Nice Systems Inc. et al v. Witness Systems Inc.

MOTION to Strike 224 Notice

D. Del.September 7, 2007

- 1 - 12033782.doc IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE NICE SYSTEMS, INC. and NICE SYSTEMS LTD., Plaintiffs, v. WITNESS SYSTEMS, INC., Defendant. Civil Action No. 06-311-JJF WITNESS SYSTEMS, INC’S MOTION TO STRIKE PLAINTIFFS’ SECOND AND THIRD SUPPLEMENTAL OBJECTIONS AND RESPONSES TO WITNESS SYSTEMS, INC.’S INTERROGATORY NOS. 17 AND 18 AND TO PRECLUDE PLAINTIFFS’ USE OF EVIDENCE RELATED THERETO Pursuant to Rules 16, 26 and 37 of the Federal Rules of Civil Procedure, Defendant Witness Systems, Inc. (“Witness Systems”) moves the Court to enter an Order (a) striking Plaintiffs NICE Systems, Inc. and NICE Systems, Ltd.’s (collectively, “NICE”) supplemental responses to Witness Systems’ interrogatories (served on August 2 and August 10, 2007); (b) precluding NICE from introducing at trial any evidence seeking to establish conception and reduction to practice dates prior to the filing priority dates of each of the patents-in-suit; and (c) granting such other relief as the Court deems just, proper, and equitable. Witness Systems, Inc.’s Brief in Support of this Motion, the Declaration of Kyle Wagner Compton in Support of this Motion, and accompanying supporting exhibits are filed contemporaneously herewith. Case 1:06-cv-00311-JJF Document 225 Filed 09/07/2007 Page 1 of 4 - 2 - 12033782.doc Dated: September 7, 2007 FISH & RICHARDSON P.C. By: /s/ Kyle Wagner Compton William J. Marsden, Jr. (#2247) Kyle Wagner Compton (#4693) 919 N. Market Street, Suite 1100 P. O. Box 1114 Wilmington, Delaware 19899-1114 Telephone: (302) 652-5070 kcompton@fr.com Nagendra Setty (pro hac vice) Daniel A. Kent (pro hac vice) 1180 Peachtree Street, NE, 21st Floor Atlanta, GA 30309 Telephone: (404) 892-5005 ATTORNEYS FOR DEFENDANT WITNESS SYSTEMS, INC. Case 1:06-cv-00311-JJF Document 225 Filed 09/07/2007 Page 2 of 4 - 3 - 12033782.doc LOCAL RULE 7.1.1 CERTIFICATION Pursuant to D. Del. Local Rule 7.1.1, Defendant Witness Systems, Inc. certifies that it has sought the agreement of Plaintiffs NICE Systems, Inc. and NICE Systems Ltd. (collectively, “ NICE” ) to withdraw the supplemental responses to interrogatories that are the subject of this motion. NICE has not agreed to withdraw the supplemental responses. /s/ Kyle Wagner Compton Kyle Wagner Compton (#4693) Dated: September 7, 2007 Case 1:06-cv-00311-JJF Document 225 Filed 09/07/2007 Page 3 of 4 - 4 - 12033782.doc CERTIFICATE OF SERVICE I hereby certify that on this 7th day of September, 2007, I electronically filed with the Clerk of Court the foregoing WITNESS SYSTEMS, INC’S MOTION TO STRIKE PLAINTIFFS’ SECOND AND THIRD SUPPLEMENTAL OBJECTIONS AND RESPONSES TO WITNESS SYSTEMS, INC.’S INTERROGATORY NOS. 17 AND 18 AND TO PRECLUDE PLAINTIFFS’ USE OF EVIDENCE RELATED THERETO using CM/ECF which will send electronic notification of such filing(s) to the below-listed Delaware counsel. In addition, the filing will also be sent via hand delivery. Josy W. Ingersoll Melanie K. Sharp Karen E. Keller Young, Conaway, Stargatt & Taylor, LLP 1000 West Street, 17th Floor P.O. Box 391 Wilmington, DE 19899 Attorneys for Plaintiffs Nice Systems Ltd. and Nice Systems, Inc. I also certify that on September 7, 2007, I have sent by electronic mail and U.S. First Class Mail, the document(s) to the following non-registered participants: Scott G. Lindvall Daniel DiNapoli Joseph M. Drayton Robert R. Laurenzi Jason Frank Steven Chin Kaye Scholer LLP 425 Park Avenue New York, NY 10022 Attorneys for Plaintiffs Nice Systems Ltd. and Nice Systems, Inc. /s/Kyle Wagner Compton Kyle Wagner Compton Case 1:06-cv-00311-JJF Document 225 Filed 09/07/2007 Page 4 of 4 12033786.doc IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE NICE SYSTEMS, INC. and NICE SYSTEMS LTD., Plaintiffs, v. WITNESS SYSTEMS, INC., Defendant. Civil Action No. 06-311-JJF ORDER GRANTING WITNESS SYSTEMS, INC’S MOTION TO STRIKE PLAINTIFFS’ SECOND AND THIRD SUPPLEMENTAL OBJECTIONS AND RESPONSES TO WITNESS SYSTEMS, INC.’S INTERROGATORY NOS. 17 AND 18 AND TO PRECLUDE PLAINTIFFS’ USE OF EVIDENCE RELATED THERETO Having considered Witness Systems, Inc.’s Motion to Strike Plaintiffs’ Second and Third Supplemental Objections and Responses to Witness Systems, Inc.’s Interrogatory Nos. 17 and 18 and to Preclude Plaintiffs’ Use of Evidence Related thereto, IT IS HEREBY ORDERED THAT: The Motion is GRANTED: (1) Plaintiffs’ Second and Third Second and Third Supplemental Objections and Responses to Witness Systems, Inc.’s Interrogatory Nos. 17 and 18 (served August 2 and August 10, 2007) are stricken; and (2) Plaintiffs are precluded from presenting at trial any evidence seeking to establish conception and reduction to practice dates prior to the filing priority dates of each of the patents- in-suit. Case 1:06-cv-00311-JJF Document 225-2 Filed 09/07/2007 Page 1 of 2 - 2 - 12033786.doc This _____ day of October, 2007. __________________________________ Joseph J. Farnan, Jr. United States District Judge Case 1:06-cv-00311-JJF Document 225-2 Filed 09/07/2007 Page 2 of 2