WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al

Filing 295

RESPONSE in Opposition re 288 MOTION to Strike 277 MOTION for Leave to File Two Letter Briefs Requesting Permission to File Certain Motions and Request to Strike Defendants Letter Briefs filed under Dkt. 280 and 287 MOTION to Strike 277 MOTION for Leave to File Two Letter Briefs Requesting Permission to File Certain Motions and Request to Strike Defendants Letter Briefs filed under Dkt. 280 and 287 filed by Alcatel-Lucent USA Inc., Ericsson Inc., Exedea INC., HTC America, Inc., HTC Corporation, Sony Mobile Communications (USA) Inc., Sony Mobile Communications AB, Telefonaktiebolaget LM Ericsson. (Attachments: # 1 Text of Proposed Order)(Findlay, Eric)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
TYLER DIVISION

WI-LAN, INC.
Plaintiff,
v.
ALCATEL-LUCENT USA INC.;
TELEFONAKTIEBOLAGET LM
ERICSSON; ERICSSON INC.;
SONY MOBILE COMMUNICATIONS
AB;
SONY MOBILE COMMUNICATIONS
(USA) INS.; HTC CORPORATION;
HTC AMERICA, INC.; EXEDEA INC.;
Defendants.
______________________________________

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Civil Action No. 6:10-cv-521 -LED

JURY TRIAL REQUESTED

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF WI-LAN’S MOTION TO
STRIKE DEFENDANTS’ LETTER BRIEFS (DKT. NO. 288)

NOW COME, Defendants Alcatel-Lucent USA Inc., Telefonaktiebolaget LM Ericsson,
Ericsson Inc., Sony Mobile Communications AB, Sony Mobile Communications (USA) Inc., HTC
Corporation, HTC America, Inc., and Exedea, Inc. (collectively “Defendants”) and hereby file this
Response in Opposition to Plaintiff Wi-LAN’s Motion to Strike Defendants’ Letter Briefs (Dkt. No.
288) and would hereby show the Court as follows:1

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In order to try and bring resolution to these issues as soon as possible and to inconvience the Court as little as possible,
Defendants file this response early under Local Rule CV-7(e) and do not believe that any further briefing on Plaintiff’s
Motion (Dkt. No. 288) is warranted.

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First, Plaintiff’s Motion to Strike was wholly uncessary and improper.

Contrary to

Plaintiff’s representation, Plaintiff never conferred with Defendants on the Motion, in violation of
L.R. CV-7(h). Had Plaintiff done so, its sole purported basis for the Motion, i.e., the concern that it
not be compelled to respond to Defendants’ Letter Briefs (Dkt. Nos. 280 & 287) until such time as
the Court ruled upon Defendants’ Motion For Leave to File Two Letter Briefs Requesting
Permission to File Certain Motions (Dkt. No. 277), would have been allayed. Defendants did not
and do not expect Plaintiff to respond to the Letter Briefs until the Court’s ruling on their Motion
(Dkt. No. 277).
Second, Plaintiff’s protest (Dtk. No. 288 at p. 1, ¶ 1) that the Letter Briefs were filed in
violation of L.R. CV-7(k) is without merit. Defendants’ Motion for Leave sought leave to extend
the deadline for summary judgment and to file the Letter Briefs by their respective certain dates due
to the ongoing discovery and depositions that impacted the subject matter of the briefing. Plaintiff
admits in its Motion to Strike that it received the Briefs via the Court’s CM/ECF filing system at
Dkt. Nos. 280, 287 (Dkt. No. 288 at 1).
Finally, and perhaps most importantly, Defendants’ Motion for Leave, the responsive
briefing associated with it, and Plaintiff’s Motion to Strike and this Response, could have been
entirely avoided had Plaintiff simply worked in good faith with Defendants to come to an agreement
on a reasonable timeline, with leave of Court, to allow for the filing of the Defendants’ two Letter
Briefs, as well as any possible letter briefs that Plaintiff sought to file. Instead, Plaintiff wholly
refused to cooperate with Defendants in favor of its litigation -by- “gotcha” tactic.
In the light of Defendants’ previously-filed Motion for Leave (Dkt. No. 277), Reply in
support thereof (Dkt. No. 289), as well as this Response in Opposition, Defendants respectfully
request that the Court deny Plaintiff’s Motion to Strike.

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Dated: January 15, 2013

Respectfully submitted,

/s/ (with permission)
Gregory S. Arovas (pro hac vice)
Robert A. Appleby (pro hac vice)
Akshay S. Deoras (pro hac vice)
Jeanne M. Heffernan (pro hac vice)
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, NY 10022
Tel: [phone]
Fax: [phone]
[e-mail]

By: /s/ Eric H. Findlay
Stephen S. Korniczky (pro hac vice)
Martin R. Bader (pro hac vice)
Daniel N. Yannuzzi (pro hac vice)
Lee Hsu (pro hac vice)
Graham M. Buccigross (pro hac vice)
SHEPPARD MULLIN RICHTER &
HAMPTON LLP
12275 El Camino Real, Suite 200
San Diego, CA 92130
Tel: [phone]
Fax: [phone]
[e-mail]

Local Counsel
Michael E. Jones (TX Bar No. 10929400)
Allen F. Gardner (TX Bar No. 24043679)
John F. Bufe (TX Bar No. 03316930)
POTTER MINTON PC
110 N. College, Suite 500
P.O. Box 359
Tyler, TX 75710-0359
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Local Counsel
Eric Hugh Findlay (TX Bar No.
00789886)
Brian Craft (TX Bar No. 04972020)
FINDLAY CRAFT
6760 Old Jacksonville Hwy, Suite 101
Tyler, TX 75703
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Attorneys for Defendant Alcatel-Lucent
USA Inc.

Attorneys for Defendants HTC
Corporation, HTC America Inc., and
Exeda Inc.

/s/ (with permission)
Bruce S. Sostek (TX Bar 18855700)
Lead Attorney
Richard L. Wynne, Jr. (TX Bar 24003214)
THOMPSON KNIGHT LLP
1722 Routh Street, Suite 1500
Dallas, TX 75201
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Local Counsel
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Jennifer Ainsworth (TX Bar 00784720)
Wilson Robertson & Cornelius PC
909 ESE Loop 323, Suite 400
P.O. Box 7339
Tyler, TX 75711-7339
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for Defendants Ericsson Inc.,
Telefonaktiebolaget LM Ericsson, Sony
Mobile Communications (USA) Inc., and
Sony Mobile Communications AB

CERTIFICATE OF SERVICE
The undersigned certifies that on January 15, 2013, the foregoing document was filed
electronically in compliance with Local Rule CV-5(a)(3). As such, this document was served on all
counsel who are deemed to have consented to electronic service.

/s/ Eric H. Findlay
Eric H. Findlay

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