Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1193

RESPONSE in Opposition re 1176 MOTION for Leave to Designate Additional Exhibits filed by Eolas Technologies Incorporated, The Regents of the University of California. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Text of Proposed Order)(McKool, Mike)

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

Eolas Technologies Incorporated,
Plaintiff,
vs.
Adobe Systems Inc., Amazon.com, Inc.,
Apple Inc., Argosy Publishing, Inc.,
Blockbuster Inc., CDW Corp.,
Citigroup Inc., eBay Inc., Frito-Lay, Inc.,
The Go Daddy Group, Inc., Google Inc.,
J.C. Penney Company, Inc., JPMorgan
Chase & Co., New Frontier Media, Inc.,
Office Depot, Inc., Perot Systems Corp.,
Playboy Enterprises International, Inc.,
Rent-A-Center, Inc., Staples, Inc., Sun
Microsystems Inc., Texas Instruments Inc.,
Yahoo! Inc., and YouTube, LLC,
Defendants.

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§ Civil Action No. 6:09-CV-00446-LED
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JURY TRIAL
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RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE TO
DESIGNATE 1,500 ADDITIONAL EXHIBITS (DKT. NO. 1176)
Plaintiffs, The Regents of the University of California and Eolas Technologies Inc., file
this Response in opposition to Defendants’ Motion for Leave to Designate Additional 1,500
Exhibits (Dkt. No. 1176) and would respectfully show the Court as follows:
The Court’s Standing Order Regarding Letter Briefs, dated August 12, 2011, limits each
“side” to designating 250 exhibits. In this case, where there are 10 Defendants, Plaintiffs have
sought leave to designate 400 exhibits—which amounts to 40 exhibits per Defendant. Dkt. No.
1169. Defendants’ motion seeks leave to designate 1,750 exhibits. Defendants represent in their
motion that they are seeking 250 exhibits common to all Defendants1 plus an additional 150

1

Curiously, the joint list served on Plaintiffs by the Defendants on January 6, 2012, after

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exhibits per Defendant,2 for a total of 1,750 exhibits for Defendants’ side.
Eolas opposes the Defendants’ request for two reasons. First, as shown by the email
attached as Exhibit 3, Defendants sought and obtained from Plaintiffs an agreement to move
exhibit exchange deadlines closer to trial and compress the time frame to review and prepare
objections to exhibits. Defendants’ represented that the proximity to trial and the compressed
time period for lodging objections to exhibits would not cause a hardship to Plaintiffs “[g]iven
the Court’s limitation on the amount of material that can be designated.” Ex. 3. Defendants now
seek to entirely remove this limitation just weeks before trial through their request to designate
1,750 exhibits.
Second, Defendants request is entirely unreasonable. If Defendants are granted leave to
increase their designation to 1,750 exhibits, they will have multiplied by seven times the Court’s
limit on the number of exhibits that Plaintiffs must review and to which they must object in a
very short time. Such an increase in exhibits above the amount likely to be used at trial—and the
expense of reviewing and objecting to those exhibits—is the exact harm that the Court’s standing
order was meant to alleviate. See Standing Order at 3. Here, where the Defendants all share one
expert on invalidity, the only issue on which they bear the burden of proof, it is unlikely each
Defendant needs 150 exhibits in excess of the 250 exhibits common to all Defendants that
Defendants seek leave to designate.
Rather than attempt to be reasonable, Defendants have presented to Plaintiffs exhibit lists
that designate numerous exhibits that are irrelevant and inadmissible. As just one example, in
Defendants’ recently exchanged exhibit lists, Yahoo! lists as exhibit number YDX185 an article
Defendants had filed their motion seeking a joint exhibit list of 250, contains 400 joint exhibits
rather than the 250 exhibits requested. See Ex. 1.
2

Defendant Yahoo! did not limit itself to the requested 150; it served an individual list of 193
exhibits. Ex. 2.

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entitled “McKool Hennigan Merger Creates Tech-Savvy Trial Firm,” which has no relevance to
the issues in this case and is obviously objectionable. See Ex. 2. This exhibit also appears as
Exhibit 400 on Defendants’ joint exhibit list. See Ex. 1. As the Standing Order recognizes,
Defendants should be required to limit the number of exhibits so that they will focus on the
admission of exhibits that are relevant and non-objectionable.

Otherwise, Plaintiffs

unreasonably and unnecessarily are required “to go through the expense of reviewing and
objecting” to these exhibits when only a handful of exhibits will be used in front of the jury. See
Standing Order at 3.
As Plaintiffs advised Defendants, Mot. at Ex. 1, Plaintiffs do not oppose Defendants’
obtaining a reasonable increase of the number of designated exhibits. Plaintiffs recognize that
the designation of 250 common exhibits may streamline the Defendants’ presentation of their
invalidity defense, as they have all designated the same expert, but Plaintiffs suggest that an
additional 40 exhibits for designation per Defendant is fully adequate to present their individual
cases. A total of 650 exhibits for Defendants’ side, where Plaintiffs have limited their side to
400 exhibits, is entirely reasonable, given the number of exhibits that will actually be used at
trial.3

3

Defendants also ignored the Court’s Standing Order regarding the limitation of deposition
designations. Defendants have designated over 4,000 pages of deposition testimony for
approximately 66-67 hours of deposition testimony—over 50 hours in excess of the Court’s 10
hour limit. As the Standing Order recognizes, this conduct requires Plaintiffs “to undergo the
expense of reviewing and objecting to the testimony” even though only a few hours will be used
at trial. See Standing Order at 3. Defendants did not, and have not, moved for leave for the
excess designations.

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Dated: January 8, 2012.

MCKOOL SMITH, P.C.
/s/ Mike McKool
Mike McKool
Lead Attorney
Texas State Bar No. 13732100
[e-mail]
Douglas Cawley
Texas State Bar No. 04035500
[e-mail]
Rosemary T. Snider
Texas State Bar No. 18796500
[e-mail]
Thomas G. Fasone III
Texas State Bar No. 00785382
[e-mail]
Holly Engelmann
Texas State Bar No. 24040865
[e-mail]
Ivan Wang
Texas State Bar No. 24042679
[e-mail]
MCKOOL SMITH, P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Telephone: [phone]
Telecopier: [phone]
Samuel F. Baxter
Texas State Bar No. 01938000
[e-mail]
MCKOOL SMITH, P.C.
104 E. Houston Street, Suite 300
(P.O. Box 0)
Marshall, Texas 75670
Telephone: [phone]
Telecopier: [phone]
Voicemail: [phone]
Kevin L. Burgess
Texas State Bar No. 24006927
[e-mail]
John B. Campbell
Texas State Bar No. 24036314
[e-mail]
John F. Garvish II
Texas State Bar No. 24043681
[e-mail]
Josh W. Budwin
Texas State Bar No. 24050347
[e-mail]
Gretchen K. Curran
Texas State Bar No. 24055979
[e-mail]

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Lindsay K. Martin
Texas State Bar No. 24049544
[e-mail]
J.R. Johnson
Texas State Bar No. 24070000
[e-mail]
Chris Mierzejewski
Texas State Bar No. 24070270
[e-mail]
Matthew B. Rappaport
Texas State Bar No. 24070472
[e-mail]
James E. Quigley
Texas State Bar No. 24075810
[e-mail]
MCKOOL SMITH, P.C.
300 West Sixth Street, Suite 1700
Austin, Texas 78701
Telephone: [phone]
Telecopier: [phone]
Gayle Rosenstein Klein
Texas State Bar No. 00797348
[e-mail]
MCKOOL SMITH, P.C.
One Bryant Park, 47th Floor
New York, NY 10036
Telephone: [phone]
Telecopier: [phone]
Robert M. Parker
Texas State Bar No. 15498000
[e-mail]
Robert Christopher Bunt
Texas Bar No. 00787165
[e-mail]
Andrew T. Gorham
Texas State Bar No. 24012715
[e-mail]
PARKER, BUNT & AINSWORTH, P.C.
100 E. Ferguson, Suite 1114
Tyler, Texas 75702
Telephone: [phone]
Telecopier: [phone]
ATTORNEYS FOR PLAINTIFFS THE
REGENTS OF THE UNIVERSITY OF
CALIFORNIA AND EOLAS
TECHNOLOGIES INC.

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a). As such, this document was served on all counsel who
have consented to electronic services on January 8, 2012. Local Rule CV-5(a)(3)(A).

/s/ John Campbell
John Campbell

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