Free Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-01258-SLR Document 327 Filed O4/13/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MCKESSON INFORMATION SOLUTIONS LLC, )
Plaintiff, )
v. g Civil Action No. 04—1258—SLR
THE TRIZETTO GROUP, INC., g
Defendant. )
)
MCKESSON'S RESPONSIVE BRIEF TO TRIZETTO'S MOTION TO STRIKE
MCKESSON'S PRETRIAL SUBMISSIONS RE BENCH TRIAL ISSUES
McKesson's pretrial order submission regarding the bench trial on equitable issues
should be admitted because it was timely under the circumstances and TriZetto suffers no
prejudice from its admission.
TriZetto's complaint regarding McKesson's exhibit list is misleading and improper.
The vast majority of the exhibits (Exs. 1100-1369) merely replaces the previously listed
exhibit numbers 1100-lxxx, which were identified as "Video, screen captures and/or
printouts of Facets, ClaimFacts and QicLink program systems." (D.I. 298, Ex. 6 at 38.)
McKesson was not able to assign specific exhibits numbers to these documents and
things in its original exhibit list due to TriZetto’s failure to provide McKesson with
working versions of all three Accused Products until only very recently. Indeed,
McKesson did not receive access to the accused ClaimFacts and QicLink products until
three days and one day, respectively, before the Joint Pretrial Order was due. Had
TriZetto complied with McKesson's requests for working products in a timely manner,
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Case 1:04-cv-01258-SLR Document 327 Filed O4/13/2006 Page 2 of 3
McKesson would have been able to assign specific exhibit numbers to these exhibits in
its original exhibit list.
Moreover, TriZetto was fully aware that McKesson intended to use screenshots,
printouts and video of each Accused Product prior to the filing of the Joint Pretrial Order
because McKesson, on March 28, clearly identified those exhibits in its original exhibit
list and reserved exhibit ntunbers 1100-lxxx for those documents and things. TriZetto
did not object to or disagree with McKesson's use of this placeholder designation that
McKesson made over two weeks ago. In fact, TriZetto could not have objected to or
disagreed with McKesson's use of placeholder designation because, on March 22,
TriZetto's own teclmical engineer, Peter Snyder, represented to McKesson that "the
system in your office accurately represents how the Facets product operates." Indeed, at
the Pretrial Conference, TriZetto's counsel stated that he did not think there would be any
problem or issue regarding use of screenshots of the Accused Products. (D.I. 311 at 51—
52.) Additionally, in TriZetto's motion seeking exclusion of McKesson's exhibits,
TriZetto failed to identify any specific objections on which TriZetto base their request to
exclude McKesson's submission, other than its argument that McKesson's submission
was untimely.
With regard to the other exhibits (Exs. 470-484) and McKesson's pretrial
submissions on bench trial issues, TriZetto's argument that McKesson's submission is
untimely is without merit. Contrary to TriZetto's assertion, the schedule for the bench
trial was not set until the Pretrial Conference on April 5, 2006. The Court's February 18,
2005 Scheduling Order set forth a date for the jury trial only. (D.I. 28.) At the November
7, 2005 hearing, the Court directed that TriZetto's equitable defenses be tried to the Court
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Case 1:04-cv-01258-SLR Document 327 Filed O4/13/2006 Page 3 of 3
and indicated that this bench trial may take place "inthe second stage" (D.I. 138 at 36:3-
5.) The Court's November 22, 2006 Order also did not set a date for commencement of
the bench trial. (D.I. 145.) Thus, as of March 31, 2006, when the Joint Pretrial Order
was filed, the only matters scheduled for trial on April 17, 2006, were the jury trial issues
of infringement, willfiilness and damages.
Further, in the Joint Pretrial Order filed on March 31, McKesson expressly
reserved the right to file the pretrial order submissions relating to the bench trial in
accordance with the schedule to be set by the Court. (D.I. 298, Exs. 1, 2, 4, 6, 8, 10 & 12.)
TriZetto reviewed McKesson's pretrial submission prior to its filing and TriZetto did not
object to, or disagree with, or even raise for discussion McKesson's reservation of its
rights on this issue. Under the circumstances, McKesson's filing of pretrial submissions
relating to the bench trial was proper, justified and timely.
For the foregoing reasons, TriZetto’s motion should be denied.
By: /s/ Michael A. Barlow
Thomas J. Allingham II (#0476)
Michael A. Barlow (#3928)
Jeremy D. Anderson (#4515)
SKAD1>EN,ARPs, SLATE,
MEAGHER & From LLP
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899
(302) 651-3000
Attomeys for Plaintiff McKesson
Information Solutions LLC
OF COUNSEL:
Jeffery G. Randall
David W. Hansen
S1s, SLATE,
MEAGHER & FLoM LLP
525 University Avenue, Suite 1100
Palo Alto, California 94301
(650) 470-4500
DATED: April 13, 2006
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