Summary
finding that an article in a “seminal publication in the field of electrical engineering” with an explicit citation to the allegedly invalidating reference was a research aid that made the sought-after reference publicly accessible
Summary of this case from Blue Calypso, LLC v. Groupon, Inc.Opinion
01-CV-1974.
May 14, 2008
Sidley Austin Brown Wood, Bryan K. Anderson, Esq., of Counsel, David T. Miyamoto, Esq., of Counsel, Denise L. McKenzie, Esq., of Counsel, Edward G. Poplawski, Esq., of Counsel, Olivia M. Kim, Esq., of Counsel, Sandra S. Fujiyama, Esq., of Counsel, Los Angeles, California and Cornell University, Office of Counsel, James J. Mingle, Esq., of Counsel, Nelson E. Roth, Esq., of Counsel, Valerie L. Cross, Esq., of Counsel, Ithaca, New York, Attorneys for Plaintiffs/Counterdefendants.
DLA Piper, Rudnick, Gray Cary US LLP, Erin P. Penning, Esq., of Counsel, John Allcock, Esq., of Counsel, Sean C. Cunningham, Esq., of Counsel, Arthur A. Wellman, Esq., of Counsel, Licia E. Vaughn, Esq., of Counsel, Stewart M. Brown, Esq., of Counsel, San Diego, California and Harter, Secrest Emery LP, Jerauld E. Brydges, Esq., Rochester, New York and Fish, Richardson Law Firm, Barry K. Shelton, Esq., of Counsel, Austin, Texas, Attorneys for Defendant/Counterclaimant.
ORDER
Presently before the court is a motion for reconsideration of Cornell's second motion in limine and to preclude expert testimony by Dr. Flynn and limit Dr. Flynn's factual testimony to the Tjaden-Flynn article. This motion is denied.
During the Pretrial Conference on May 6, 2008, Hewlett-Packard committed to treating Dr. Flynn as a fact witness, not an expert witness. Counsel for Hewlett-Packard explained that Dr. Flynn "is a fact witness. He will not be called as an expert. We will not refer to him as an expert. We will not seek to qualify him as an expert. He is just going to say here is what I did, here's the article I wrote." Tr. at 216:6-11. Counsel went on to "guarantee" that Hewlett-Packard would only ask Dr. Flynn "fact questions." Tr. at 217:4-5. In view of Hewlett-Packard's commitment to treat Dr. Flynn as a fact witness and confine his testimony accordingly, Cornell's motion is denied.
The court will, however, entertain objections to the scope of Dr. Flynn's testimony during trial with an eye to confining Dr. Flynn to his proper role and knowledge as a fact witness.
It is therefore
ORDERED that Cornell University and Cornell Research Foundation's motion, (Dkt. No. 979) is denied.
IT IS SO ORDERED.