Free Motion to Strike - District Court of Delaware - Delaware

Case 1:04-cv-01231-SLR

Document 128

Filed 01/03/2006

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ____________________________________ VERSUS TECHNOLOGY, INC., ) ) Plaintiff, ) ) v. ) ) RADIANSE, INC., ) ) Defendant. ) ____________________________________)

Civil Action No. 04-1231 (SLR)

VERSUS'S MOTION TO STRIKE AND PRECLUDE THE AFFIDAVIT AND UNPRODUCED DOCUMENTS FILED WITH RADIANSE'S REPLY BRIEF Plaintiff Versus Technology, Inc. ("Versus") moves the Court to strike the affidavit of Nathaniel Sims ("Sims Affidavit") (D.I. 127) filed with Radianse Inc.'s ("Radianse") Reply brief (D.I. 126) in support of its motion for summary judgment (D.I. 117). Versus also moves the Court to strike, and preclude from use at trial, the un-produced documents attached to the Sims Affidavit. Contrary to Local Rule 7.1.3(c)(2), the Sims Affidavit (D.I. 127) was not filed, served or otherwise attached to the opening brief (D.I. 118) filed by Radianse in support of its motion for summary judgment (D.I. 117). Additionally, none of the documents included as "Exhibit A" to the Sims Affidavit (D.I. 127) were ever produced during discovery or otherwise served or filed by Radianse prior to the filing of the Sims Affidavit (D.I. 127). Finally, the "Exhibit A" documents are not properly authenticated, as required by Rule 56(e) of the Federal Rules of Civil Procedure. As with the two unauthenticated documents attached to Dr. Sims' earlier filed expert report (D.I. 121, Ex. C), Dr. Sims fails to provide any personal knowledge to authenticate the newly

Case 1:04-cv-01231-SLR

Document 128

Filed 01/03/2006

Page 2 of 3

filed documents. These documents are therefore insufficient to support Radianse's motion. Medico v. Time, Inc., 643 F.2d 134, 135 (3rd Cir. 1981) (denying summary judgment where "the affidavit [movant] had advanced to authenticate the documents was not based on the personal knowledge of the affiant, as required by Rule 56(e).") In fact neither Radianse nor Dr. Sims make any effort to authenticate the documents filed with either the Sims Affidavit (D.I. 127. Ex. A) or those with Dr. Sims' earlier filed expert report (D.I. 121, Ex. C). Because the Sims Affidavit and accompanying documents are untimely under Local Rule 7.1.3(c)(2) and insufficient evidence for summary judgment under Fed. R. Civ. P. 56(e), Versus respectfully requests that the Sims Affidavit and "Exhibit A" documents be stricken from the record and that Radianse be precluded from using these and all other un-produced documents at trial.
Respectfully Submitted, DATED: January 3, 2006 /s/ James M. Lennon George Pazuniak (DE #478) James M. Lennon (DE #4570) CONNOLLY, BOVE, LODGE & HUTZ, LLP 1007 North Orange Street P.O. Box 2207 Wilmington, DE 19899 Telephone: (302) 658-9141 Attorneys for Plaintiff Versus Technology, Inc.

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Case 1:04-cv-01231-SLR

Document 128

Filed 01/03/2006

Page 3 of 3

UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE CERTIFICATE OF SERVICE I hereby certify that on January 3, 2005, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF which will send electronic notification of such filing to the following, who is also SERVED BY HAND on this date: Josy W. Ingersoll (#1088) [email protected] YOUNG CONAWAY STARGATT & TAYLOR LLP The Brandywine Building 1000 West Street, 17th Floor P.O. Box 391 Wilmington, DE 19899-0391 (302) 571-6600 Counsel for Defendant, Radianse, Inc. I hereby certify that on this date, I mailed the documents to the following non-registered participants: Sibley P. Reppert LAHIVE & COCKFIELD 28 State Street Boston, MA 02109-1784 (617) 227-7400 Co-Counsel for Defendant, Radianse, Inc.

DATE: January 3, 2005

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/s/ James M. Lennon James M. Lennon (#4570) CONNOLLY BOVE LODGE & HUTZ, LLP The Nemours Building 1007 North Orange Street P.O. Box 2207 Wilmington, DE 19899 (302) 888-6271 Attorneys for Plaintiff, Versus Technology, Inc.