P. 37 -25- Case 2:04-cv-08425-VAP-E Document 331 Filed 02/06/12 Page 31 of 32 Page ID #:9381 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: February 6, 2012 Respectfully submitted, TONY WEST Assistant Attorney General ANDRÉ BIROTTE, JR United States Attorney JOSEPH H. HUNT Director VINCENT M. GARVEY Deputy Branch Director /s/ Ryan B. Parker PAUL G. FREEBORNE RYAN B. PARKER U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Room 6108 Washington, D.C. 20044 Telephone: (202) 353-0543 Facsimile: (202) 616-8202 paul.freeborne@usdoj.gov Attorneys for Defendants United States of America and Secretary of Defense UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543 DEFENDANTS' OPPOSITION TO PLAINTIFF’S MOTION FOR AN AWARD OF ATTORNEY’S FEES AND EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT AND FED. R. CIV. P. 37 Case 2:04-cv-08425-VAP-E Document 331 Filed 02/06/12 Page 32 of 32 Page ID #:9382

IV. Conclusion Based on the foregoing, Plaintiffs respectfully request that this Court grant Plaintiffs’ motion; sanction Defendant as described herein; schedule a contempt hearing; order Defendant and its individual owners pay the reasonable expenses, including attorneys fees, pursuant to Fed. R. Civ. P. 37(b)(2)(C); and issue an order that Defendant show cause for why it should not be held in contempt of this Court’s July 12, 2011 Order for not having responded adequately to discovery requests, as described in Plaintiffs’ August 30, 2011 Letter, attached hereto as Exhibit E. Respectfully submitted, Case 1:07-cv-01028-HFB Document 119 Filed 09/09/11 Page 11 of 12 PageID #: 1135 Memorandum in Support of Plaintiffs’ Motion for Sanctions Pursuant to Fed. R. Civ. P. 37(b)(2) 12 /s/ Caitlin Berberich Caitlin Berberich Tennessee Bar No. 025780 Melody Fowler-Green Tennessee Bar No. 023266 SOUTHERN MIGRANT LEGAL SERVICES A PROJECT OF TEXAS RIOGRANDE LEGAL AID, INC. 311 Plus Park Blvd., Suite 135 Nashville, Tennessee 37217 Telephone: (615) 750-1200 Facsimile: (615) 366-3349 CERTIFICATE OF SERVICE I hereby certify that on this the 9th day of September, 2011, I caused a true and correct copy of the foregoing to be electronically served upon the following counsel of record for Defendant, via the Court’s electronic case-filing system: F. Mattison Thomas 103 East Main, Ste. D El Dorado, AR 71730 /s/ Caitlin Berberich Case 1:07-cv-01028-HFB Document 119 Filed 09/09/11 Page 12 of 12 PageID #: 1136

Plaintiffs and CVLO must be required to, and must in fact, meet their burden and comply with the rules and court orders in the same manner, and to the same extent, as every other litigant and attorney in federal court. For these reasons, Defendant Owens-Illinois, Inc. respectfully requests that the Court strike “Plaintiffs’ Amended Statement on Expert Witness Reports” (e.g., No. 2:10-cv- 67443-ER, ECF No. 324) as to Owens-Illinois, Inc. pursuant to Federal Rules of Civil Procedure 16(f) and 37(b). Case 2:09-cv-60256-ER Document 132

. The third factor – the risk of prejudice to Defendants – involves the same facts discussed above that Magistrate Judge Laporte properly considered in connection with the Rule 37(c)(1) “harmlessness” test.

That is not the case, however, which presumably is why Oracle fails to provide any details of these alleged statements. Reply Declaration of Elaine Wallace in Support of Defendants’ Motion for Sanctions Pursuant to Fed. R. Civ. P. 37(c) and 16(f) (“Wallace Reply Decl.”) ¶1. 5 United States v. Rapanos, 376 F.3d 629, 645 (6th Cir. 2004) (late disclosure harmless because defendants were already aware of the data and the data was beneficial to them); Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 564 (5th Cir. 2004) (failure to provide report harmless because plaintiffs informed defendant of the witness and nature of his testimony six months before trial and the testimony consisted of simple calculations); Reiner v. Warren Resort Case4:07-cv-01658-PJH Document399 Filed08/04/09 Page9 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SFI-615769v1 - 6 - REDACTED DEFENDANTS’ REPLY ISO MOTION FOR SANCTIONS Case No. 07-CV-1658 PJH (EDL) Finally, Oracle overstates the impact of the sanction Defendants seek, arguing that Defendants seek to “wipe out any possibility of having to fairly compensate Oracle” and to preclude “most categori

As a result, MGC should not be allowed to offer any documentary evidence at trial, per the automatic, self-executing sanction in Rule 37. And the Court should implement this automatic sanction regardless of whether the Court finds willfulness or bad faith by MGC, even though it may preclude MGC from mounting a defense at trial. See, e.g., Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008), as amended (Sept. 16, 2008) ("We reject the notion that the district court was required to make a finding of willfulness or bad faith ... To the contrary, the portion of Rule 37 relied on ...has been described as “a self-executing, automatic sanction to provide a strong inducement for disclosure of material. The implementation of the sanction is appropriate “even when a litigant's entire cause of action ... will be precluded.”) (internal citations and quotation marks omitted)).

In light of the record above, Caltech cannot carry that REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL Case 2:16-cv-03714-GW-AGR Document 637 Filed 08/27/18 Page 27 of 31 Page ID #:31869 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -23- DEFENDANTS’ REPLY ISO MOTION TO STRIKE CASE NO. 2:16-CV-3714-GW (AGRX) burden. Moreover, because unsupported attorney arguments are not proof, Caltech cannot carry its burden on any of the four factors that could save it from sanctions under Fed. R. Civ. P. 37. Caltech’s Surprise DOE Theories Should Be Stricken Because DOE Contentions Do Not Depend On Non-Infringement Theories. Caltech offers a single defense of its eleven admittedly untimely DOE infringement theories—that they depend on and respond to Defendants’ non- infringement positions. But “DOE contentions are not dependent on the opposing party’s noninfringement theories.

9 CERTIFICATE OF SERVICE I, James J. Pizzirusso, hereby certify that I caused a true and correct copy of the foregoing Motion Memorandum in Support for an Order (1) To Show Cause Why Third-Parties John Branca and John McClain, as Executors of the Estate of Michael Jackson, Are not in Civil Contempt and (2) For Sanctions against the Estate Pursuant to Fed. R. Civ. P. 37(b)(2) to be served on all counsel of record via electronic mail on December 14, 2015. /s/ James J. Pizzirusso__________ James J. Pizzirusso Case 1:13-cv-00848-RCL Document 47 Filed 12/14/15 Page 9 of 9

. Similarly, Federal Rule 37(c)(1)(A) states that the court “may order payment of the reasonable expenses, including attorney’s fees, caused by the failure.” And, the Court has the inherent power to sanction parties who abuse the judicial process.

The provision places the burden on the disobedient party to avoid expenses by showing that his failure is “justified or that certain circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(C). Here, Plaintiffs’ willful failure to respond to discovery is failure to comply with this Court’s Order [Doc.