Preview
INDEX NO. 654595/2Q12
(FILED: NEW |YORK COUNTY CLERK 0872072014 05:00 PM
NYSCEF DOC. NO.// 103 RECEIVED NYSCEF: 08/20/2914
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
p+ eemeneerncneesesnennansencen, Returnable: 9-9-2014
CLEAN AIR OPTIONS, LLC and
EURUS AIR DESIGN, AB
Plaintiffs. AEFIRMATION IN OPPOSITION
- against -
Index#:654595/2012
HUMANSCALE CORPORATION
Defendant.
ee enemen enn neem neem enna nnennenenenenenenen,
CRAIG D, HOLLAND, an attorney duly admitted to practice law before the
Courts of the State of New York hereby affirms the following under the pcnaltics of
perjury:
1 That I am a partner in the firm of AGOGLIA, HOLLAND &
AGOGLIA, P.C., attorneys for the plaintiffs in the above referenced
tnatter and as such I am fully familiar with the facts and circumstances set
forth herein.
respectfully submit this Affirmation in Opposition to the Motion brought
on by the attorneys for the defendant Humanscale Corporation which seeks
an Order pursuant to Section 202.21 (e) of the Uniform Rules of the New
York State Trial Courts, to vacate the June 3, 2014 Note of Issue filed by
plaintiffs in this matter. Although peppered with much language criticizing
both myself and my clients in this matter, the substance of defendant's
Motion is that the Note of Issue should be stricken because of certain
“critical discovery” remaining outstanding in this matter.
This “critical discovery” revolves entirely around patent documents and
patent files maintained by certain law firms, and more specifically,
communications with these law firms that have been requested by the
defendants.
As the Court will recall, and as is mentioned in Mr. Yellin’s Affirmation,
the defendants sought this information and brought on Motions for
Commissions, ete for two stated reasons. The first was that Humanseale
believed that the plaintiff, Eurus Air Design, AB had communications
with certain law firms in connection with patent filings and that same “will
bear directly on and may contain admissions as to whether the alleged
confidential information was actually within the scope of what was
publicly disclosed in Eurus’ patent filings and therefore not confidential”.
It also sought this information based on their position that my client's
patents may have been invalid based on a failure to disclose what is
commonly referred to as the “best mode”. T pointed out in my Affirmation
submitted to the court with respect to these motions and dated August 1.
2014 annexed hereto as EXHIBIT “A”, that as of September 2011 the
failure to disclose the “best mode” is no longer a basis upon which any
claim ofa patent may be cancelled of held invalid or otherwise
unenforceable. The defendants have apparently now conceded same. As I
have expressed to the Court tn our conferences, I am not a Patent Attorney
Defense counsel in these same conferences sought to educate me with
respect to Patent Law and explained to the Court why the “best mode”
concept was relevant herein. Their lack of knowledge conceming this
2011 change in Section [5(b) of the AIA was frankly to me a bit
surprising.
Hence, the only remaining basis for these documents to be requested is to
hope to find admissions from my client as to whether confidential
information was actually within the scope of what was publicly disclosed
in Eurus’ patent findings and therefore not confidential. From the very
beginning, I was not clear as to what the defendants sought and why.
However, | have, as counsel points out, turned over all of the records in
my client’s possession containing communications with his patent attommcy
in Sweden. Mr. Yellin refers to these documents as consisting of “nothing
more than a few emails and attachments exchanged between Mr. Loreth
and Mr. Eriksson in 2013 and 2014 that were obtained from Mr. Loreth’s
g-mail account’. T have taken the trouble of annexing hereto these Bates
Stamped documents as EXHIBIT “B”. Clearly, these documents are
considerably more than what Mr. Yellin describes as a few e-mails.
Indeed, these records do include documents from at least one of the other
Jaw firms from whom the defendants seek information. As an aside, if the
defendants are looking for admissions, which now seem to be the sole
basis of their request, these admission would, I assume, be made in just
such emails which we have turned over.
As | advised the court when this matter was first addressed at a
conference, my client’s Patent Attomey in Sweden, Mr. Eriksson was
hardly under my control. He advised me that he was semi-retired and had
limited access to his files. I did advise the court that I would attempt to
obtain whatever records I could and turn them over and my client has
assisted me in doing so. These records are annexed as EXHIBIT “B” and
were previously served on counsel for the defendants.
Quite frankly this seems to be just another attempt by the defendants to
delay a trial in this matter. At the Court's suggestion in a teleconference
two weeks ago I attained my client’s authorization and have now written
to all of the law firms from whom the defendants are seeking records
advising them that my client Mr. Lorcth has now authorized them to tum
over all documents in their possession. J] have already heard from at least
one of the firms that they have essentially no records whatsoever.
I have not stood on ceremony in this matter and simply advised the court
that all of these parties are outside of my control despite the fact they of
course are. | also do not concede as is contained in Mr. Yellin’s
Affirmation at Paragraph “2" that there is “critical discovery in this case
which remains outstanding”.
I would also point out to the Court that my clients long before this
litigation even commenced, gave Humanscale’s attorneys permission to
deal directly with plaintiff's Patent Attomeys, This, of course, is not
mentioned anywhere in defendant's moving papers.
10 I filed the Note of Issue in this matter so thatI might at the same time
make a motion for a speedy trial by way of special preference due to the
severely difficult financial situation of my client, Mr. Frank Barnes, the
sole principal of Clean Air Options.
Talso am a bit surprised at Mr. Yellin’s criticism of the documents turned
over by Mr. Loreth with respect to the communications with his patent
attorneys as the defendants gave me no reason to believe that they felt this
production was inadequate. Needless to say, the defendants have
essentially for months now written to me on a very frequent basis
complaining about one aspect of discovery or another. Some of these
letters are annexed to theit papers. Counsel at times in his Affirmation
criticizes my office for not responding to certain of the defendant’s
demands. Frankly, had I responded to all of the defendant’s complaints
during the course of this litigation I would have had little time to do
anything else. I would point out to the Court that I advised defense counsel
that Mr. Eriksson had requested a more detailed demand concerning just
the type of records that Humanscale was secking but the defendants never
tesponded to my demand for same.
12. The end date for disclosure in this matter contained in the original
Preliminary Conference Order (which is annexed as part of the Note of
Issue and annexed as Exhibit “A” to defendant's papers) was April 11,
2014. It is ow more than four months past this original date. My
Certificate of Readiness annexed to the Note of Issue states that there was
a dispute at the time as to whether or not depositions were concluded. I
had taken the position that the defendants ended Mr. Loteth’s depostion
but eventually agreed to produce Mt. Loreth from Sweden once again to
conclude his deposition. I also pointed out in my filing that the defendants
had moved for certain non party disclosure and had objected to some of
my responses. There is nothing inaccurate in my Certificate of Readiness
as is required to strike a Note of Issue. Rather, the only outstanding matter
currently is in fact this non party disclosure which defendants are seeking.
1, of course have no objection to them continuing to seek this information
and in fact have assisted in same. However, I do not believe that this issue
which is the only one raised by the defendants is sufficient to strike the
plaintiff's Note of Issue. It is non-party disclosure and hopefully the firms
will respond to my letters and produce records promptly. There is hence
no reason to strike the Note of Issue.
Dated: Jericho, New York
August 20, 2014 ee,
C Z
f é
Ye onirss Cte .
—
— ae
CRAIG D. HOLLAND, ESQ.
AGOGLIA, HOLLAND &
AGOGLIA, P.C.
Attorneys for Plaintiff
500 North Broadway, Suite 237
Jericho, New York 11753
(516) 396-0800
Preview
INDEX NO. 654595/2Q12 (FILED: NEW |YORK COUNTY CLERK 0872072014 05:00 PM NYSCEF DOC. NO.// 103 RECEIVED NYSCEF: 08/20/2914 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK p+ eemeneerncneesesnennansencen, Returnable: 9-9-2014 CLEAN AIR OPTIONS, LLC and EURUS AIR DESIGN, AB Plaintiffs. AEFIRMATION IN OPPOSITION - against - Index#:654595/2012 HUMANSCALE CORPORATION Defendant. ee enemen enn neem neem enna nnennenenenenenenen, CRAIG D, HOLLAND, an attorney duly admitted to practice law before the Courts of the State of New York hereby affirms the following under the pcnaltics of perjury: 1 That I am a partner in the firm of AGOGLIA, HOLLAND & AGOGLIA, P.C., attorneys for the plaintiffs in the above referenced tnatter and as such I am fully familiar with the facts and circumstances set forth herein. respectfully submit this Affirmation in Opposition to the Motion brought on by the attorneys for the defendant Humanscale Corporation which seeks an Order pursuant to Section 202.21 (e) of the Uniform Rules of the New York State Trial Courts, to vacate the June 3, 2014 Note of Issue filed by plaintiffs in this matter. Although peppered with much language criticizing both myself and my clients in this matter, the substance of defendant's Motion is that the Note of Issue should be stricken because of certain “critical discovery” remaining outstanding in this matter. This “critical discovery” revolves entirely around patent documents and patent files maintained by certain law firms, and more specifically, communications with these law firms that have been requested by the defendants. As the Court will recall, and as is mentioned in Mr. Yellin’s Affirmation, the defendants sought this information and brought on Motions for Commissions, ete for two stated reasons. The first was that Humanseale believed that the plaintiff, Eurus Air Design, AB had communications with certain law firms in connection with patent filings and that same “will bear directly on and may contain admissions as to whether the alleged confidential information was actually within the scope of what was publicly disclosed in Eurus’ patent filings and therefore not confidential”. It also sought this information based on their position that my client's patents may have been invalid based on a failure to disclose what is commonly referred to as the “best mode”. T pointed out in my Affirmation submitted to the court with respect to these motions and dated August 1. 2014 annexed hereto as EXHIBIT “A”, that as of September 2011 the failure to disclose the “best mode” is no longer a basis upon which any claim ofa patent may be cancelled of held invalid or otherwise unenforceable. The defendants have apparently now conceded same. As I have expressed to the Court tn our conferences, I am not a Patent Attorney Defense counsel in these same conferences sought to educate me with respect to Patent Law and explained to the Court why the “best mode” concept was relevant herein. Their lack of knowledge conceming this 2011 change in Section [5(b) of the AIA was frankly to me a bit surprising. Hence, the only remaining basis for these documents to be requested is to hope to find admissions from my client as to whether confidential information was actually within the scope of what was publicly disclosed in Eurus’ patent findings and therefore not confidential. From the very beginning, I was not clear as to what the defendants sought and why. However, | have, as counsel points out, turned over all of the records in my client’s possession containing communications with his patent attommcy in Sweden. Mr. Yellin refers to these documents as consisting of “nothing more than a few emails and attachments exchanged between Mr. Loreth and Mr. Eriksson in 2013 and 2014 that were obtained from Mr. Loreth’s g-mail account’. T have taken the trouble of annexing hereto these Bates Stamped documents as EXHIBIT “B”. Clearly, these documents are considerably more than what Mr. Yellin describes as a few e-mails. Indeed, these records do include documents from at least one of the other Jaw firms from whom the defendants seek information. As an aside, if the defendants are looking for admissions, which now seem to be the sole basis of their request, these admission would, I assume, be made in just such emails which we have turned over. As | advised the court when this matter was first addressed at a conference, my client’s Patent Attomey in Sweden, Mr. Eriksson was hardly under my control. He advised me that he was semi-retired and had limited access to his files. I did advise the court that I would attempt to obtain whatever records I could and turn them over and my client has assisted me in doing so. These records are annexed as EXHIBIT “B” and were previously served on counsel for the defendants. Quite frankly this seems to be just another attempt by the defendants to delay a trial in this matter. At the Court's suggestion in a teleconference two weeks ago I attained my client’s authorization and have now written to all of the law firms from whom the defendants are seeking records advising them that my client Mr. Lorcth has now authorized them to tum over all documents in their possession. J] have already heard from at least one of the firms that they have essentially no records whatsoever. I have not stood on ceremony in this matter and simply advised the court that all of these parties are outside of my control despite the fact they of course are. | also do not concede as is contained in Mr. Yellin’s Affirmation at Paragraph “2" that there is “critical discovery in this case which remains outstanding”. I would also point out to the Court that my clients long before this litigation even commenced, gave Humanscale’s attorneys permission to deal directly with plaintiff's Patent Attomeys, This, of course, is not mentioned anywhere in defendant's moving papers. 10 I filed the Note of Issue in this matter so thatI might at the same time make a motion for a speedy trial by way of special preference due to the severely difficult financial situation of my client, Mr. Frank Barnes, the sole principal of Clean Air Options. Talso am a bit surprised at Mr. Yellin’s criticism of the documents turned over by Mr. Loreth with respect to the communications with his patent attorneys as the defendants gave me no reason to believe that they felt this production was inadequate. Needless to say, the defendants have essentially for months now written to me on a very frequent basis complaining about one aspect of discovery or another. Some of these letters are annexed to theit papers. Counsel at times in his Affirmation criticizes my office for not responding to certain of the defendant’s demands. Frankly, had I responded to all of the defendant’s complaints during the course of this litigation I would have had little time to do anything else. I would point out to the Court that I advised defense counsel that Mr. Eriksson had requested a more detailed demand concerning just the type of records that Humanscale was secking but the defendants never tesponded to my demand for same. 12. The end date for disclosure in this matter contained in the original Preliminary Conference Order (which is annexed as part of the Note of Issue and annexed as Exhibit “A” to defendant's papers) was April 11, 2014. It is ow more than four months past this original date. My Certificate of Readiness annexed to the Note of Issue states that there was a dispute at the time as to whether or not depositions were concluded. I had taken the position that the defendants ended Mr. Loteth’s depostion but eventually agreed to produce Mt. Loreth from Sweden once again to conclude his deposition. I also pointed out in my filing that the defendants had moved for certain non party disclosure and had objected to some of my responses. There is nothing inaccurate in my Certificate of Readiness as is required to strike a Note of Issue. Rather, the only outstanding matter currently is in fact this non party disclosure which defendants are seeking. 1, of course have no objection to them continuing to seek this information and in fact have assisted in same. However, I do not believe that this issue which is the only one raised by the defendants is sufficient to strike the plaintiff's Note of Issue. It is non-party disclosure and hopefully the firms will respond to my letters and produce records promptly. There is hence no reason to strike the Note of Issue. Dated: Jericho, New York August 20, 2014 ee, C Z f é Ye onirss Cte . — — ae CRAIG D. HOLLAND, ESQ. AGOGLIA, HOLLAND & AGOGLIA, P.C. Attorneys for Plaintiff 500 North Broadway, Suite 237 Jericho, New York 11753 (516) 396-0800