Wang v. Palo Alto Networks, Inc. et al

Filing 129

ORDER RE FRE 706 EXPERT FOR THE JURY. Signed by Judge Alsup on March 6, 2014. (whalc1, COURT STAFF) (Filed on 3/6/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California

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No. C 12-05579 WHA

QIANG WANG,
Plaintiff,
v.
PALO ALTO NETWORKS, NIR ZUK, and
FENGMIN GONG,

ORDER RE FRE 706 EXPERT
FOR THE JURY

Defendants.

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A jury trial is set to begin on July 7, 2014, in this action (Dkt. No. 88). The
undersigned judge has read the asserted patents, finds them difficult to understand, and is
convinced that the jury would benefit from the assistance of a court-appointed expert on
technical issues. Indeed, defendant Palo Alto Networks’ (“PAN”) claim construction brief
stated: “[t]he specifications are extremely dense and, in some places, very difficult to
interpret” (Dkt. No. 101). The parties, of course, are invited to show cause why such
appointment would or would not be advisable and to describe the assignments that would be
preferable.
FRE 706 states in relevant part:
[T]he court may order the parties to show cause why expert
witnesses should not be appointed and may ask the parties to
submit nominations. The court may appoint any expert that the
parties agree on and any of its own choosing.

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The expert:

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(1) must advise the parties of any findings the expert makes;

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(2) may be deposed by any party;
(3) may be called to testify by the court or any party; and

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(4) may be cross-examined by any party, including the party that
called the expert.

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The court may authorize disclosure to the jury that the court
appointed the expert.

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This rule does not limit a party in calling its own experts.
The Federal Circuit has recognized that “under Ninth Circuit law, district courts enjoy wide

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latitude to make these appointments.” Monolithic Power Sys., Inc. v. O2 Micro Int’l Ltd., 558

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F.3d 1341, 1347–48 (Fed. Cir. 2009). The appointment of a FRE 706 expert has been upheld

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United States District Court
For the Northern District of California

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“where the district court was confronted by what it viewed as an unusually complex case and

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what appeared to be starkly conflicting expert testimony.” Such an appointment does not limit

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in any way the parties’ ability to call their own experts and the parties’ experts may “attack,

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support, or supplement” the testimony of the FRE 706 expert.

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By MARCH 19, both sides shall please meet and confer and agree on one or more

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qualified proposed FRE 706 expert(s) to testify before the jury at trial and any other hearings

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as appropriate (but not as a confidential advisor to the judge). Once a FRE 706 expert is

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selected, it may be appropriate to jointly call the candidate(s) to make sure he or she is

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available and has no conflicts. The FRE 706 expert shall provide independent technical

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analysis, be available for deposition and cross-examination by both sides, and be available to

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the Court and the jury for review.

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The rulings on the parties’ claim construction disputes shall be deferred until PAN

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brings a motion for summary judgment so that any infringement issues in play are fully briefed

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and can be considered by a FRE 706 expert, if appropriate. The parties shall please be

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prepared to discuss one or more qualified proposed FRE 706 experts at the hearing on

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plaintiff’s motion for leave to amend infringement contentions, noticed for March 20.

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IT IS SO ORDERED.
Dated: March 6, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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