Free Statement - District Court of Delaware - Delaware

Case 1 :07-cv—00729-SLR Document 54 Filed 06/27/2008 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ARTHROCARE CORPORATION, )
)
Plaintiff, )
) C.A. No. O'/—729—SLR
V- )
)
GYRUS MEDICAL, INC., GYRUS ENT, L.L.C., ) JURY TRIAL DEMANDED
and GYRUS ACM}, INC., )
)
Defendants. _ . _,__ ,_,- ) ..
GYRUS'S REPLY TO ARTHROCARE CORPORATION’S RESPONSE
TO DEFENDANTS' "NOTIFICATION" REGARDING THE COUR’I"S
JUNE 11, 2008 ORDER AND REQUEST TO CANCEL THE JULY 17, 2008 HEARING
Gyrus submits this brief reply to address a few statements in ArthroCare's response,
including an incorrect statement.
First, the response states on page 1:
Defendants are unable to point to any 'specific confidential information relating to
the instant litigation shared with Weil Gotshal, and hold out no hope of being
able to do so at an evidentiary hearing.
That statement is incorrect. The evidence submitted with Gyrus's briefs establishes that
"specitic confidential information relating to the instant litigation" was shared with Weil
Gotshal. See, e. g., Exhibit 1, il 7, which is declaration testimony that the discussions involving
Weil Gotshal included "confidential information about Gyms Group's PK technology and the
products embodying that technology," which are the technology and products in this case,
because Olympus was very interested in that technology and those products. See also Exhibit 1,
if 8, and Exhibit 2, {iii 5 and 6, which is declaration testimony that prior patent infringement
litigation involving Gyrus and ArthroCare and the Gyrus/Arthroflare licenses were discussed
with Weil Gotshal. In addition, one or more Olympus representatives from Japan may testify at
the hearing on this point. Perhaps the reason for the incorrect statement is that ArthroCare

Case 1:07-cv—00729-SLR Document 54 Filed 06/27/2008 Page 2 of 3
inisunderstocd Gyn1s's Notitication, which states that Gyrus cannot present evidence as to stated
requirement 2, which is the actual prejudice requirement, as the requirement is understood by
Gyrus. The Notification does not state that Gyms cannot present evidence as to stated.
requirement l.
Second, missing from the response is any reference to a case requiring actual prejudice to
be established as a requirement for disqualification of counsel.
Third, Olympus, thqisole owner of Gyrus, is Weil Gotshai's client. Surely, there are not -. .,,,,_ _,r__.
' less stringent requirements than as set forth in Conley v. Chofinch, 43 F. Supp.2d 494 (D. Del.
2006) for concurrent representations as opposed to former representations.
Finally, in footnote l on page 2, ArthroCare requests that the hearing be rescheduled if
the Court proceeds with the hearing. Gyms has no objection to the rescheduling ofthe hearing,
as long as sufficient lead time is provided for the Japanese witnesses to schedule their trips.
Gyrus is willing to work with the Court and ArthroCare in that regard if the Court desires.
Respectfully submitted,
POTTER ANDERSON & CORROON LLP
OF COUNSEL:
By: /s/ David E. Moore
Darle M. Short Richard L. Horwitz (#2246)
Thomas J. Pardini David E. Moore (#3983)
Daniel A. Tanner III Hercules Plaza, 6m Floor
Daniel M. Schneider 1313 N. Market Street
OLIFF & BERRIDGE, PLC Wilmington, DE 19899
277 S. Washington Street, Suite 500 Tel: (302) 984-6000
Alexandria, VA 22314 rhorwitz@,potteranderson.com
Tel: (703) 836-6400 dmoore@_pottera1iderson.com
Dated: June 27, 2008 Atiorneysjbr Dejerzdcmts
$7131932487 Gyms Medical, Inc., Gyms ENT, L.L.C.,
ond Gyms ACML Inc.
2

g Case 1:07-cv—00729-SLR Document 54 Filed 06/27/2008 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 June 27, 2008, the attached document was
electronically tiled with the Clerk ofthe Court using CM/ECF which will send notification to the
registered attorney(s) of record that the document has been tiled and is available for viewing and R
downloading. _, _
— I further certify that on June 27, 2008, the attached document was Electronically Mailed _
to the following person(s):
Jack B. Blumenfeld I Jared Bobrow
Karen Jacobs Loudon Paula B. Whitten
Morris Nichols Arsht & Tunnel} LLP Weil, Gotshal & Manges LLP
1201 North Market Street 201 Redwood Shores Parkway
1).0. Box 1347 Redwood Shores, CA 94065
Wilmington, DE 19899 ]`ared.bobrow(@,wei1.com
.lBlumenfe1d(@,MNAT,com [email protected]
k1ouden@,mnat.com
Nicholas Groombridge Cabrach J. Connor
Weil, Gotshal & Manges LLP Kevin Kudlac
767 Fifth Avenue Weil, Gotshal & Manges LLP
New York, NY 10153 8911 Capital of Texas Highway, Suite 1350
nicholas.groornbridge@,weiicom Austin, TX 78759
cabrach.connor(fg_D,weil.com
[email protected]
/s/ David E. Moore
Richard L. Horwitz
David E. Moore
Potter Anderson & Corroon LLP
Hercules Plaza — Sixth Floor
1313 North Market Street l
Wilmington, DE 19801
(302) 984-6000
[email protected]
dn1oore@,r;ottera11derson.com
840224 / 32487

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