Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1320

REPLY to Response to Motion re 1313 Emergency MOTION to Strike THE SUPPLEMENTAL ERRATA SHEET OF ERIC BINA filed by Eolas Technologies Incorporated, The Regents of the University of California. (McKool, Mike)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
Eolas Technologies Incorporated
and The Regents of the University of
California
Plaintiffs,
vs.
Adobe Systems Inc., Amazon.com, Inc.,
Apple Inc., CDW Corp., Citigroup Inc.,
The Go Daddy Group, Inc., Google Inc.,
J.C. Penney Company, Inc., Staples, 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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REPLY IN SUPPORT OF EMERGENCY MOTION TO STRIKE THE
SUPPLEMENTAL ERRATA SHEET OF ERIC BINA

Defendants do not address any of Plaintiffs’ authority which establishes that errata sheets
submitted after the 30 days provided by Rule 30(e) should be stricken. Reed v. Hernandez, 114
F. App’x 609, 611 (5th Cir. 2004) (The Fifth Circuit “does notprovide any exceptions to [Rule
30(e)’s] requirements.”); see also Raytheon Co. v. Flir Sys., Inc., No. 4:07-cv-109, 2009 U.S.
Dist. LEXIS 12558, at *9 (E.D. Tex. Feb. 18, 2009) (striking amended errata sheet filed two
months after 30-day deadline pursuant to Rule 30(e)). Accordingly, Mr. Bina’s supplemental
errata should be stricken.
If, as Defendants assert, Mr. Bina plans to come to trial and testify then Defendants do
not need his belated errata. And, in any event, Mr. Bina should be subject to impeachment and
cross-examination based upon the substance of his sworn deposition testimony—without
alteration by his belated errata. See Raytheon, 2009 U.S. Dist. LEXIS 12558, at *8 (sworn
testimony remains part of the record for cross-examination and impeachment); Reilly v. TXU
Corp., 230 F.R.D. 486, 490 (N.D. Tex. 2005) (same).
Finally, Defendants’ seriously misrepresent the lone out-of-circuit district court case they
cite.

First, the Leeds Court was addressing Rule 37(c) and not the 30-day requirement under

Rule 30(e). Leeds LP v. United States, 2010 U.S. Dist. LEXIS 106022 at *9 (S.D. Cal. 2010).
And, in any event, far from “permitting supplemental errata with substantial changes (including
changing multiple answers from ‘no’ to ‘yes’)” as Defendants suggest, the Leeds Court held:
Although Ms. Ballantyne's errata sheet will not be barred under Rule 37(c), the
Court agrees with Defendant that it may not be offered at trial for the truth of the
matter asserted under FRE 804(b)(1).
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The Government had no such opportunity to question Ms. Ballantyne regarding
changes to her deposition testimony. Thus, because Plaintiff does not contest that
Ms. Ballantyne can be made available and alternatively, because Ms.
Ballantyne's errata declaration was not subject to cross examination, Plaintiff
will not be able to introduce the errata sheet under this hearsay exception. See

United States v. United Techs. Corp., No. 3:99-cv-093, 2004 U.S. Dist. LEXIS
31011, at *6 (S.D. Ohio Oct. 11, 2004) (holding Rule 804(b)(1) inapplicable
where party sought to introduce an untimely errata declaration because the errata
declaration "was never subject to examination by the government").
Leeds LP, 2010 U.S. Dist. LEXIS 106022 at *9. Accordingly, while the Leeds Court declined to
bar the belated errata under Rule 37(c), it nonetheless determined that it could not be offered at
trial “for the truth of the matter asserted.” Id.
For all of the foregoing reasons, Mr. Bina’s supplemental errata must be stricken. If he
comes to trial, Mr. Bina should be subject to impeachment and cross-examination based upon the
substance of his sworn deposition testimony.

DATED: February 3, 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]
Holly Engelmann
Texas State Bar No. 24040865
[e-mail]
J.R. Johnson
Texas State Bar No. 24070000
[e-mail]
MCKOOL SMITH, P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Telephone: [phone]
Telecopier: [phone]
Kevin L. Burgess
Texas State Bar No. 24006927
[e-mail]
Josh W. Budwin
Texas State Bar No. 24050347
[e-mail]
Gretchen K. Curran
Texas State Bar No. 24055979
[e-mail]
Matthew B. Rappaport
Texas State Bar No. 24070472
[e-mail]
MCKOOL SMITH, P.C.
300 West Sixth Street, Suite 1700
Austin, Texas 78701
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
[phone]
[phone]- Facsimile
ATTORNEYS FOR PLAINTIFFS
EOLAS TECHNOLOGIES
INCORPORATED AND THE REGENTS
OF THE UNIVERSITY OF CALIFORNIA

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a). This document was served on all counsel by email on
February 3, 2012.
/s/ Josh Budwin