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Case 2:17-cv-00514-JRG Document 213 Filed 02/21/19 Page 1 of 7 PageID #: 18311
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`HTC CORPORATION,
`
`
`Defendant.
`
`LG ELECTRONICS INC.,
`
`
`Defendant.
`
`
`Case No. 2:17-CV-0514-JRG
`(LEAD CASE)
`
`JURY TRIAL DEMANDED
`
`
`
`
`Case No. 2:17-CV-0515-JRG
`(CONSOLIDATED CASE)
`
`JURY TRIAL DEMANDED
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`§
`§
`§
`§
`
`
`
`
`
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S REPLY RE
`OPPOSED MOTION TO STRIKE PORTIONS OF THE JANUARY 11, 2019
`EXPERT REPORT OF EDWARD R. TITTEL (DKT. 110)
`
`
`
`

`

`Case 2:17-cv-00514-JRG Document 213 Filed 02/21/19 Page 2 of 7 PageID #: 18312
`
`
`
`Plaintiff AGIS Software Development LLC (“AGIS”), by and through its undersigned
`
`counsel, hereby submits this Reply in support of its Opposed Motion to Strike Portions of the
`
`January 11, 2019 Expert Report of Edward R. Tittel (“Tittel Report”) (Dkt. 110).
`
`I.
`
`
`
`LG FAILED TO PRODUCE SOURCE CODE DOCUMENTS IN ITS
`POSSESSION SINCE NOVEMBER 2018
`
`With respect to the non-produced source code printouts, LG appears to argue that it did
`
`not violate the Court’s Discovery Order because it did not receive the physical documents
`
`corresponding to the source code printouts in question. Dkt. 150 at Footnote 3.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`LG attempts to sandbag AGIS by including late-produced Google source code files in its
`
`expert report. LG does not dispute that it failed to seek leave to produce late discovery. LG does
`
`
`
`

`

`Case 2:17-cv-00514-JRG Document 213 Filed 02/21/19 Page 3 of 7 PageID #: 18313
`
`not dispute that the non-produced source code printouts were relied on by Dr. Tittel in his report
`
`and were not produced to AGIS until the day after this Motion was filed.
`
`
`
`LG provides no justification for withholding relevant source code printouts in its
`
`possession since mid-November until service of its rebuttal expert report––about a month after
`
`the close of fact discovery and receipt of AGIS’s opening expert report. LG cannot dispute that
`
`AGIS would have no way of obtaining the files without seeking additional review of Google’s
`
`source code review machine.
`
`
`
`
`
`
`
`new source code produced by Google, the real party in interest in this case, after the close of fact
`
`discovery and after the service of AGIS’s opening expert report serves only to highlight the
`
` The fact that AGIS returned to review
`
`apparent gamesmanship.
`
`II.
`
`IT IS UNDISPUTED THAT
`
`
`
`
`
`
`
`
`
`LG does not dispute that it failed to disclose
`
`
`
`Accordingly, the exclusion of their contributions to the Tittel Report should be automatic and
`
`mandatory under Rule 37(c)(1). LG provides no explanation for its failure to identify either
`
`witness. The prejudice to AGIS is substantial.
`
`
`
`
`
` With pre-trial conferences less than two weeks away and a trial
`
`almost a month away, there is no real possibility of a continuance at this late stage of the case.
`
`2
`
`

`

`Case 2:17-cv-00514-JRG Document 213 Filed 02/21/19 Page 4 of 7 PageID #: 18314
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`
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`
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`Exclusion of the testimony will not cause significant hardship to LG as it would merely dispose
`
`of a summary judgment motion and LG should be able to rely on other evidence.
`
`III. CONCLUSION
`
`
`
`For the foregoing reasons, AGIS respectfully requests that the Court grant AGIS’s
`
`motion to strike portions of the January 11, 2019 Tittel Report based on the
`
`
`
`Dated: February ___, 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
`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
`
`3
`
`

`

`Case 2:17-cv-00514-JRG Document 213 Filed 02/21/19 Page 5 of 7 PageID #: 18315
`
`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
`
`
`4
`
`

`

`Case 2:17-cv-00514-JRG Document 213 Filed 02/21/19 Page 6 of 7 PageID #: 18316
`
`
`
`CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL
`
`The undersigned certifies that the foregoing document is authorized to be filed under seal
`
`pursuant to the Protective Order entered in this case.
`
`/s/ Alfred R. Fabricant
` Alfred R. Fabricant
`
`
`
`
`
`
`
`

`

`Case 2:17-cv-00514-JRG Document 213 Filed 02/21/19 Page 7 of 7 PageID #: 18317
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that, on February __, 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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