Oracle Corporation et al v. SAP AG et al

Filing 829

Memorandum in Opposition to 767 Plaintiffs' Motion No. 3 to Exclude Expert Testimony of David Garmus filed by SAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Proposed Order)(Froyd, Jane) (Filed on 9/9/2010) Modified on 9/10/2010 (vlk, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 829

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Robert A. Mittelstaedt (SBN 060359) Jason McDonell (SBN 115084) Elaine Wallace (SBN 197882) JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] Tharan Gregory Lanier (SBN 138784) Jane L. Froyd (SBN 220776) JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Scott W. Cowan (Admitted Pro Hac Vice) Joshua L. Fuchs (Admitted Pro Hac Vice) JONES DAY 717 Texas, Suite 3300 Houston, TX 77002 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE USA, INC., et al., Plaintiffs, v. SAP AG, et al., Defendants. Case No. 07-CV-1658 PJH (EDL) DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION NO. 3 TO EXCLUDE EXPERT TESTIMONY OF DAVID GARMUS Date: September 30, 2010 Time: 2:30 p.m. Courtroom: 3, 3rd Floor Judge: Hon. Phyllis J. Hamilton
DEFS.' OPP. TO PLS.' MOT. NO. 3 TO EXCLUDE EXPERT TESTIMONY OF DAVID GARMUS Case No. 07-CV-1658 PJH (EDL)

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TABLE OF CONTENTS Page I. II. III. IV. INTRODUCTION .............................................................................................................. 1 LEGAL STANDARD......................................................................................................... 2 PLAINTIFFS' MOTION IS MOOT IN LIGHT OF THIS COURT'S ORDER ................ 3 GARMUS' REBUTTAL OPINIONS REGARDING PROPER IFPUG STANDARDS AND TECHNIQUES ARE RELEVANT AND ADMISSIBLE ............... 4 A. Pinto's Purported Use of FPA and Garmus' Rebuttal ............................................ 4 B. Garmus' Rebuttal Opinions Regarding IFPUG Standards Are Permissible and Relevant in Light of Garmus' Extensive Experience....................................... 5 C. Garmus' Reliance on IFPUG Bulletin Board Posts as Examples of Further Criticisms of "Backfiring" Are Relevant, and Plaintiffs' Criticisms at Best Go to the Weight of This Evidence......................................................................... 7 GARMUS' REBUTTAL OPINIONS REGARDING THE PROPER SCOPE OF AN FPA ANALYSIS ARE ADMISSIBLE........................................................................ 9 A. Garmus' Rebuttal Opinions Properly Criticize Pinto's Methodology .................... 9 B. Garmus' Rebuttal Opinions Have Sufficient Factual Support.............................. 10 C. Materials Plaintiffs Believe Garmus Should Have Reviewed Are Not Relevant to His Analysis....................................................................................... 14 D. Concerns Regarding Evidence Garmus Considered Go To Weight, Not Admissibility, of His Opinions ............................................................................. 16 E. Plaintiffs' Arguments Attacking Clarke's Reliance on Garmus Lack Merit ........ 17 Garmus' Exemplar Function Point counts are Relevant and Proper Rebuttal Opinions ............................................................................................................................ 18 GARMUS DID NOT OFFER A LEGAL OPINION REGARDING PROHIBITED "SAVED DEVELOPMENT COSTS" DAMAGES ......................................................... 21 CONCLUSION ................................................................................................................. 23

V.

VI. VII. VIII.

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TABLE OF AUTHORITIES Page(s) Bazemore v. Friday, 478 U.S. 385 (1986)............................................................................................................... 3, 16 Burnham v. United States, No. CV-07-8017-PHX-DGC, 2009 WL 2169191 (D. Ariz. July 20, 2009).............................. 20 Callaway Golf Co. v. Screen Actors Guild, Inc., No. 07CV0373-LAB (WMc), 2009 WL 5125603 (S.D. Cal. Dec. 18, 2009) ......................... 5, 6 Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252 (9th Cir. 2001)...................................................................................................... 8 Crow Tribe of Indians v. Racicot, 87 F.3d 1039 (9th Cir. 1996)...................................................................................................... 22 Crowley v. Chait, 322 F. Supp. 2d 530 (D.N.J. 2004) ............................................................................................ 13 Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311 (9th Cir. 1995)...................................................................................................... 14 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)..................................................................................................................... 2 Davis v. Mason County, 927 F.2d 1473 (9th Cir. 1991).............................................................................................. 3, 5, 7 EEOC v. Morgan Stanley & Co., 324 F. Supp. 2d 451 (S.D.N.Y. 2004)........................................................................................ 16 Erikson v. Baxter Healthcare, Inc., 131 F. Supp. 2d 995 (N.D. Ill. 2001) ........................................................................................... 5 Garcia v. Union Labor Life Ins. Co., No. CV 04-0721-WJR (RNBx), 2004 WL 5644436 (C.D. Cal. Nov. 24, 2004)................... 3, 19 Goomar v. Centennial Life Ins. Co., 855 F. Supp. 319 (S.D. Cal. 1994)............................................................................................... 6 Hangarter v. Provident Life and Accident Ins. Co., 373 F.3d 998, 1010 (9th Cir. 2004)............................................................................................ 22 Hebert v. Lisle Corp., 99 F.3d 1109 (Fed. Cir. 1996).................................................................................................... 23 Hemmings v. Tidy-Man's Inc., 285 F.3d 1174 (9th Cir. 2002)................................................................................................ 3, 16 Humphreys v. Regents of the Univ. of Cal., No. C 04-03808 SI, 2006 U.S. Dist. LEXIS 47822 (N.D. Cal. July 6, 2006) ...................... 3, 19 IBM Corp. v. Fasco Indus., Inc., No. C-93-20326 RPA, 1995 WL 115421 (N.D. Cal. Mar. 15, 1995)........................................ 20 In re Ready-Mixed Concrete Antitrust Litig., 261 F.R.D. 154 (S.D. Ind. 2009)................................................................................................ 20 In re REMEC Inc. Sec. Litig., 702 F. Supp. 2d 1202 (S.D. Cal. 2010)...................................................................................... 19
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TABLE OF AUTHORITIES (continued) Page(s) Jones v. Otis Elevator Co., 861 F.2d 655 (11th Cir. 1988)................................................................................................ 8, 16 Kennedy v. Collagen Corp., 161 F.3d 1226 (9th Cir. 1998)...................................................................................................... 3 Kilgore v. Carson Pirie Holdings, Inc., 205 Fed. App'x. 367 (6th Cir. 2006)............................................................................................ 8 Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)................................................................................................................... 11 Lyman v. St. Jude Med. S.C., Inc., 580 F. Supp. 2d 719 (E.D. Wis. 2008)....................................................................................... 14 Matrix Motor Co. v. Toyota Jidosha Kabushiki Kaisha, 290 F. Supp. 2d 1083 (C.D. Cal. 2003) ....................................................................................... 8 Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387 (Fed. Cir. 2003).............................................................................................. 7, 17 Microfinancial, Inc. v. Premier Holidays Int'l, Inc., 385 F.3d 72 (1st Cir. 2004) ........................................................................................................ 16 MMI Realty Servs., Inc. v. Westchester Surplus Lines Ins. Co., No. 07-00466 BMK, 2009 WL 649894 (D. Haw. Mar. 10, 2009) ....................................... 3, 19 Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d 546 (5th Cir. 2004).................................................................................................... 3, 8 QR Spex, Inc. v. Motorola, Inc., No. CV 03-6284-JFW (FMOx), 2004 WL 5642907 (C.D. Cal. Oct. 28, 2004)........................ 14 Regents of the Univ. of Cal. v. Monsanto Co., No. C 04-0634 PJH, 2006 WL 5359055 (N.D. Cal. Feb. 7, 2006)............................................ 23 Salinas v. Amteck of Ky., Inc., 682 F. Supp. 2d 1022 (N.D. Cal. 2010) ....................................................................................... 2 Sommerfield v. City of Chicago, 254 F.R.D. 317 (N.D. Ill. 2008)........................................................................................... 12, 13 Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187 (9th Cir. 2007)................................................................................................ 2, 14 United States v. Grey Bear, 883 F.2d 1382 (8th Cir. 1989).................................................................................................. 6, 7 Vucinich v. Paine, Webber, Jackson & Curtis, Inc., 803 F.2d 454 (9th Cir. 1986).................................................................................................... 6, 7 Walton v. Bridgestone/Firestone, Inc., No. CV-05-3027-PHX-ROS, 2009 U.S. Dist. LEXIS 85014 (D. Ariz. Jan. 16, 2009) ............. 12

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TABLE OF AUTHORITIES (continued) Page(s) Rules Fed. R. Civ. P. 26 ....................................................................................................................... 3, 19 Fed. R. Evid. 401 ........................................................................................................................... 18 Fed. R. Evid. 403 ....................................................................................................................... 5, 18 Fed. R. Evid. 702 ................................................................................................................... 3, 5, 18

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I.

INTRODUCTION Plaintiffs designated Paul C. Pinto to testify solely on so-called "saved development

costs." Defendants designated David P. Garmus and Donald Reifer solely to rebut Pinto. None of these experts are relevant to this case as a result of this Court's August 17, 2010 Order holding that Plaintiffs may not seek damages in the form of "saved development costs" for any cause of action. See D.I. 762 (8/17/10 Order) at 18-23; see also Declaration of Tharan Gregory Lanier in Support of Defs.' Opp. to Pls.' Mot. to Exclude Expert Testimony of David Garmus ("Lanier Decl.") ¶ 1, Ex. 1 (Pls.' Supp. Initial Expert Disclosures) at 3 (Pinto designated solely to "analyze, calculate, and testify to the costs associated with software product development"). Accordingly, Plaintiffs' Motion No. 3 is moot and should be denied, as it seeks to exclude opinions of Garmus that rebut Pinto's now irrelevant opinions on prohibited "saved development costs." Even were Plaintiffs' motion not moot, it should be denied. Defendants' expert Garmus is a highly qualified expert in the field of Function Point Analysis ("FPA"), which is a technique used to size and estimate software. Garmus has been working in the field of software estimation for over 30 years, has been a Certified Function Point Specialist for over 17 years, and was one of the first such specialists to be certified. Garmus is also a member of the International Function Point Users' Group ("IFPUG"), the international professional organization that promulgates standards for FPA. Garmus is a former President of IFPUG and has been a member of IFPUG's Counting Practices Committee from 1990 to the present. In this case, Garmus examines and provides an opinion rebutting Pinto purported use of FPA to estimate saved development costs for two of Plaintiffs' software suites, PeopleSoft and J.D. Edwards EnterpriseOne. Specifically, Garmus notes that Pinto does not engage in a proper FPA per the IFPUG guidelines and that Pinto sizes products and estimates costs Garmus believes should not have been measured using FPA. None of the arguments Plaintiffs offer in support of their motion to exclude Garmus hold any weight. First, Plaintiffs' position that Garmus cannot opine regarding IFPUG standards is incorrect as a matter of law; courts routinely permit expert opinion explaining relevant industry
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standards. To the extent that Plaintiffs challenge certain evidence cited by Garmus as additional support for his opinions regarding Pinto's improper use of "backfiring," such a dispute goes to the weight, not admissibility of Garmus' opinions. Second, Plaintiffs seek to exclude Garmus' opinions on the proper scope of an FPA analysis--specifically, that Pinto should only include in his estimates modules that TomorrowNow, Inc. ("TN") actually used to support its customers. Garmus' opinions on this issue appropriately rebut Pinto's incorrect methodology and are based on sufficient factual data-- spreadsheets detailing comprehensive contract and operational data. At best, Plaintiffs' "evidence" purporting to contradict Garmus' list of modules not serviced by TN goes to the weight of Garmus' opinion, not its admissibility. However, Plaintiffs' "evidence" is all irrelevant to his analysis. Third, contrary to Plaintiffs' assertions, Garmus' exemplary function point counts are admissible rebuttal opinion demonstrating the proper methodology for an FPA that follow the IFPUG standards. Finally, Garmus did not provide an inappropriate legal opinion, but rather opined, based on his industry expertise, that Pinto should not have developed an estimate for replacing the entire software because, inter alia, independently developing the necessary exact copy of the software would have been impossible as a technical matter. II. LEGAL STANDARD When determining admissibility of expert testimony, "the trial court should be mindful that reliability is not determined based on the `correctness of the expert's conclusions but the soundness of his [or her] methodology.'" Salinas v. Amteck of Ky., Inc., 682 F. Supp. 2d 1022, 1030 (N.D. Cal. 2010) (Hamilton, J.) (citing Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1191 (9th Cir. 2007)). Normally, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means" of attacking expert testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993). "[Q]uestions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's
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consideration.' It is the role of the adversarial system, not the court, to highlight weak evidence." Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004) (citations omitted); see also Hemmings v. Tidy-Man's Inc., 285 F.3d 1174, 1188 (9th Cir. 2002) ("[O]bjections to the inadequacies of a study [such as the failure to consider all possible variables] are more appropriately considered an objection going to the weight of the evidence rather than its admissibility. . . ."); Kennedy v. Collagen Corp., 161 F.3d 1226, 1230-31 (9th Cir. 1998). Failure to include certain information in an analysis affects the weight, not the admissibility, of expert testimony. See, e.g., Bazemore v. Friday, 478 U.S. 385, 400 (1986) ("Normally, failure to include variables [in an analysis] will affect the analysis' probativeness, not its admissibility."). Experts may opine regarding applicable industry standards because "Fed. R. Evid. 702 permits expert testimony comparing the conduct of parties to the industry standard." See, e.g., Davis v. Mason County, 927 F.2d 1473, 1485 (9th Cir. 1991). Moreover, rebuttal expert testimony is that which "is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B)." See Fed. R. Civ. P. 26(a)(2)(C) (emphasis added); Garcia v. Union Labor Life Ins. Co., No. CV 04-0721-WJR (RNBx), 2004 WL 5644436, at *2 (C.D. Cal. Nov. 24, 2004). Thus, expert testimony using a different technique or discussing a different issue is proper rebuttal, where that opinion "expose[s] a potential flaw in [affirmative expert's] method" or otherwise refutes the subject matter of the affirmative expert's analysis. See, e.g., Humphreys v. Regents of the Univ. of Cal., No. C 04-03808 SI, 2006 U.S. Dist. LEXIS 47822, at *17-18 (N.D. Cal. July 6, 2006); MMI Realty Servs., Inc. v. Westchester Surplus Lines Ins. Co., No. 07-00466 BMK, 2009 WL 649894, at *2 (D. Haw. Mar. 10, 2009). III. PLAINTIFFS' MOTION IS MOOT IN LIGHT OF THIS COURT'S ORDER Plaintiffs' motion is moot and should be denied because it concerns expert opinions rebutting Pinto's calculation of now prohibited "saved development costs." Plaintiffs admit that Pinto measures "the amount that SAP would have spent to develop software of similar functionality to what it [allegedly] infringed here." D.I. 767 (Garmus Mot.) at 1. This Court held that such damages are unavailable in this case as a matter of law and excluded Plaintiffs from seeking saved development costs for any cause of action. See D.I. 762 (08/17/10 Order) at 18-23.
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Because Pinto's opinions on saved development costs are irrelevant, Plaintiffs' motion regarding Garmus' rebuttal of Pinto is moot. See D.I. 774 (Defs.' Mot. to Exclude Paul C. Pinto) at 3. IV. GARMUS' REBUTTAL OPINIONS REGARDING PROPER IFPUG STANDARDS AND TECHNIQUES ARE RELEVANT AND ADMISSIBLE Were Pinto's opinions not moot, Garmus could properly opine about IFPUG standards based on his expertise and previous experience. Such testimony would be relevant to the issues presented and would be helpful for a jury. Plaintiffs' arguments to the contrary fail. A. Pinto's Purported Use of FPA and Garmus' Rebuttal.

Pinto purports to develop an estimate of "the amount that SAP would have spent to develop software of similar functionality to what it [allegedly] infringed here." D.I. 767 (Garmus Mot.) at 1. Pinto claims to use FPA in his analysis of two software suites, PeopleSoft and J.D. Edwards EnterpriseOne, and Garmus, as a function point expert, evaluates and rebuts Pinto's purported FPA. See Lanier Decl. ¶¶ 2-3, Ex. 2 (Pinto Report) at 8, 11; Ex. 3 (Garmus Report). To bolster his claim that FPA was an appropriate methodology, Pinto explicitly references and relies upon IFPUG, "a non-profit, member-governed organization [that] provides a measurement technique called Function Point Analysis ("FPA")." Lanier Decl. ¶ 2, Ex. 2 (Pinto Report) at 11. IFPUG's Counting Practices Committee propounds the standards that govern FPA, and, logically, Pinto relies on one of their manuals as a source for his analysis. Id. at 17 n.3. Garmus, an industry veteran and current member of the Counting Practices Committee, examined Pinto's Report and determined that Pinto had not engaged in a proper FPA under the IFPUG guidelines (or any other industry-recognized guidelines or standards). See Lanier Decl. ¶ 3, Ex. 3 (Garmus Report) at 17. Garmus points to many of Pinto's steps or techniques that, in his considerable experience, are not IFPUG-compliant. Id. at 15-17, 21-28. Plaintiffs have not, and cannot, attack Garmus' credentials as an expert in FPA, given his over thirty years experience in the field of software estimation; over 17 years as an IFPUG Certified Function Point Specialist; previous leadership positions at IFPUG, including as former President of the organization; and membership on the IFPUG Counting Practices Committee from 1990 to the present. See Lanier Decl. ¶¶ 3, 8, Ex. 3 (Garmus Report) at 2-3; Ex. 8 (Appendix A
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to Garmus Report). Indeed, Plaintiffs would be hard-pressed to attack his qualifications, as Pinto himself relies on a document Garmus co-authored. See Lanier Decl. ¶ 4, Ex. 4 (ORCLX-PIN000007, Counting Practices Manual) at Documentation Team page. Instead, Plaintiffs seek to prevent Garmus from mentioning IFPUG or providing his expert opinions on what techniques IFPUG approves and disapproves. See D.I. 767 (Garmus Mot.) at 22-23. Plaintiffs may wish to do so because IFPUG disapproves of the "backfiring" technique Pinto used in his report--which disapproval Pinto himself admitted--and Plaintiffs presumably do not want the jury to hear that testimony. See Lanier Decl. ¶¶ 2, 5, Ex. 5 (Pinto Tr.) at 221:17-23 (stating "[i]t's my understanding as reported that IFPUG does not sanction backfiring"), 212:12-17 (stating that he "know[s] of no certified function point [counters] who perform backfiring"); Ex. 2 (Pinto Report) at 17 (Pinto employs "a process known as Backfiring"). However, Plaintiffs' scatter-shot of arguments against the admissibility of Garmus' opinions about IFPUG all fail. B. Garmus' Rebuttal Opinions Regarding IFPUG Standards Are Permissible and Relevant in Light of Garmus' Extensive Experience.

First, Plaintiffs are incorrect when they argue that Garmus' opinions regarding IFPUG standards are unreliable, unhelpful, and misleading. D.I. 767 (Garmus Mot.) at 22.1 Experts can opine on industry standards; it is the province of expert testimony to do so. See, e.g., Davis, 927 F.2d at 1485 (holding "Fed. R. Evid. 702 permits expert testimony comparing the conduct of parties to the industry standard"); Erikson v. Baxter Healthcare, Inc., 131 F. Supp. 2d 995, 1001 (N.D. Ill. 2001) (allowing expert testimony regarding relevant industry standards based on expert's experience and knowledge alone because "[e]xperts have knowledge of the standards that govern their fields--that is in part what qualifies them as experts"); Callaway Golf Co. v. Screen Actors Guild, Inc., No. 07CV0373-LAB (WMc), 2009 WL 5125603, at *3 (S.D. Cal. Dec. 18, 2009) (holding expert opinion admissible when "based on [expert's] experience and In conjunction with Plaintiffs' Rule 702 arguments, Plaintiffs also sprinkle Rule 403 challenges throughout their motion. See D.I. 767 (Garmus Mot.) at 4, 19, 20, 23, 24. For reasons stated throughout this opposition, all of Garmus' opinions are relevant and will assist the trier of fact. Further there is nothing unhelpful or misleading in allowing Garmus to opine on Pinto's methodology. In fact, it will be Defendants who are prejudiced if Pinto is permitted to offer his own overreaching conclusions and Garmus is not allowed to rebut those conclusions by identifying flaws in Pinto's analysis.
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observation" in the industry). As an industry veteran and expert on the topic, Garmus' testimony regarding IFPUG's standards for conducting an FPA is relevant and will be helpful to the jury as it considers the validity of Pinto's purported use of FPA, providing the jury with invaluable insight into a specialized field. See Vucinich v. Paine, Webber, Jackson & Curtis, Inc., 803 F.2d 454, 461 (9th Cir. 1986) (testimony regarding rules of the stock exchange was admissible and highly relevant on the issue of standards governing brokers). In other words, Garmus' expert opinion regarding IFPUG's standards is not misleading; it is not confusing--it is his job. Further, given Garmus' unchallenged expertise and experience in FPA and in IFPUG leadership positions, his opinion about IFPUG's standards is not speculation, but is a product of this expertise. See Callaway, 2009 WL 5125603, at *3 (holding opinion that was "obviously based on [expert's] experience" was not lacking in factual basis). Plaintiffs' authority regarding speculative expert testimony is inapposite as it deals with a specialized form of impermissible speculation. See Goomar v. Centennial Life Ins. Co., 855 F. Supp. 319, 326 (S.D. Cal. 1994) (concerning the special case of psychiatrists attempting to provide a speculative, retrospective diagnosis of mental illness). Additionally, Garmus' testimony about the IFPUG standards would not introduce the opinions of experts not present in the courtroom, as Plaintiffs erroneously insist. See D.I. 767 (Garmus Mot.) at 22. Rather, Garmus would simply provide insight into the approved methodology for FPA, as set out by IFPUG, a standards-setting organization--one on which Pinto relied in his own report. See Lanier Decl. ¶ 2, Ex. 2 (Pinto Report) at 11. Plaintiffs' authority on this point is completely irrelevant because it does not concern expert testimony regarding a similar standards-setting body and that body's standards; it only precludes reference to undisclosed individual experts to falsely bolster the credibility of an expert's opinion. See United States v. Grey Bear, 883 F.2d 1382, 1392-93 (8th Cir. 1989) (holding an assertion that statements regarding whether particular individuals "corroborate" the expert's opinion was inadmissible). Further, Plaintiffs' argument that Garmus' opinions are unreliable because no one from IFPUG "approved" his report is illogical and inconsistent. See D.I. 767 (Garmus Mot.) at 4, 22.
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As discussed above, it is the province of experts to opine on industry standards, and that is what Garmus has done in this case. See, e.g., Davis, 927 F.2d at 1485; Vucinich, 803 F.2d at 461. Moreover, as Plaintiffs took pains to point out in their own motion, experts generally are not permitted to testify that some other individual--such as the hypothetical IFPUG member proposed by Plaintiffs--"corroborated" or approved that expert's opinions. Grey Bear, 883 F.2d at 1392-93. It entirely defeats the purpose of expert testimony to require legions of experts to "approve" or double-check testifying experts' opinions.2 Plaintiffs' self-serving reliance on Pinto's recently acquired IFPUG membership is, at best, irrelevant to the motion at hand. See D.I. 767 (Garmus Mot.) at 23 ("Pinto is part of the IFPUG membership, and certainly does not agree with Garmus."). Putting aside the fact that Pinto only joined IFPUG in April 2010 after he submitted his report and in response to criticisms about his credentials (see Lanier Decl. ¶¶ 5-6, Ex. 6 (ORCLX-PIN-000111); Ex. 5 (Pinto Tr.) at 103:6-21), his criticism of Garmus at most merely demonstrates that these two individuals disagree on the proper standards for an FPA. Plaintiffs could raise this disagreement during their crossexamination of Garmus, but it does not speak to Garmus' expertise to opine, based on his extensive IFPUG experience, that IFPUG and IFPUG-certified function point counters do not endorse certain practices like backfiring. See Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1394 (Fed. Cir. 2003) (holding expert testimony was properly admitted where it was a "classic example of competing experts"). C. Garmus' Reliance on IFPUG Bulletin Board Posts as Examples of Further Criticisms of "Backfiring" Are Relevant, and Plaintiffs' Criticisms at Best Go to the Weight of This Evidence.

Finally, Plaintiffs' arguments regarding the IFPUG bulletin board posts Garmus includes as additional evidence of the inappropriateness of "backfiring" lack merit. See D.I. 767 at 22-23. First, Plaintiffs appear to imply that these posts form the entire basis of Garmus' opinions Furthermore, Garmus, like all experts, is subject to the Protective Order in this case. See D.I. 32 (Stipulated Protective Order). His report discusses materials designated by Plaintiffs as Confidential and Highly Confidential ­ Attorneys Eyes Only. Presumably had Garmus reached out to individuals at IFPUG not covered by the Protective Order to show them his report or have them "approve" it, Plaintiffs would now be accusing Defendants and Garmus of violating the Protective Order.
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regarding "backfiring," but this is factually incorrect. Garmus first states in a separate section of his report that IFPUG takes an official position against "backfiring." Lanier Decl. ¶ 3, Ex. 3 (Garmus Report) at 17. He properly provides this opinion based on his experience. Only then does Garmus note that, additionally, "[i]t is not only IFPUG itself" that disagrees with Pinto's use of backfiring, but individuals appear to as well, and provide exemplary posts to IFPUG bulletin boards that discuss backfiring with disapproval and skepticism. Id. at 17-20. Therefore, contrary to Plaintiffs' insinuations, Garmus clearly identifies these posts as merely further support for his larger position that IFPUG standards do not permit backfiring--a position which Garmus is eminently qualified to offer. Second, to the extent that Plaintiffs disagree with Garmus' use of these bulletin board posts to support his opinion regarding the impropriety of "backfiring," this concern goes to the weight, not admissibility, of Garmus' opinion. See Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1262-63 (9th Cir. 2001) (holding that faults in methodology and calculations and critiques of conclusions go to weight, not admissibility, of expert opinions); Primrose Operating, 382 F.3d at 562 ("[A]s a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration."); Jones v. Otis Elevator Co., 861 F.2d 655, 662-63 (11th Cir. 1988) (holding that, where expert testified based on over 30 years of experience, "the weaknesses in the underpinnings of the expert's opinion go to its weight rather than its admissibility. On cross-examination, the opposing counsel is given the opportunity to ferret out the opinion's weaknesses to ensure the jury properly evaluates the testimony's weight and credibility."). Moreover, Plaintiffs' reliance on cases excluding experts for exclusively citing to internet articles is misplaced. For example, in Kilgore the expert at issue had utterly no qualifications in the relevant field, had conducted no research on the topics, and the sole basis for his opinion was an online article. Kilgore v. Carson Pirie Holdings, Inc., 205 Fed. App'x. 367, 371-72 (6th Cir. 2006). Similarly, in Matrix Motor, the expert at issue opined on "actual confusion" of two trademarks and used internet articles as the only support for the proposition that consumers had, as a factual matter, been actually confused. Matrix Motor Co. v. Toyota Jidosha Kabushiki
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Kaisha, 290 F. Supp. 2d 1083, 1086 (C.D. Cal. 2003). In contrast to both situations, Garmus has significant experience in the field of FPA, which experience undergirds his opinions, and these allegedly objectionable posts merely serve as illustrations of the standards that are already properly within the scope of his expertise. V. GARMUS' REBUTTAL OPINIONS REGARDING THE PROPER SCOPE OF AN FPA ANALYSIS ARE ADMISSIBLE Plaintiffs' arguments about Garmus' rebuttal opinions on the improper scope of Pinto's analysis fail for two reasons. First, Plaintiffs miss the point of Garmus' opinions on the software used by TN; as a rebuttal expert, he opines on a deficiency in Pinto's analysis--that Pinto fails to properly consider the "scope" of his purported FPA in measuring entire software suites. Second, Plaintiffs' extensive discussion of the materials they believe Garmus should have considered: (1) ignores the legitimate materials Garmus did consider, (2) cites material that is irrelevant to Garmus' opinion, and, (3) at best, goes to the weight of Garmus' opinion, not its admissibility. Plaintiffs are free to cross-examine Garmus at trial about the materials he considered. A. Garmus' Rebuttal Opinions Properly Criticize Pinto's Methodology.

One of the many deficiencies Garmus notes in Pinto's purported FPA is his improper sizing of entire suite of products. Lanier Decl. ¶ 3, Ex. 3 (Garmus Report) at 9. When engaging in an FPA of a software program, one must determine the "scope" of the software that should be measured. See Lanier Decl. ¶ 4, Ex. 4 (ORCLX-PIN-00007, Function Point Counting Practices Manual) at 2-5 ("[t]he counting scope defines the functionality which will be included in a particular function point count"). In other words, one has to first determine how much of the software to size. In the case of the PeopleSoft and J.D. Edwards EnterpriseOne software suites, the suite as a whole is given a number called the "release level" that indicates the version of the software.3 That suite is comprised of smaller "modules" or "applications,"4 and these individual Pinto purports to analyze the 8.12 release level of J.D. Edwards EnterpriseOne. The PeopleSoft suite Pinto purports to analyze is broken down into five large product lines, each at a different release level: Customer Resource Management 8.8, Human Resource Management 8.8, Financial Supply Chain Management 8.4, Student Administration 8.0, and Enterprise Performance Management 8.8 (collectively, "PeopleSoft 8.x"). 4 The various product lines of PeopleSoft 8.x are further broken down into the "modules" or "applications" that were individually licensed by customers.
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modules are what customers license. In his analysis, Pinto measures the entire PeopleSoft and J.D. Edwards software suites at a particular release level, without considering whether TN actually used all of the modules contained within those suites. See Lanier Decl. ¶ 2, Ex. 2 (Pinto Report) at 10 (listing the releases he reviewed), 14-15 (stating that "[t]he entire set of software components was reviewed."). In other words, the "scope" of Pinto's purported FPA is the entire program, and it is this improper "scope" that Garmus attacks as faulty. Garmus opines that the proper scope of an FPA estimate should only include the modules that an entity would use because that is the only software it would pay to build. See Lanier Decl. ¶¶ 3, 7, Ex. 3 (Garmus Report) at 1, 9 (opining that Pinto should not size "applications that were not utilized by TN in the course of TN's business"); Ex. 7 (Garmus Tr.) at 117:4-8 ("I assume that TomorrowNow was supporting a particular customer base and they didn't have need for software or documentation for applications for which they were not providing support."). Logically, no reasonable entity would pay to develop software its customers did not use and therefore it did not need. Plaintiffs have not challenged this opinion, instead devoting a substantial portion of their brief attempting to debunk the list of modules Garmus states TN would not have used. See D.I. 767 (Garmus Mot.) at 10-18. However, Garmus' basic criticism of Pinto's methodology remains unchallenged: that Pinto does not consider the appropriate scope when choosing to size entire software suites because, among other things, he failed to investigate whether TN used all the modules in those suites.5 B. Garmus' Rebuttal Opinions Have Sufficient Factual Support.

Garmus' opinion regarding the proper "scope" of an FPA analysis has adequate factual support because (1) Garmus relies on his considerable experience and knowledge, and (2) Garmus analyzes relevant, reliable information to determine which products TN serviced. First, Garmus opines that the proper "scope" of an FPA would only include the modules TN actually used for servicing its customers. Lanier Decl. ¶ 3, Ex. 3 (Garmus Report) at 1, 9. Garmus made this determination in reliance on his considerable experience in FPA and software Plaintiffs' bare assertion that Pinto's estimates were "conservative" (D.I. 767 (Garmus Mot.) at 9) does not reach the question of whether Pinto properly scoped his FPA of the PeopleSoft and J.D. Edwards EnterpriseOne releases that he actually measured.
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valuation. See id. at 2-3; Lanier Decl. ¶ 8, Ex. 8 (Appendix A to the Garmus Report). Garmus' reliance on his experience and expertise is entirely appropriate. See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156 (1999) ("no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience"). Moreover, Garmus states that, in his experience, most users of a particular software suite do not use every module contained within that suite--a position Plaintiffs do not appear to challenge. See Lanier Decl. ¶ 3, Ex. 3 (Garmus Report) at 10 ("in my experience, most users of PeopleSoft, JD Edwards and Siebel software do not utilize much of the functionality"). For this reason, Garmus investigated which modules TN would have needed to service its customers. See id. He opines that Pinto should not include in his FPA estimate any modules TN did not service because TN would never have developed modules it did not use. See id. at 10-14; see also Lanier Decl. ¶ 7, Ex. 7 (Garmus Tr.) at 117:4-8.) And, to this end, Garmus provides a list of modules Pinto should exclude from his estimates. Id. Plaintiffs' primary challenge is to this list, claiming, inter alia, that Garmus is not an expert on TN's business model. However, the relevant inquiry is whether Garmus, an undisputed expert in FPA expressing an opinion about the proper scope of an FPA, reviewed sufficient data to determine the modules that should not have been included in Pinto's FPA estimate. Contrary to Plaintiffs' assertions, Garmus relies on sufficient data to determine which modules Pinto should exclude from his analysis. Most of Plaintiffs' argument details other materials Plaintiffs believe Garmus should have also reviewed, but Plaintiffs only acknowledge in passing the materials he did review. See D.I. 767 (Garmus Mot.) at 11-12. In order to determine which modules TN serviced, Garmus relies on two comprehensive sources of information: Appendix L to the Expert Report of Stephen K. Clarke ("Appendix L") and two exports from TN's SAS Database. See Lanier Decl. ¶ 3, Ex. 3 (Garmus Report) at 4. Appendix L is a compilation of data detailing contract data for all of TN's customers, including information about all the modules TN contracted to service. See Lanier Decl. ¶ 9, Ex. 9 (Appendix L) at column J.6 Because customers licensed their software on a module basis, TN entered into service agreements covering those modules that the customer licensed. The modules for which each customer contracted comprises the data listed in column J of Appendix L.
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Appendix L contains over 3300 rows of factual data drawn directly from TN's customer contracts. See id. The exports from TN's SAS database include data that TN recorded as part of its day-today business activities--including which modules TN used to support each customer. See Lanier Decl. ¶¶ 10-13, Ex. 10 (TN-OR06515453)7; Ex. 11 (TN-OR06515454)8; Ex. 12 (12/6/07 S. Nelson Tr.) at 82:22-83:1 ("Q. Which -- what material does that include that's manually kept in sync between SAS and dotProject? A. A customer's maintenance end date, the customer's name, the release level, the product lines and products that they have signed up for support.") (emphasis added); Ex. 13 (Def. TN's 8th Am. and Supp. Resp. to Oracle Corp's First Set of Interrogs.) at 13 ("TomorrowNow points Plaintiffs to the SAS database, which is a tool TomorrowNow used to chronicle its business efforts to service clients."). After reviewing these comprehensive lists of all the PeopleSoft and J.D. Edwards EnterpriseOne modules for which TN contracted to service or recorded in SAS as servicing, Garmus compared this data to the list of modules Plaintiffs' asserted actually comprises the PeopleSoft and J.D. Edwards EnterpriseOne software suites. See Lanier Decl. ¶ 3, Ex. 3 (Garmus Report) at 10 (reviewed Plaintiffs' response to Interrogatory No. 13); see also D.I. 775-15 (Pls.' Fifth Am. and Seventh Supp. Resp. and Objs. to Def. TN's Interrog. No. 13) (listing the modules contained in each of the registered works at issue). From this, Garmus determined which modules TN apparently did not service, and therefore, those modules that he believes Pinto should exclude from his FPA. See Lanier Decl. ¶ 3, Ex. 3 (Garmus Report) at 9-14. Given the comprehensive nature of those spreadsheets, and particularly the fact that the SAS spreadsheets include TN's business records, Garmus' use of these materials is permissible and reliable. See, e.g., Walton v. Bridgestone/Firestone, Inc., No. CV-05-3027-PHX-ROS, 2009 U.S. Dist. LEXIS 85014, at *33 (D. Ariz. Jan. 16, 2009) (holding expert "not required to conduct independent testing or firsthand inquiry to satisfy Daubert; he may rely on compiled data or other secondhand reports"); cf. Sommerfield v. City of Chicago, 254 F.R.D. 317, 322 (N.D. Ill. 2008) (discussing the reliability of business records in the course of discussing the data on which an expert might
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appropriately rely). Other than noting that Garmus received Appendix L and the SAS spreadsheets from counsel (which is, of course, permissible), Plaintiffs do not challenge the reliability of the data contained within those compilations. See D.I. 767 (Garmus Mot.) at 11-12. Plaintiffs' attempted characterization of Appendix L and the SAS spreadsheets as propounding the "view" of counsel is without merit. See D.I. 767 (Garmus Mot.) at 12-13. As demonstrated above, the sources used by Garmus in his analysis were comprehensive spreadsheets of objective data; neither source was created by counsel or involved editorial discretion. For example, the SAS spreadsheets were extracted directly from the database in which TN employees (not counsel) inputted customer information; the SAS database was produced to Plaintiffs in this case. Lanier Decl. ¶ 12, Ex. 12 (12/6/07 S. Nelson Tr.) at 82:2283:1. These spreadsheets of exported data were also separately produced to Plaintiffs during discovery. See Lanier Decl. ¶¶ 10-11, Ex. 10 (TN-OR06515453); Ex. 11 (TN-OR06515454). Similarly Appendix L is a factual compilation of contract data that is an appendix to Defendants' damages expert report. It merely lists objective data found in TN's contracts, such as customer names, dates, amounts, and modules. See Lanier Decl. ¶ 9, Ex. 9 (Appendix L). The fact that these documents were conveyed to Garmus through counsel is neither relevant nor surprising. Counsel routinely provides materials requested by expert witnesses for use in their analysis, as when, for example, Plaintiffs' counsel provided Pinto with the software that Pinto sized. See Lanier Decl. ¶ 5, Ex. 5 (Pinto Tr.) 43:3-5 (regarding the files he sized, Pinto stated "So these [files] came to me from Bingham on hundred meg external drives."). Plaintiffs' authority is inapposite. In the cases excluding experts for relying on summaries provided by counsel, the materials presented real reliability issues not found here. Either the attorneys drafted the objectionable summaries, and the selective nature of the included information rendered those summaries unreliable, see Crowley v. Chait, 322 F. Supp. 2d 530, 542, 546 (D.N.J. 2004) (finding expert's reliance on selected excerpts of 8 out of 150 depositions unreliable); Sommerfield, 254 F.R.D. at 322 (finding that a 26-page summary of 2,649 pages of testimony that also entirely excluded other deposition testimony was not reliable because the party had likely been "selective[]" in what was included), or the source of the data was simply
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unverified. See Lyman v. St. Jude Med. S.C., Inc., 580 F. Supp. 2d 719, 726 (E.D. Wis. 2008). Counsel did not create the spreadsheets at issue, and similar reliability issues are not present here. The source of the data is clear, and it is comprehensive in nature, detailing information about all of TN's contracts and operational data related to all of TN's customers serviced on the relevant software suites. Plaintiffs' reliance on QR Spex is similarly misplaced, as the excluded expert relied solely on images from a press release and online articles to determine the underlying "facts" for his report, which facts were thereafter directly contradicted. See QR Spex, Inc. v. Motorola, Inc., No. CV 03-6284-JFW (FMOx), 2004 WL 5642907, at *9 (C.D. Cal. Oct. 28, 2004). Garmus' opinion does not rely on news articles or similar sources, and the facts underlying his report have not been directly refuted. See infra Section III.C. Finally, the gravamen of Plaintiffs' lengthy section on this topic appears to be Plaintiffs' belief that Garmus' opinions are incorrect. See D.I. 767 (Garmus Mot.) at 12. However, the test for reliability under Daubert "is not the correctness of the expert's conclusions but the soundness of his methodology." Stilwell, 482 F.3d at 1191 (citing Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1318 (9th Cir. 1995)). C. Materials Plaintiffs Believe Garmus Should Have Reviewed Are Not Relevant to His Analysis.

Plaintiffs cite a slew of "evidence" they assert contradicts Garmus' opinions on the specific modules TN did not service and that Plaintiffs contend Garmus should have considered. D.I. 767 (Garmus Mot.) at 13-18. Although Plaintiffs' argument overlooks the larger point that Pinto should have at least considered the issue of what TN actually needed to use to service its customers, the argument is also incorrect. The sources identified by Plaintiffs do not prove what Plaintiffs assert and are not relevant to Garmus' analysis. Plaintiffs identify the following evidence purporting to "contradict" Garmus' opinions listing the modules TN did not use: (1) a press statement and other high level statements regarding SAP's positions on liability; (2) excerpts from Plaintiffs' expert Kevin Mandia's report regarding certain software copies at TN; (3) an instant message discussing at the release level (not the module level) the software a TN employee claimed to be using "in a shed behind [his] house";
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(4) high level statements regarding the presence of downloaded fixes and updates on TN's computers (statements such as "TN used information downloaded from the Oracle Websites to help support customers in competition with Oracle."); (5) libraries of documentation--not software--on TN's systems; and (6) advertising statements by TN employees regarding the potential services that TN might be able to provide (not what TN actually did provide). D.I. 767 (Garmus Mot.) at 13-18. This "evidence" is irrelevant to Garmus' opinions because it does not relate to his central point: that the only modules Pinto should have sized were those modules TN actually would have used to support its customers. For example, high level statements by SAP in the press or in its trial brief regarding liability-related litigation decisions say nothing about which modules TN used to support its customers; neither do high level statements that TN downloaded unspecified "information" from Oracle's websites. Analogously, evidence regarding libraries of documentation does not establish the modules of software that TN was actually using. So, too, statements TN made in its advertising describing the software and releases TN could service say nothing about the specific modules TN did service. Having the capability to do something and actually doing it are two different things; accordingly, Garmus reviewed records of what TN actually did. See Lanier Decl. ¶¶ 9-11, Ex. 9 (Appendix L); Ex. 10 (TN-OR06515453); Ex. 11 (TN-OR06515454). Similarly, statements regarding which software release levels a TN employee claimed to be running "in a shed behind [his] house" do not speak to the modules TN actually serviced. D.I. 767 (Garmus Mot.) at 14-15. While Defendants do not believe TN ever had these releases, a statement regarding the installation of "8.12" release level of J.D. Edwards EnterpriseOne says nothing about which modules from 8.12 were installed, and it is the modules that TN did not use that Garmus discusses. Id. Plaintiffs wish for the reader to assume all modules were installed, but the instant message cited provides no evidence of this. See id. Indeed, as Garmus notes, in his considerable industry experience, most users do not utilize all of the capability for any given release level. See Lanier Decl. ¶ 3, Ex. 3 (Garmus Report) at 10. Finally, evidence of unspecified stray copies of installation CDs or backup environments
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again says little to nothing about what modules TN needed and actually used to service its customers, and thus, says nothing about which modules Pinto should size. See D.I. 767 (Garmus Mot.) at 14; D.I. 768-6 (Ex. F to Alinder Decl. in Support of the Garmus Mot.) at 61, 72. Plaintiffs are certainly free to disagree that the relevant analysis for an FPA estimate in this matter asks which modules TN would have used to service its customers, but this disagreement does not change Garmus' opinion that this was the proper approach. D. Concerns Regarding Evidence Garmus Considered Go To Weight, Not Admissibility, of His Opinions.

To the extent Plaintiffs contend that Garmus could have also considered certain materials, that is an issue of weight not admissibility. Plaintiffs do not directly challenge the reliability of the data contained in either Appendix L or the SAS spreadsheets, but merely assert that Garmus should have looked at more materials. D.I. 767 (Garmus Mot.) at 13-18. Courts routinely hold that such concerns affect the weight of expert opinion, not its admissibility, and can be properly addressed during cross-examination. See Bazemore, 478 U.S. at 400 ("Normally, failure to include variables [in an analysis] will affect the analysis' probativeness, not its admissibility."); Hemmings, 285 F.3d at 1188 ("objections to the inadequacies of a study [such as the failure to consider all possible variables] are more appropriately considered an objection going to the weight of the evidence rather than its admissibility"); Jones, 861 F.2d at 662-63 (holding that, where expert was testifying based on over 30 years of experience, "the weaknesses in the underpinnings of the expert's opinion go to its weight rather than its admissibility. On crossexamination, the opposing counsel is given the opportunity to ferret out the opinion's weaknesses to ensure the jury properly evaluates the testimony's weight and credibility.") (citations omitted); Microfinancial, Inc. v. Premier Holidays Int'l, Inc., 385 F.3d 72, 81 (1st Cir. 2004) (holding that objection regarding scope of expert's investigation went to weight, not admissibility, of testimony, even where an expert only looked at bank records supplied by plaintiff and was not informed by the activity taking place in all of the relevant accounts); EEOC v. Morgan Stanley & Co., 324 F. Supp. 2d 451, 458-60 (S.D.N.Y. 2004) (holding that questions about whether expert considered the proper variables, sample size, or information went to weight not admissibility of that opinion,
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and thus such questions were better left to juries). All of Plaintiffs' concerns about which materials Garmus did and did not review can be addressed during cross-examination. E. Plaintiffs' Arguments Attacking Clarke's Reliance on Garmus Lack Merit.

Finally, Plaintiffs' argument that Defendants' damages expert, Stephen K. Clarke, should be prohibited from relying on Garmus fails for two reasons. First, Plaintiffs' motion confuses Garmus with one of Defendants' other experts, misstating how Clarke utilized Garmus' opinions. In their motion, Plaintiffs assert that Clarke "relies on Garmus' erroneous and unreliable opinions on the scope of [TN]'s infringing use to reduce Oracle's damages by excluding customers from damages who Garmus . . . . identified as having no infringing use." D.I. 767 (Garmus Mot.) at 19. Plaintiffs are incorrect. Garmus does not opine regarding customers with "no infringing use"; Defendants' expert Stephen Gray does. See Lanier Decl. ¶ 16, Ex. 16 (Clarke Report) at 216-17 ("I understand Defendants' expert, Mr. Gray, analyzed Mr. Mandia's report and analysis regarding the conclusions referenced above and Mr. Gray determined that even assuming Mr. Mandia is correct the accused conduct does not apply to all of TomorrowNow's customers. Accordingly, I have excluded them from the disgorgement analysis . . . .") (emphasis added), 224 (same statement regarding exclusion of certain customers from Clarke's lost profits analysis), 248 ("Analysis [by Gray] shows there were numerous customers that were not the recipient or beneficiary of any of the accused activity identified by Mr. Mandia."), 248 n.1117. Clarke's reliance on Garmus is limited to providing a high level critique of Meyer's cost approach. See, e.g., id. at 58 (relying on Garmus to state only that Meyer "should have reduced his Value of Use" based on the fact that TN only used a subset of the software to service its customers). Second, as demonstrated above, Garmus' opinions regarding the proper scope of an FPA analysis and about the modules used by TN to service customers are admissible. Therefore, Clarke's limited reliance on these opinions is permissible. That Plaintiffs disagree with Garmus' interpretation of the facts--and thereby those of Clarke based on Garmus'--is of no event. See, e.g., Micro Chem., 317 F.3d at 1392 (upholding introduction of expert testimony regarding a reasonable royalty calculation where "the trial court properly did not rule inadmissible [a party's
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expert] damages testimony simply because it was based on [that party's] version of the contested facts."). VI. GARMUS' EXEMPLAR FUNCTION POINT COUNTS ARE RELEVANT AND PROPER REBUTTAL OPINIONS Plaintiffs' criticisms of Garmus' exemplar function point counts, which comply with IFPUG guides, are without merit. Garmus' counts are proper rebuttal opinions and are relevant to demonstrate the correct procedure for an FPA. In response to Pinto's improper FPA, which fails to apply proper IFPUG standards, Garmus performed two exemplar function point counts to demonstrate the correct process. See Lanier Decl. ¶ 3, Ex. 3 (Garmus Report) at 27-28. He analyzed user documentation for one PeopleSoft module and one J.D. Edwards module and performed the recognized IFPUG steps to develop accurate function point counts. See id. These counts took him, a Certified Function Point Specialist, less than two days each to complete. See Lanier Decl. ¶ 7, Ex. 7 (Garmus Tr.) 31:24-32:2; 43:25-44:2. Plaintiffs now seek to exclude these counts as irrelevant and improper rebuttal opinions, but Plaintiffs are incorrect in both respects. First Garmus' counts are relevant under Federal Rules of Evidence 702, 401, and 403 because they provide an example to the Court and jury of what steps would have been included in a proper FPA, in comparison to Pinto's faulty approach. Moreover, these counts demonstrate Garmus' expertise in the subject area, and conversely, Pinto's lack of expertise. Because Garmus' counts are exemplars of the proper methodology, it is of no moment that the modules he used were not contained in the same release levels sized by Pinto. Moreover, Plaintiffs' suggestion that Garmus' exemplar counts are irrelevant because they provide a "size" and not a "cost" of software is both immaterial and baffling. In order to do an FPA, one first must size the application, as Pinto himself states. See Lanier Decl. ¶ 2, Ex. 2 (Pinto Report) 7-8 ("I created an estimated cost of development for JD Edwards EnterpriseOne and PeopleSoft applications, using Function Point Analysis. This method of analysis is focused on assessing the size of a software product, in normalized terms that are directly related to the amount of business functionality provided to the end-user of the application."). That size is then used to develop the estimated cost.
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See id. Thus, if the size is improperly estimated, the estimated cost will also be incorrect. To argue that a rebuttal expert may not opine about the flaws in one portion of an expert's methodology because that portion is not the final output is illogical. Second, Garmus' exemplar counts are not improper "affirmative" opinions as Plaintiffs suggest. See D.I. 767 (Garmus Mot.) at 20-22. Expert opinions are proper "rebuttal" opinions when the rebuttal expert opines on the same "subject matter" as the affirmative expert. See Fed. R. Civ. P. 26(a)(2)(C) (expert opinion is rebuttal "if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B)") (emphasis added); Garcia, 2004 WL 5644436, at *2 ("Rule 26(a)(2)(C) only requires that rebuttal expert testimony serve to contradict or rebut evidence on the same subject matter.") (emphasis in original). In this case, Pinto claims to use FPA. Lanier Decl. ¶ 2, Ex. 2 (Pinto Report) at 8. Garmus opines that Pinto does not properly perform FPA and demonstrates what Pinto should have done. See Lanier Decl. ¶ 3, Ex. 3 (Garmus Report) at 27-28. Such an opinion clearly concerns the "same subject matter"--FPA--as Plaintiffs' expert opinion, and thus constitutes proper rebuttal opinion. See MMI Realty Servs., 2009 WL 649894, at *2 (finding that a rebuttal expert is "free to support his opinions with evidence not cited in [affirmative] expert reports so long as he rebuts the `same subject matter' identified in those reports" and holding that the rebuttal expert's discussion of categories and guidelines not found in affirmative report were proper to refute affirmative experts' overall analysis) (citing Fed. R. Civ. P. 26(a)(2)(C)(ii)). Moreover, courts routinely find that expert opinions are properly "rebuttal" opinions when the expert engages in a type or form of analysis not performed by the affirmative expert and, for instance, that analysis demonstrates a "flaw" or potential defect in the affirmative expert's methodology. See Humphreys, 2006 U.S. Dist. LEXIS 47822, at *17-18 (holding that expert opinion on mitigation was rebuttal, even when affirmative expert had not examined issue of mitigation, because rebuttal expert "expose[d] a potential flaw in [affirmative expert's] method"); In re REMEC Inc. Sec. Litig., 702 F. Supp. 2d 1202, 1220 (S.D. Cal. 2010) (finding opinion was properly "rebuttal" opinion despite expert conducting a type of analysis affirmative expert had not undertaken because rebuttal expert's calculation rebutted whether affirmative expert properly
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DEFS.' OPP. TO PLS.' MOT. NO. 3 TO EXCLUDE EXPERT TESTIMONY OF DAVID GARMUS Case No. 07-CV-1658 PJH (EDL)

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complied with the governing standards in its damages analysis). Therefore, although Pinto himself fails to perform proper FPA counts following the IFPUG guidelines, Garmus acts well within his role as a rebuttal expert by pointing out this flaw in Pinto's methodology and demonstrating how a proper analysis is done. Further, Plaintiffs' cases regarding rebuttal opinions either support the admissibility of Garmus' opinions or are inapposite. In IBM Corp. v. Fasco Indus., Inc., No. C-93-20326 RPA, 1995 WL 115421, at *3 (N.D. Cal. Mar. 15, 1995), the court only excluded rebuttal experts who sought to give testimony on subject matters never discussed by affirmative expert, but expressly admitted testimony of experts who critiqued the theories of affirmative experts. Garmus' opinions are admissible on these same grounds. Plaintiffs' two other cases on this issue are inapposite, as both concern experts providing late-disclosed opinions intended to be admitted in the party's case in chief. See In re Ready-Mixed Concrete Antitrust Litig., 261 F.R.D. 154, 159 (S.D. Ind. 2009) (addressing only a supplemental report that impermissibly offered new, more detailed damages opinions intended to be part of plaintiffs' affirmative damages case); Burnham v. United States, No. CV-07-8017-PHX-DGC, 2009 WL 2169191, at *4 (D. Ariz. July 20, 2009) (expert presented a late-disclosed accident reconstruction intended to be a part of plaintiff's casein-chief regarding causation). Additionally, Plaintiffs' complaint that Garmus' opinions required hiring an undisclosed expert is irrelevant to the admissibility of Garmus' opinions and serves only to demonstrate Pinto's own weaknesses. Plaintiffs had to hire Stephen Neuendorf, a Certified Function Point Specialist, not because Garmus opined on FPA, but because Pinto lacked certification. Had Pinto the proper credentials (i.e., were he a Certified Function Point Specialist), he could have analyzed Garmus' exemplar counts himself and Plaintiffs would not have had to hire another expert--an expert Plaintiffs then failed to disclose. See Lanier Decl. ¶ 5, Ex. 5 (Pinto Tr.) at 53:2-10 ("Q. Are you a certified function point specialist? A. I am not. Q. Were