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

Filing 353

Joint MOTION in Limine 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, WI-LAN Inc.. (Attachments: # 1 Text of Proposed Order)(Pai, Ajeet)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
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WI-LAN INC.,
Plaintiff,
v.
ALCATEL-LUCENT USA INC.; et al.
Defendants.

Civil Action No. 6:10-cv-521-LED
JURY TRIAL DEMANDED

AGREED MOTIONS IN LIMINE
Plaintiff Wi-LAN Inc. and 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. have
agreed to the motions in limine as outlined below, and respectfully request that the Court
enter an order granting them:
1.

Reference to Motions in Limine: Any reference or testimony to the fact that

Plaintiff or Defendants filed the instant motions in limine, or that the Court granted or
denied any requested relief, except for references to the instant motions in limine to enforce
compliance with the Court’s previous Orders. FED. R. EVID. 401-403.
2.

Reference to Motions or Prior Rulings by this Court: Unless specifically

authorized, any reference to any motion or brief filed by any party with this Court in this
case, or ruling by this Court on any such motion, including but not limited to any discovery
motion, sanctions motion, or dispositive motion, except for references to such motions or
briefs to enforce compliance with the Court’s previous Orders. FED. R. EVID. 401-403. No
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party is precluded from referencing, for the purposes of impeachment, any affidavits,
declarations, or the like submitted with such motions or briefs.
3.

References to Jury Consultants and/or Shadow Jurors: Any reference to

any party’s use, if any, of jury consultants or jury study or focus groups to assist with trial
preparation, jury selection, or trial. Such use is not relevant to any issue in this litigation.
FED. R. EVID. 401-403.
4.

References to Equitable Issues:

Any reference to equitable defenses,

including laches, unclean hands, equitable estoppel, and waiver, which are properly reserved
for the Court and not the jury. FED. R. EVID. 401-403; see e.g., z4 Techs., Inc. v. Microsoft
Corp., No. 6:06-CV-142 (Davis, J.), 2006 U.S. Dist. LEXIS 58374, at *60 (E.D. Tex. Aug.
18, 2006) (reserving issue of inequitable conduct to be heard outside the presence of the
jury). No party is precluded from referencing facts that may be relevant to such equitable
defenses to the extent they are also relevant to issues before the jury.
5.

References to Arguments that Contradict the Court’s Orders, including

the Court’s Markman Order:

Unless specifically authorized, references to facts or

arguments regarding any motion or brief on behalf of the parties that contradicts any of the
Court’s rulings on any such motion, including the Court’s Markman Order, should be
precluded, with the exception of references to such motions, arguments, or briefs to enforce
compliance with the Court’s previous Orders.

FED. R. EVID. 401-403.

No party is

precluded from referencing, for the purposes of impeachment, any affidavits, declarations,
or the like submitted with such motions or briefs.

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6.

Derogatory Terms:

Any references of either party using the derogatory

terms “patent troll” and “lawsuit mill.”. Such statements would tend to confuse the jury, are
irrelevant to the substantive issues, and be unfairly prejudicial. FED. R. EVID. 402, 403.
7.

Reference to Acquisition of BelAir: Any reference, comment or statement

by counsel, or by any witness, regarding LME’s acquisition of BelAir Networks Inc., any
claim or defense of license as a result of that acquisition, or the co-pending arbitration
proceedings regarding that matter. The Ericsson Defendants and Wi-LAN dispute whether
Ericsson obtained a license to the patents-in-suit as a result of its acquisition of BelAir
Networks Inc., a question committed to mandatory, binding arbitration in another forum.
Because such issues are not before this jury, such evidence would both be irrelevant and
unfairly prejudicial. FED. R. EVID. 401–403.
8.

References to Law Firms or Lawyers Representing Any Party:

With

respect to any law firm representing any party in this lawsuit, any reference or testimony
about the size of the law firm, other matters handled by the law firm or any of its lawyers,
any disciplinary action or investigation into the law firm or lawyer representing any party,
and the wealth of any attorney or law firm. FED. R. EVID. 401-403.
9.

Reference to Jury Instructions and Verdict Form: Any reference to the

instructions and verdict form ultimately submitted to the jury as Plaintiffs’ or Defendants’.
FED. R. EVID. 401-403. The parties may refer to such instructions and verdict form as the
Court’s instructions and the Court’s verdict form.
10.

Reference to Fee Arrangements: Any reference to the fee arrangements

between the parties and their attorneys or the attorneys’ fees paid by the parties to their

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attorneys in the instant lawsuit, excepting any fee arrangements with or fees paid to expert
or consulting witnesses, which are not before the jury. FED. R. EVID. 401-403
11.

Objections to Discovery: To the extent previously resolved by the Court,

objections made by any party to deposition notices, interrogatories, interrogatory answers,
and deposition questions and testimony, except for references to objections to enforce
compliance with the Court’s previous Orders, which the Court will rule on separately; the
parties do not waive these objections but rather agree that the objections shall be maintained
for the Court and need not be argued in front of the jury.
12.

References to Clear and Convincing Standard of Proof in Texas Family

Code: Any reference, comment, or statement by counsel, or by any witness called to testify,
regarding the “clear and convincing” standard of proof contained in the Texas Family Code.
FED. R. EVID. 401-403.
13.

References to Foreign Business Entities:

Any reference, comment, or

statement by counsel, or by any witness called to testify, describing the “ethnicity” of the
parties or their lawyers or any negative connotations based on a party being a foreign entity,
including that the entity is, for example “Canadian” or “Taiwanese.” Such statements would
be irrelevant to the substantive issues, are inflammatory, are improper, would tend to
confuse the jury, and are more prejudicial than probative. This motion shall not prohibit
references that any party has, for example, an office or employees located outside of the
United States. FED. R. EVID. 401-403.

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Dated: March 11, 2013

Respectfully submitted,

/s/ Akshay S. Deoras (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/ Ajeet P. Pai
David B. Weaver (TX Bar No. 00798576)
Lead Attorney
Avelyn M. Ross (TX Bar No. 24027817)
Ajeet P. Pai (TX Bar No. 24060376)
Syed K. Fareed (TX Bar No. 24065216)
Jeffrey T. Han (TX Bar No. 24069870)
Janice Ta (TX Bar No. 24075138)
Seth A. Lindner (TX Bar No. 24078862)
VINSON & ELKINS LLP
2801 Via Fortuna, Suite 100
Austin, TX 78746
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[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]

Constance S. Huttner
(NY Bar No. 1722024)
VINSON & ELKINS LLP
666 5th Avenue, 26th Floor
New York, NY 10103-0040
Tel: [phone]
Fax: (9l7) 849-5339
[e-mail]

Attorneys for Defendant Alcatel-Lucent
USA Inc.

/s/ Martin R. Bader (with permission)
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]

Steve R. Borgman (TX Bar No. 02670300)
Gwendolyn J. Samora
(TX Bar No. 00784899)
VINSON &ELKINS LLP
1001 Fannin Street, Suite 2500
Houston, TX 77002-6760
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Local Counsel
Johnny Ward (TX Bar No. 00794818)
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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]

Wesley Hill (TX Bar No. 24032294)
Claire Abernathy Henry
(TX Bar No. 24053063)
WARD & SMITH LAW FIRM
P.O. Box 1231
1127 Judson Rd., Ste. 220
Longview, TX 75606-1231
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
claire@wsfirmcom

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

Attorneys for Plaintiff, Wi-LAN Inc.

/s/ Adrienne Dominguez (with permission)
Bruce S. Sostek (TX Bar 18855700)
Lead Attorney
Richard L. Wynne, Jr. (TX Bar 24003214)
Adrienne E. Dominguez (TX Bar 00793630)
J. Michael Heinlen (TX Bar 24032287)
Timothy E. Hudson (TX Bar 24046120)
Justin S. Cohen (TX Bar 24078356)
THOMPSON & KNIGHT LLP
1722 Routh Street, Suite 1500
Dallas, TX 75201
Tel: [phone]
Fax: [phone]
[e-mail]
Local Counsel
William J. Cornelius (TX Bar 04834700)
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]
[e-mail]
Attorneys for Defendants Ericsson Inc.,
Telefonaktiebolaget LM Ericsson, Sony
Mobile Communications (USA) Inc., and
Sony Mobile Communications AB
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CERTIFICATE OF CONFERENCE
The undersigned certifies that Plaintiff Wi-LAN, Inc. has complied with the requirements
of Local Rule CV-7(h), and no party opposes the relief sought herein.
Ajeet P. Pai
Ajeet P. Pai

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 are
deemed to have consented to electronic service on March 11, 2013.

Ajeet P. Pai
Ajeet P. Pai

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