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Best Buy Letter to Court Regarding Damages

Best Buy Letter to Court Regarding Damages

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Published by EJNaughton

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Published by: EJNaughton on Jul 15, 2011
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07/15/2011

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Emmett
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612-349-8728
EJMcMahon@rkmc.oom
April
25, 2011
Honorable Shira
A.
ScheindlinUnited States District Court Judge " . " Daniel Patrick Moynihan United States
Courthouse:""»;~:s.1~
500 Pearl Street, Room 1620
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New York, New York
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Re:
Software Freedom Conservancy
Inc"
et
al.
v.
Best
Buy
Co., Inc.,
et'~q~
X.;...
~.,
09-cv-I0155 (SAS)
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Dear
Judge Scheindlin:
~"
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On
behalf
of
defendant Best Buy
Co"
Inc. ("Best Buy"), we write to
~uest
a
prewmotio~
/
,/
conference regarding a motion to strike Plaintiffs'
'm
for"
. . -",,'" /pro
0
cs u
.,.
mc
It
of
infrin ent." (Dkt. No. I at
~
33.) The basisor the motion
is
that, although discovery
is
closed and Plaintiffs continue to pursue nonstatutory damages in this case, they have not provided
a
computation
of
such damages andsupporting information
as
required by Fed.
R.
Civ.
P.
26(a)(I)(A)(iii), nor have they providedany expert report
or
disclosures
as
required
by
Rule 26(a)(2). Plaintiffs continue to insist on"hiding the ball."
The
Federal Rules required Plaintiffs to disclose a computation
of
each category
of
damages that they claim. Fed; R. Civ.
P.
26(a)(1 )(A)(iii). But no such computation has everbeen provided to Best Buy, Plaintiffs' initial disclosures, which have never been supplementedas required
by
Fed. R. Civ.
P.
26(e), did nothing more than reiterate the allegations
in
theComplaint. Plaintiffs also failed to produce a damages expert report
by
April
11
th, as requiredby the Court's scheduling order, Furthermore, even after this issue was raised with counsel forPlaintiffs, they have not provided the requisite disclosures. Plaintiffs should therefore
be
precluded from offering any evidence on these claims at triaL Fed.
R.
Civ, P. 37(c);
DesignStrategy, Inc.
v,
Davis,
469
FJd
284, 294-296 (2d.
CiL
2006) (affirming a district court'sexclusion
of
damages evidence where plaintiff failed to comply with the requirements
of
Fed. R.Civ.
P.
26(a), which included providing a computation
of
damages supported
by
documents);
Gould
Paper
Corp.
v.
Madisen Corp.,
614
F. Supp.
2d
485,
490
(S.D.N.Y.
2009) (precluding
plaintiff from proving anything but nominal damages where they failed to provide a computation
of
each category
of
damages claimed and where fact and expert discovery had closed).
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Case 1:09-cv-10155-SAS Document 194 Filed 04/26/11 Page 1 of 2

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