Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv—00876-GIVIS Document 208 Filed 07/25/2006 Page 1 of 2
MORRIS, NICHOLS, ARSHT & TUNNELL LLP
1201 NORTH MARKET STREET
P.O. Box 1347
WILMINGTON, DELAWARE l9899—l347
302 658 9200
302 658 3989 FAX
.IAcK B. BLUMENFELD
302 351 9291 July 25, 2006
302 425 3012 Fxx
[email protected]
BY ELECTRONIC FILING
The Honorable Gregory M. Sleet
United States District Court
844 North King Street
Wilmington, DE 19801
Re: T elcordia Technologies, Inc. v. Lucent Technologies, C.A. No. 04-875 (GMS)
Telcordia Technologies, Inc. v. Cisco Systems, Inc., C.A. No. O4-876 (GMS)
Dear Judge Sleet:
l am writing in response to Telcordia's letter of yesterday. The Scheduling Order,
as amended, provided that opening expert reports were due from the party having the burden of
proof on an issue on June 28, with answering reports due July 21, and "reply expert reports, if
necessary" due on July 28. The purpose of reply reports was to permit the party that submitted
an opening report to respond to something in the answering report, if necessary. Although
Telcordia had the burden of proof on infringement of the '306 patent, it did not serve an opening
expert report on June 28. In order to make a record on the '306 infringement issues, the
defendants served a noninfringement report on July 21, in accordance with the Scheduling Order.
The Scheduling Order did not contemplate that Telcordia could wait until it had
defendants' expert report to disclose its opinions for the first time on issues where it has the
burden of proof. Just as a plaintiff cannot wait until rebuttal at trial to first offer evidence on its
claims, it also cannot disclose for the first time in a reply report expert opinions in support of
those claims. That would defeat the purpose of the Scheduling Order provision that expert
reports are due first from the party with the burden of proof That party has no right to hold
expert opinions until reply, and a reply report has no place where there was no opening report.
Cf D.Del. LR 7.1.3(c)(2) (A party "shall not reserve material for the reply brief which should
have been included in a full and fair opening brief.").
Respectfully,
/s/ Jock B. Blumenfeld (#1014)
Jack B. Blumenfeld

Case 1 :04-cv—00876-GIVIS Document 208 Filed 07/25/2006 Page 2 of 2
The Honorable Gregory M. Sleet
July 25, 2006
Page 2
JBB/bls
530113
cc: Peter T. Dalleo, Clerk (By Hand)
John G. Day, Esquire (By Hand)
John W. Shaw, Esquire (By Hand)
Donald R. Dunner, Esquire (By Fax)
Steven C. Cherny, Esquire (By Fax)
Edward R. Reines, Esquire (By Fax)