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)

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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. § § § Civil Action No. 6:09-CV-00446-LED § § § § JURY TRIAL § § § § § § § § § § § § § 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 \McKool 406626v1 1 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. \McKool 406626v1 2 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. \McKool 406626v1 3 Dated: January 8, 2012. MCKOOL SMITH, P.C. /s/ Mike McKool Mike McKool Lead Attorney Texas State Bar No. 13732100 mmckool@mckoolsmith.com Douglas Cawley Texas State Bar No. 04035500 dcawley@mckoolsmith.com Rosemary T. Snider Texas State Bar No. 18796500 rsnider@mckoolsmith.com Thomas G. Fasone III Texas State Bar No. 00785382 tfasone@mckoolsmith.com Holly Engelmann Texas State Bar No. 24040865 hengelmann@mckoolsmith.com Ivan Wang Texas State Bar No. 24042679 iwang@mckoolsmith.com MCKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: (214) 978-4000 Telecopier: (214) 978-4044 Samuel F. Baxter Texas State Bar No. 01938000 sbaxter@mckoolsmith.com MCKOOL SMITH, P.C. 104 E. Houston Street, Suite 300 (P.O. Box 0) Marshall, Texas 75670 Telephone: (903) 923-9000 Telecopier: (903) 923-9099 Voicemail: (903) 923-9095 Kevin L. Burgess Texas State Bar No. 24006927 kburgess@mckoolsmith.com John B. Campbell Texas State Bar No. 24036314 jcampbell@mckoolsmith.com John F. Garvish II Texas State Bar No. 24043681 jgarvish@mckoolsmith.com Josh W. Budwin Texas State Bar No. 24050347 jbudwin@mckoolsmith.com Gretchen K. Curran Texas State Bar No. 24055979 gcurran@mckoolsmith.com \McKool 406626v1 4 Lindsay K. Martin Texas State Bar No. 24049544 lmartin@mckoolsmith.com J.R. Johnson Texas State Bar No. 24070000 jjohnson@mckoolsmith.com Chris Mierzejewski Texas State Bar No. 24070270 cmierzejewski@mckoolsmith.com Matthew B. Rappaport Texas State Bar No. 24070472 mrappaport@mckoolsmith.com James E. Quigley Texas State Bar No. 24075810 jquigley@mckoolsmith.com MCKOOL SMITH, P.C. 300 West Sixth Street, Suite 1700 Austin, Texas 78701 Telephone: (512) 692-8700 Telecopier: (512) 692-8744 Gayle Rosenstein Klein Texas State Bar No. 00797348 gklein@mckoolsmith.com MCKOOL SMITH, P.C. One Bryant Park, 47th Floor New York, NY 10036 Telephone: (212) 402-9400 Telecopier: (212) 402-9444 Robert M. Parker Texas State Bar No. 15498000 rmparker@pbatyler.com Robert Christopher Bunt Texas Bar No. 00787165 rcbunt@pbatyler.com Andrew T. Gorham Texas State Bar No. 24012715 tgorham@pbatyler.com PARKER, BUNT & AINSWORTH, P.C. 100 E. Ferguson, Suite 1114 Tyler, Texas 75702 Telephone: (903) 531-3535 Telecopier: (903) 533-9687 ATTORNEYS FOR PLAINTIFFS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA AND EOLAS TECHNOLOGIES INC. \McKool 406626v1 5 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 \McKool 406626v1 6

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