Enplas Display Device Corporation et al v. Seoul Semiconductor Company, Ltd.

Filing 277

ORDER DENYING MOTION TO STRIKE SUPPLEMENTAL EXPERT REPORTS. Re: Dkt. No. 225 . Signed by Judge Nathanael Cousins on 12/21/2015. (lmh, COURT STAFF) (Filed on 12/21/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ENPLAS DISPLAY DEVICE
CORPORATION, et al.,

United States District Court
Northern District of California

Plaintiffs,
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v.
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SEOUL SEMICONDUCTOR
COMPANY, LTD.,

Case No. 13-cv-05038 NC
ORDER DENYING MOTION TO
STRIKE SUPPLEMENTAL EXPERT
REPORTS
Re: Dkt. No. 225

Defendant.

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In this patent infringement case, plaintiff Enplas Display Device (“Enplas”) asks the

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Court to strike the supplemental expert reports of defendants Seoul Semiconductor

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Company, Ltd. (“SSC”) for untimely disclosure.

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On August 28, 2015, SSC’s infringement expert, Dr. Moore, submitted his opening

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expert report to Enplas. During Moore’s deposition, Enplas pointed out that all of the

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lenses modeled by Moore appeared to be of a similar shape. On October 29, SSC’s

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counsel wrote to Enplas that they had investigated Enplas’ concern, and discovered that

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BRO, a third-party research organization involved in creating the lens simulations, had

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“mistakenly failed to update a single parameter” in the spacing between the top and bottom

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curves of the lenses. Dkt. No. 253 at 8. At that time, SSC’s counsel informed Enplas that

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SSC would supplement the expert reports to correct the error, and offered to stipulate to an

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extension of the summary judgment and Daubert motion deadlines. Dkt. No. 226 at Exh.
Case No. 13-cv-05038 NC

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7. SSC also offered to make Moore available for deposition in Washington D.C. at SSC’s

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expense. Id. Julie Davis, SSC’s damages expert, also supplemented her report to amend

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those aspects of her report dependent on Moore’s incorrect opinions.

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Enplas moves to strike Moore and Davis’ supplemental reports as untimely. Enplas

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argues that Moore substantially changes his infringement opinions. As a result, the

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changes are not supplemental, and permitting the changes would be prejudicial to Enplas

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because they necessitate additional discovery. SSC argues that the reports are purely

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“supplemental” because they do not change Moore’s conclusions that Enplas is infringing

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the patents-in-suit. SSC also argues that supplementing reports is required under Federal

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United States District Court
Northern District of California

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Rule of Civil Procedure 26(e)(2), so the supplements are timely.
Federal Rule of Civil Procedure 26(e)(2) provides, “For an expert whose report

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must be disclosed under Rule 26(a)(2)(B), the party’s duty to supplement extends both to

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information included in the report and to information given during the expert’s deposition.

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Any additions or changes to this information must be disclosed by the time the party’s

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pretrial disclosures under Rule 26(a)(3) are due.” Federal Rule of Civil Procedure 26(a)(3)

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states that the timing for pretrial disclosures is “at least 30 days before trial.”

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The Court agrees with SSC that BRO and Moore made a data entry error that

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changed Moore’s opinion on one lens, but did not affect his methodology or conclusions

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on the other lenses. Rule 26(e)(2) clearly envisions the possibility that an error could be

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made in an expert report that would come to light only after the expert’s deposition. The

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Court finds that SSC’s error was one warranting supplementation of the expert reports.

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Because the expert reports were supplemented more than 30 days before trial, the reports

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were timely.

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As to Enplas’ concern that it is prejudiced by the supplemental reports, SSC has

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offered to permit an additional deposition at its expense. The Court is amenable to

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permitting limited scope additional discovery for Dr. Moore’s deposition, provided at

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SSC’s expense. The parties must meet and confer, and stipulate to or request the necessary

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additional discovery by January 6, 2016. The Court does not intend to move the pretrial
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conference date or trial date, so any additional deposition should occur by February 10,

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2016 when pretrial motions will be due.

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IT IS SO ORDERED.

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Dated: December 21, 2015

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_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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United States District Court
Northern District of California

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Case No. 13-cv-05038 NC

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