Case 2:17-cv-00514-JRG Document 174 Filed 02/18/19 Page 1 of 6 PageID #: 15066
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`v.
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`HTC CORPORATION,
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`Defendant.
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`Case No. 2:17-CV-0514-JRG
`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`Case No. 2:17-CV-0515-JRG
`(CONSOLIDATED CASE)
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`JURY TRIAL DEMANDED
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`LG ELECTRONICS INC.,
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`Defendant.
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`§
`§
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`§
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`AGIS SOFTWARE DEVELOPMENT LLC’S OPPOSED
`ADDITIONAL MOTION IN LIMINE NO. 16 FOR THE
`AGIS SOFTWARE DEVELOPMENT LLC V. LG ELECTRONICS INC. TRIAL
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`Plaintiff AGIS Software Development LLC (“AGIS” or “Plaintiff”) hereby submits its
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`Opposed Motion in Limine to prevent Defendant LG Electronics Inc. (“LG” or “Defendant”)
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`from introducing improper evidence and testimony at trial.
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`16. MOTION IN LIMINE TO PRECLUDE LG FROM INTRODUCING LATE-
`DISCLOSED EVIDENCE OR TESTIMONY REGARDING NON-PARTY APPLE
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`LG should not be permitted to call a witness at trial from non-party Apple. This
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`unnamed witness was disclosed for the first time in an amendment to LG’s rebuttal disclosures
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`the day after those disclosures were due. On February 13, 2019, pursuant to the Fourth
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`Amended Docket Control Order (Dkt. 141), the parties served objections to each other’s initial
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`pre-trial disclosures, as well as any rebuttal to those disclosures. One day after that deadline, LG
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`amended those rebuttal disclosures to “identif[y] Apple, Inc., and reserve[] the right to identify a
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`Case 2:17-cv-00514-JRG Document 174 Filed 02/18/19 Page 2 of 6 PageID #: 15067
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`witness from Apple, Inc. who is most knowledgeable on settlement terms with AGIS.” LG’s
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`Amended Rebuttal Pre-Trial Disclosures at 2 (attached hereto as Exhibit A). This “amended”
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`disclosure was not only late pursuant to the terms of the DCO, it was also not based on any new
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`information: AGIS and Apple first filed a motion to stay in this Court on February 8, 2019.
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`AGIS Software Development, LLC v. Huawei USA Inc., et al., Case No. 2:17-cv-0513-JRG (E.D.
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`Tex.) (lead case); AGIS Software Development, LLC v. Apple, Inc., Case No. 2:17-cv-0516-JRG
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`(E.D. Tex.) (member case) at Dkt. 342.
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`Moreover, LG’s attempt to call an Apple witness should be precluded because of the late
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`stage of this litigation. Discovery and the exchange of expert disclosures have already concluded
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`in this matter. Fact discovery closed on December 7, 2018, and LG’s damages expert report was
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`served on January 11, 2019. LG’s damages expert has not opined with respect to any settlement
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`with Apple. LG did not, at any point prior to its February 14, 2019 amendment to its rebuttal
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`disclosures, indicate that it would be calling an Apple witness to testify. It did not include a
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`witness from Apple in any of its Rule 26 disclosures or supplements thereto. This case is only
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`two weeks away from its Final Pre-Trial Conference, and less than two months remain before
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`trial. Trial is not the place for LG to be conducting discovery. To permit LG to introduce new
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`information (for which it has not offered expert testimony) would be highly prejudicial to AGIS.
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`See, e.g., Texas Instruments, Inc. v. Hyundai Electrs. Indus., Co., 50 F. Supp. 2d 619, 628 (E.D.
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`Tex. 1999) (refusing to vacate exclusion of defendant’s supplemental expert report that relied on
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`last-minute disclosure of system and witnesses, where plaintiff had only a few weeks before trial
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`to take depositions of late-disclosed witnesses); see id. at 625 n.13 (“Moreover, because of
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`Hyundai’s late disclosure, Texas Instruments was, once again, forced to sacrifice trial
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`preparation time in order to conduct discovery . . .”). This Court should preclude LG from
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`2
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`Case 2:17-cv-00514-JRG Document 174 Filed 02/18/19 Page 3 of 6 PageID #: 15068
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`offering testimony from Apple, and LG’s expert should be precluded from testifying with respect
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`to any potential settlement with Apple.
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`CONCLUSION
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`For the foregoing reasons, Plaintiff’s Motion in Limine No. 16 should be granted.
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`Dated: February 18, 2019
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`BROWN RUDNICK LLP
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`
`
` /s/ Alfred R. Fabricant
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: afabricant@brownrudnick.com
`Lawrence C. Drucker
`NY Bar No. 2303089
`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
`Timothy J. Rousseau
`NY Bar No. 4698742
`Email: trousseau@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
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`Case 2:17-cv-00514-JRG Document 174 Filed 02/18/19 Page 4 of 6 PageID #: 15069
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`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
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`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
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`Case 2:17-cv-00514-JRG Document 174 Filed 02/18/19 Page 5 of 6 PageID #: 15070
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`CERTIFICATE OF CONFERENCE
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`This is to certify that counsel for Plaintiff AGIS Software Development LLC met and
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`conferred with counsel for Defendant LG Electronics Inc. in compliance with LR CV-7(h) in
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`regards to its Motions in Limine. While LG has not consented to the relief sought in this Motion,
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`AGIS will meet and confer with LG again prior to Final Pre-Trial Conference to attempt to come
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`to an agreement regarding this Motion.
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`/s/ Alfred R. Fabricant
` Alfred R. Fabricant
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`Case 2:17-cv-00514-JRG Document 174 Filed 02/18/19 Page 6 of 6 PageID #: 15071
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on February 18, 2019, all counsel of record who
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`are deemed to have consented to electronic service are being served with a copy of this document
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`via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Alfred R. Fabricant
` Alfred R. Fabricant
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