Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1 :04-cv-01231-SLR Document 132 Filed O1/23/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT _
FOR THE DISTRICT OF DELAWARE
VERSUS TECHNOLOGY, INC., )
Plaintiff g
v. ) Civil Action No. 04-1231 (SLR)
RADIANSE, INC. i
Defendant. i
RADIANSE. INC.’S OPPOSITION TO VERSUS TECHNOLOGY, INC.’S
MOTION TO STRIKE AND PRECLUDE THE AFFIDAVIT AND
UNPRODUCED DOCUMENTS FILED WITH RADIANSE’S REPLY BRIEF
Radianse, Inc. ("Radianse") opposes Versus’ Motion on the following grounds:
l. The documents attached as Exhibit A to Dr. Sims’ Affidavit were provided in that
Affidavit in response to Versus’ assertion, in its Opposition to Radianse’s Motion for Summary
Judgment, challenging Dr. Sims’ statement in his Report that his invention and that of James
Welch predated the filing date of the ‘79l patent.
2. The documents attached to Dr. Sims’ Affidavit as Exhibit A come iiom the files
of Dr. Sims, and were never in the custody or control of Radianse. Consequently, they did not U
fall within the scope of Versus’ document production requests to Radianse.
3. Versus failed to take the deposition of Dr. Sims during the time period scheduled
by this Court for expert depositions.
4, In an effort to provide Versus with an opportunity to take Dr. Sims’ deposition
notwithstanding such failure, Radianse has agreed to produce Dr. Sims for his deposition, which
will be taken by Versus on January 24, 2006, in advance of the scheduled hearing on Radianse’s I
Motion for Summary Judgment. At that deposition, Versus will have an adequate opportunity to
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Case 1 :04-cv-01231-SLR Document 132 Filed O1/23/2006 Page 2 of 3
inquire regarding the documents attached to Dr. Sims’ Affidavit as Exhibit A, as well as the
documents referred to in Dr. Sims’ Report that also have been challenged by Versus in its
pleadings. In its deposition of Dr. Sims, Versus can inquire regarding the authenticity of the
documents in question, thus rendering moot its current objection.
5. Dr. Sims has adequately authenticated the documents attached as Exhibit A in his
Affidavit.
For the reasons set forth above, Radianse respectfully requests that this Court deny
Versus’ Motion to Strike.
Respectfully submitted,
RADIANSE, 1N C.
By its attorneys,
X fx) A
Josyl W. Ingersoll (#1088)
Karen E. Keller (#4489)
YOUNG CONAWAY STARGATT &
TAYLOR, LLP
The Brandywine Building
1000 West Street, 17th Floor
P. O. Box 391 .
Wilmington, Delaware 19899-0391
(302) 571-6672
OF COUNSEL:
Sibley P. Reppert
William A. Scofield, Jr.
LAHIVE & COCKFIELD
28 State Street
Boston, MA 02109-1784
(617) 227-7400
Dated: January 23, 2006
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Case 1 :04-cv-01231-SLR Document 132 Filed O1/23/2006 Page 3 of 3
CERTIFICATE OF SERVICE
I, Karen E. Keller, Esquire hereby certify that on January 23, 2006, I caused to be
electronically filed a true and correct copy of the foregoing document with the Clerk of the Court
using CM/ECP, which will send notification that such filing is available for viewing and
downloading to the following counsel of record:
George Pazuniak, Esquire
Connolly Bove Lodge & Hutz LLP
The Nemours Building
1007 N. Orange Street
Wilmington, DE 19801
I further certify that on January 23, 2006, I caused a copy of the foregoing document to
be served by hand delivery on the above-listed counsel of record.
YOUNG CONAWAY STARGATT & TAYLOR, LLP
/ t f, /7
/7Qri¢
Josy W. Ingersoll (No. 1088)
Karen E. Keller (No. 4489)
The Brandywine Building `
1000 West Street, 17th Floor
Wilmington, Delaware 19801
(302) 571-6600
[email protected]
Attorneys for Radianse, Inc.
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