e-mail]
Eric W. Buether
[e-mail]
Niky Bukovcan
[e-mail]
1700 Pacific, Suite 2390
Dallas, Texas 75201
Telephone: [phone]
Facsimile: [phone]

DEFENDANTS’ MOTION FOR LEAVE TO DESIGNATE ADDITIONAL EXHIBITS – Page 4

ATTORNEYS FOR DEFENDANT
J.C. PENNEY CORPORATION, INC.

/s/ Mark Matuschak (with permission)
Joe W. Redden, Jr.
Michael Ernest Richardson
BECK REDDEN & SECREST
1221 McKinney
Suite 4500
Houston, TX 77010
713.951.6284
[e-mail]
[e-mail]
Mark G. Matuschak
Donald R. Steinberg
WILMER CUTLER PICKERING HALE
AND DORR LLP
60 State Street
Boston, MA 02109
617.526.5000
[e-mail]
[e-mail]
Kate Hutchins
WILMER CUTLER PICKERING HALE
AND DORR LLP
399 Park Avenue
New York, NY 10022
212.230.8800
[e-mail]
Daniel V. Williams
WILMER CUTLER PICKERING HALE
AND DORR LLP
1875 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
202.663.6012
[e-mail]
ATTORNEYS FOR DEFENDANT
STAPLES, INC.

DEFENDANTS’ MOTION FOR LEAVE TO DESIGNATE ADDITIONAL EXHIBITS – Page 5

/s/ Neil J. McNabnay (with permission)
Thomas M. Melsheimer ([e-mail])
Texas Bar No. 13922550
Neil J. McNabnay ([e-mail])
Texas Bar No. 24002583
FISH & RICHARDSON P.C.
1717 Main Street, Suite 5000
Dallas, TX 75201
[phone] (Telephone)
[phone] (Facsimile)
Proshanto Mukherji
E-mail: [e-mail]
FISH & RICHARDSON P.C.
One Marina Park Drive
Boston, MA 02110-1878
617-542-5070 (Telephone)
617-542-8906 (Facsimile)
ATTORNEYS FOR DEFENDANT
THE GO DADDY GROUP, INC.
/s/ M. Scott Fuller (with permission)
Edwin R. DeYoung
Texas Bar No. 05673000
Roy W. Hardin
Texas Bar No. 08968300
Roger Brian Cowie
Texas Bar No. 00783886
M. Scott Fuller
Texas Bar No. 24036607
Galyn Gafford
Texas Bar No. 24040938
LOCKE LORD LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201-6776
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
ATTORNEYS FOR DEFENDANT
CITIGROUP INC.
/s/ David J. Healey (with permission)
David J. Healey
E-mail: [e-mail]

DEFENDANTS’ MOTION FOR LEAVE TO DESIGNATE ADDITIONAL EXHIBITS – Page 6

FISH & RICHARDSON P.C.
1 Houston Center
1221 McKinney Street, Suite 2800
Houston, TX 77010
713-654-5300 (Telephone)
713-652-0109 (Facsimile)
OF COUNSEL:
Frank E. Scherkenbach
E-mail: [e-mail]
FISH & RICHARDSON P.C.
225 Franklin Street
Boston, MA 02110-2804
617-542-5070 (Telephone)
617-542-8906 (Facsimile)
Joseph P. Reid
E-mail: [e-mail]
Jason W. Wolff
E-mail: [e-mail]
FISH & RICHARDSON P.C.
12390 El Camino Real
San Diego, CA 92130
858-678-5070 (Telephone)
858-678-5099 (Facsimile)
ATTORNEYS FOR DEFENDANT
ADOBE SYSTEMS INCORPORATED
/s/ Doug E. Lumish (with permission)
Douglas E. Lumish (pro hac vice)
[e-mail]
Jeffrey G. Homrig (pro hac vice)
[e-mail]
Jonathan K. Waldrop (pro hac vice)
[e-mail]
Joseph H. Lee (pro hac vice)
[e-mail]
Parker C. Ankrum (pro hac vice)
[e-mail]
KASOWITZ, BENSON, TORRES &
FRIEDMAN, LLP
1360 Peachtree St., N.E., Suite 1150
Atlanta, GA 30309
Tel: [phone]
Fax: [phone]

DEFENDANTS’ MOTION FOR LEAVE TO DESIGNATE ADDITIONAL EXHIBITS – Page 7

James R. Batchelder (pro hac vice)
[e-mail]
Sasha G. Rao (pro hac vice)
[e-mail]
Mark D. Rowland
[e-mail]
Brandon Stroy (pro hac vice)
[e-mail]
Lauren Robinson (pro hac vice)
[e-mail]
Rebecca R. Hermes (pro hac vice)
[e-mail]
Han Xu (pro hac vice)
[e-mail]
ROPES & GRAY LLP
1900 University Avenue, 6th Floor
East Palo Alto, California 94303-2284
Telephone: [phone]
Facsimile: [phone]
Michael E. Jones (Bar No. 10929400)
[e-mail]
Allen F. Gardner (Bar No. 24043679)
[e-mail]
POTTER MINTON
A Professional Corporation
110 N. College, Suite 500
Tyler, TX 75702
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANTS
GOOGLE, INC. AND YOUTUBE, LLC

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 this the 6th day of January, 2012.

/s/ Jennifer H. Doan
Jennifer H. Doan

DEFENDANTS’ MOTION FOR LEAVE TO DESIGNATE ADDITIONAL EXHIBITS – Page 8

CERTIFICATE OF CONFERENCE
Counsel for Amazon and Yahoo! conferred with counsel for Plaintiffs via e-mail on
numerous occasions and in person on January 4, 2012. The parties have not been able to reach
an agreement, and Plaintiffs oppose this motion.

/s/ Joshua R. Thane
Joshua R. Thane

DEFENDANTS’ MOTION FOR LEAVE TO DESIGNATE ADDITIONAL EXHIBITS – Page 9