Free Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-01258-SLR

Document 349

Filed 04/23/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MCKESSON INFORMATION SOLUTIONS LLC, Plaintiff, v. THE TRIZETTO GROUP, INC. Defendant. C.A. No. 04-1258-SLR

THE TRIZETTO GROUP, INC.'S OPPOSITION TO MCKESSON'S MOTION FOR RECONSIDERATION OF THE COURT'S APRIL 19, 2006 RULING REGARDING DEPOSITION TESTIMONY OF ANTHONY BELLOMO (D.I. 346) The Court properly excluded from the infringement phase of this case the Volume 2 deposition testimony of TriZetto Executive Vice President Anthony Bellomo. For the reasons set forth below, McKesson's motion for reconsideration (D.I. 346) should be denied.1 1. On April 19, 2006, McKesson attempted to play videotaped excerpts from

Volume 2 of Mr. Bellomo's deposition before the Court had an opportunity to review those excerpts. The first few questions that McKesson played were clearly related to the issue of willfulness ­ asking whether TriZetto had obtained an opinion of counsel. April 19, 2006 Trial Tr., at 668:4-20. The Court ordered the videotape stopped and instructed the jury to disregard that testimony. Id. at 671:22-25.

1

At 7:54 p.m. on Saturday, April 22, McKesson's counsel sent an email to TriZetto's counsel seeking, for the first time, to raise McKesson's anticipated motion for reconsideration. Less than an hour later, before TriZetto's counsel could respond, McKesson filed the motion.

Case 1:04-cv-01258-SLR

Document 349

Filed 04/23/2006

Page 2 of 4

After reviewing the Volume 2 Bellomo testimony designated by McKesson, the Court excluded it from the infringement phase, because "[i]t's either irrelevant or it's redundant of information that has already come in through other witnesses." Id. at 705:2-6. 2. The Volume 2 Bellomo testimony that McKesson is now asking the Court

to admit is the same testimony the Court has already reviewed and deemed irrelevant or cumulative. It pertains to (1) the cost savings realized by TriZetto's customers from using the TriZetto products, and (2) the hosting service that TriZetto offers to its customers. The first subject is irrelevant to the topic of infringement (and has been covered by other witnesses, in any event). Other TriZetto witnesses, including Jeffrey Margolis and Craig Luftig, covered the second subject. See, e.g., April 19, 2006 Trial Tr., at 619:6-24, 723:1-724:10. 3. Moreover, McKesson has already rested its case, with the exception of the

live testimony of TriZetto employee Karen Lampe. Id. at 764:7-9 ("[S]ubject to the testimony of Ms. Lampe, we, McKesson, rest our case in chief"). McKesson has not provided any good cause for the Court to permit it to re-open its case-in-chief to play testimony that the Court has properly found to be irrelevant or cumulative. 4. Finally, should McKesson survive a JMOL motion, Mr. Bellomo will

testify live in TriZetto's case-in-chief on Monday, April 24, 2006. McKesson can question Mr. Bellomo on issues pertaining to infringement at that time. MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Jack B. Blumenfeld Jack B. Blumenfeld (#1014) Rodger D. Smith II (#3778) 1201 N. Market Street Wilmington, Delaware 19899 (302) 658-9200 Attorneys for Defendant The TriZetto Group, Inc.

2

Case 1:04-cv-01258-SLR

Document 349

Filed 04/23/2006

Page 3 of 4

OF COUNSEL: GIBSON, DUNN & CRUTCHER LLP Jeffrey T. Thomas David Segal Michael A. Sitzman Jamboree Center, 4 Park Plaza Irvine, CA 92614 April 23, 2006

517135

3

Case 1:04-cv-01258-SLR

Document 349

Filed 04/23/2006

Page 4 of 4

CERTIFICATE OF SERVICE I, Jack B. Blumenfeld, hereby certify that on April 23, 2006 I electronically filed The TriZetto Group, Inc.'s Opposition to McKesson's Motion for Reconsideration of the Court's Ruling Regarding Deposition Testimony of Anthony Bellomo (D.I. 346) with the Clerk of the Court using CM/ECF, which will send notification of such filing(s) to the following: Thomas J. Allingham, II Skadden, Arps, Slate, Meagher & Flom LLP I also certify that copies were caused to be served on April 23, 2006 upon the following in the manner indicated:

BY HAND Thomas J. Allingham, II Skadden, Arps, Slate, Meagher & Flom LLP One Rodney Square, P.O. Box 636 Wilmington, DE 19899

/s/ Jack B. Blumenfeld Morris, Nichols, Arsht & Tunnell LLP 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899 (302) 658-9200 [email protected]