`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`HUAWEI DEVICE USA INC. ET AL.,
`
`
`Defendants.
`
`
`Case No. 2:17-CV-0513-JRG
`(LEAD CASE)
`
`JURY TRIAL DEMANDED
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`APPLE, INC.,
`
`
`Defendant.
`
`§
`§
`§
`§
`
`
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S RESPONSE IN
`OPPOSITION TO APPLE INC.’S OPPOSED MOTION
`FOR LEAVE TO FILE MOTION TO STRIKE
`DECLARATION OF JOSEPH MCALEXANDER SUBMITTED WITH
`SUMMARY JUDGMENT BRIEFING (DKT. 310)
`
`
`
`Case No. 2:17-CV-0516-JRG
`(CONSOLIDATED CASE)
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`Case 2:17-cv-00513-JRG Document 337 Filed 02/01/19 Page 2 of 4 PageID #: 20585
`
`Plaintiff AGIS Software Development LLC (“AGIS”) hereby submits its Response in
`
`Opposition to Apple Inc.’s (“Apple”) Opposed Motion for Leave to File Motion to Strike Expert
`
`Declaration of Joseph McAlexander Submitted with Summary Judgment Briefing (Dkt. 310).
`
`Apple’s motion for leave to file this motion to strike Mr. McAlexander’s declaration
`
`should be denied because the declaration properly addresses points made and inaccuracies of
`
`Apple’s motion for summary judgment and because any additional information contained in that
`
`declaration is harmless and causes no prejudice to Apple. Mr. McAlexander’s declaration is not
`
`an untimely expert report; it does not contain any new materials, test methodologies, opinions or
`
`changed conclusions. Moreover, Apple has already had an opportunity to respond to that
`
`declaration in its reply papers in support of its motion for summary judgment, and will have an
`
`opportunity to question Mr. McAlexander at trial. Regardless of how the McAlexander
`
`declaration is ultimately characterized, Apple has suffered no prejudice and cannot articulate any
`
`beyond mere conclusory assertions of prejudice.
`
`Even if Mr. McAlexander’s declaration is found to contain statements that are considered
`
`to be rebuttal to the opinions of Apple’s infringement expert, Paul Clark, because
`
`Mr. McAlexander reaches no new conclusions and provides no new substantive opinions, such
`
`statements are harmless to Apple and Apple has suffered no prejudice.
`
`Accordingly, AGIS respectfully requests that the Court deny Apple’s motion for leave to
`
`file a motion to strike the declaration of Mr. Joseph McAlexander.
`
`Dated: February 1, 2019
`
`
`
`
`
`
`
`
`BROWN RUDNICK LLP
`
` /s/ Alfred R. Fabricant
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: afabricant@brownrudnick.com
`Lawrence C. Drucker
`NY Bar No. 2303089
`
`
`
`
`
`Case 2:17-cv-00513-JRG Document 337 Filed 02/01/19 Page 3 of 4 PageID #: 20586
`
`Email: ldrucker@brownrudnick.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@brownrudnick.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@brownrudnick.com
`Alessandra C. Messing
`NY Bar No. 5040019
`Email: amessing@brownrudnick.com
`Shahar Harel
`NY Bar No. 4573192
`Email: sharel@brownrudnick.com
`John A. Rubino
`NY Bar No. 5020797
`Email: jrubino@brownrudnick.com
`Enrique W. Iturralde
`NY Bar No. 5526280
`Email: eiturralde@brownrudnick.com
`Daniel J. Shea, Jr.
`NY Bar No. 5430558
`Email: dshea@brownrudnick.com
`Justine Minseon Park
`NY Bar No. 5604483
`Email: apark@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
`
`Samuel F. Baxter
`Texas State Bar No. 01938000
`Email: sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`Texas State Bar No. 24012906
`Email: jtruelove@mckoolsmith.com
`McKOOL SMITH, P.C.
`104 East Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: 903-923-9000
`Facsimile: 903-923-9099
`
`ATTORNEYS FOR PLAINTIFF, AGIS
`SOFTWARE DEVELOPMENT LLC
`
`
`2
`
`
`
`Case 2:17-cv-00513-JRG Document 337 Filed 02/01/19 Page 4 of 4 PageID #: 20587
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that, on February 1, 2019, all counsel of record who are
`
`deemed to have consented to electronic service are being served with a copy of this document via
`
`the Court’s CM/ECF system per Local Rule CV-5(a)(3).
`
`
`
`
`
`/s/ Alfred R. Fabricant
` Alfred R. Fabricant
`
`
`
`
`
`
`
`
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