IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ARTHROCARE CORPORATION, )
Plaintiff} g
) C.A. No. 07—729—SLR
V- )
)
GYRUS MEDICAL, INC., GYRUS ENT, L.L.C., ) JURY TRIAL DEMANDED
p and GYRUS ACMI, INC., )
, Defendants. . T _:.. W g ..
DEFENDAN’l`S' RESPONSE TO JUNE 30, 2008 ORDER
Defendants inform the Court that they do not intend to present witnesses at the July 17,
2008 evidentiary hearing for the following reasons:
I. Defenclants' management personnel who participated in meetings with Weil
Gotshal, Messrs. Roy Davis and Simon Shaw (see, e.g., Exhibit l to the Opening Brief in
I Support ofthe Motion to Disqualify), are no longer in the employ of defendants due to the
Olympus acquisition, and are thus not avaliable to testiiy and cannot be compelied to attend the
i hearing.
W 2. Olympus empioyees have relevant information, including that defendants accused
products and technology were discussed with members ofthe New York City office of the Weil
Gotshai firm, but revealing the substance of those discussions may be construed as a waiver of
the attorney—client privilege as to all Olympus/Weil Gotshal conrrnunications regarding the
_ Gyrus acquisition, which privilege Olympus is not willing to waive at this time. Further, Weil
I Gotshal had asked Olympus to waive the attomey—c1ient privilege as to Weil Gotshal's
communications with Olympus to defend against the motion, but Olympus denied that request.
See Exhibits 9 and 10 to the Reply Brief in Support of the Motion to Disquaiiiy. Defendants
Case 1 :07-cv—00729-SLR Document 57 Filed 07/10/2008 Page 2 of 3
believe that it would be unfair for defendants to use the communications as a "sword," when
Weil Gotshal was precluded from using the communications as a "shield."
The June 30, 2008 Order states that defendants Motion to Disqualify (D.I. 14) "shall be
denied without further order" if defendants decide to not present witnesses at the 3'uly l7, 2008
A hearing. Defendants respectfully submit, however, that additional evidence is not necessary for
y defendants to prevail on the motion. Defendants stand on the evidence presented with their
l briefs that establishes that; (a) there is a conflict between Weil Gotshal's concurrent . . .
A representations of (1) Olympus in the Gyrus acquisition and subsequent related activities and (2)
l ArthroCare in this litigation; and (la) infomation relevant to this case was disclosed to Weil
Gotshal in its representation of Olympus.
Respectfully submitted,
POTTER ANDERSON & CORROON LLP
or coonset.;
By: /s/ David E. Moore
Darle M. Short Richard L. Horwitz (#2246)
Thomas J. Pardini David E. Moore (#3983)
Daniel A. Tanner IH- Hercules Plaza, 6m Floor
Daniel M. Schneider I I3 N. Market Street
I Peter T. Ewald Wilmington, DE 19899
OLIFF & BERRIDGE, PLC Tel: (302) 984-6000
277 S. Washington Street, Suite 500 [email protected]
- Alexandria, VA 22314 dmoore{Q},_p0tteranderson.com
Tel: (703) 836-6400 -
Attorneys for Defendants
Dated: July I0, 2008 Gyms Medical Inc., Gyms ENT, L.L.C.,
$7353282487 and Gyrus ACML Inc.
I 2
J Case 1 :07-cv—00729-SLR Document 57 Filed 07/10/2008 Page 3 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CERTIFICATE OF SERVICE
I, David E. Moore, hereby certify that on July 10, 2008, the attached document was
electronically tiled with the Clerk ofthe Court using CM/ECP which will send notiiication to the
registered attorney(s) of record that the document has been filed and is available for viewing and
-. g . .'.i y , downloading. _ -
I further certify that on July l0, 2008, the attached document was Electronically Mailed
to the following person(s):
Jack B. Blumenfeld Jared Bobrow
Karen Jacobs Louden Paula B. Whitten
A Morris Nichols Arsht & Tunnel} LLP Weil, Gotshal & Manges LLP
l20l North Market Street 201 Redwood Shores Parkway
P.O. Box I347 Redwood Shores, CA 94065
. Wilmington, DE l9899 jared.bobrow{@weil.corn
.`lBluruenfeid@l\#INAT.com [email protected]
l
Weil, Gotshal & Manges LLP Kevin Kudiac
767 Fifth Avenue Weil, Gotshal & Manges LLP
New York, NY 10153 8911 Capital of Texas Highway, Suite 1350
[email protected] Austin, TX 78759
; [email protected]
Q . [email protected]
/.9/ David E. Moore _
J Richard L. Horwitz
David E. Moore
Potter Anderson & Corroon LLP
Hercules Plaza ···~ Sixth Floor
1313 North Market Street
Wilmington, DE 1980l
_ (302) 984-6000
2 [email protected]
Q [email protected]
840224 / 32487
Case 1:07-cv-00729-SLR
Document 57
Filed 07/10/2008
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Case 1:07-cv-00729-SLR
Document 57
Filed 07/10/2008
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Case 1:07-cv-00729-SLR
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