Avago Technologies Fiber IP (Singapore) PTE. Ltd. v. IPtronics Inc. et al

Filing 801

ORDER GRANTING MOTION TO STRIKE SUPPLEMENTAL PETERSON EXPERTREPORT by Magistrate Judge Paul Singh Grewal granting 786 . (psglc1S, COURT STAFF) (Filed on 12/4/2015)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AVAGO TECHNOLOGIES FIBER IP (SINGAPORE) PTE. LTD., et al., 8 Plaintiffs, 9 v. 10 Case No. 5:10-cv-02863-EJD ORDER GRANTING MOTION TO STRIKE SUPPLEMENTAL PETERSON EXPERT REPORT (Re: Docket No. 786) IPTRONICS INC., et al., 11 United States District Court Northern District of California Defendants. 12 13 Defendants Mellanox Technologies Denmark APS, Mellanox Technologies, Inc., 14 Mellanox Technologies, Ltd., and IPtronics, Inc. move to strike the supplemental expert report of 15 Harry Peterson, an expert for Plaintiffs Avago Technologies U.S. Inc., Avago Technologies 16 General IP (Singapore) Ptd. Ltd., Avago Technologies Trading Ltd., and Avago Technologies 17 International Sales Pte. Ltd. The supplemental Peterson report is untimely and improper and so 18 Defendants’ motion is GRANTED. 19 Following much ado last summer about the production of technical netlists,1 the parties 20 resolved that discovery issue and entered into a stipulation2 after enjoying the hospitality of the 21 court.3 The parties’ opening expert reports were due on September 18, 2015,4 and the stipulation 22 23 1 See Docket Nos. 737, 738. 2 See Docket Nos. 744, 765. 3 See Docket Nos. 739, 744. 4 See Docket No. 522 at 7. 24 25 26 27 28 1 Case No. 5:10-cv-02863-EJD ORDER GRANTING MOTION TO STRIKE SUPPLEMENTAL PETERSON EXPERT REPORT 1 provided that if Defendants produced the netlists after September 4, then the parties would 2 stipulate to seek leave to extend the deadline for Plaintiff’s technical expert reports by the same 3 number of days as the delay in production.5 4 Defendants produced the netlists on September 4, 2015, in native format, and then in Eldo 5 format on September 14, 2015, at Plaintiffs’ request.6 Plaintiffs timely served the Peterson expert 6 report on September 18 and Defendants timely served the rebuttal expert report of Dr. Michael 7 Lebby on October 16.7 Plaintiffs then served the supplemental Peterson report on November 6, 8 2015, and served an additional 2,279 pages of simulation results on November 13, 2015.8 The supplemental Peterson report is improper under the court’s scheduling order and under 9 Fed. R. Civ. P. 26(e). The court’s scheduling order provides for the designation and service of 11 United States District Court Northern District of California 10 Opening Experts with Reports and Rebuttal Experts with Reports.9 It makes no provision for 12 reply expert reports or rebuttals to rebuttal expert reports. Plaintiffs argue that the scheduling 13 order does not forbid reply expert reports, and that Fed. R. Civ. P. 26(a)(2)(D)(ii) allows the 14 disclosure of expert testimony within 30 days of another party’s disclosure “if the evidence is 15 intended solely to contradict or rebut evidence on the same subject matter identified by another 16 party under Rule 26(a)(2)(b) or (C).” However, Plaintiffs’ position that they may serve as much 17 reply expert evidence as they please because the schedule order does not explicitly forbid it is 18 untenable. “[T]he Court’s scheduling order with respect to opening and rebuttal expert reports, 19 [is] in place to allow for the orderly litigation of patent disputes.”10 By Plaintiffs’ logic, the parties 20 5 See Docket No. 765 at 1-2. 6 See Docket No. 785-4 at 2-3. 7 See Docket No. 785-4 at 3; Docket No. 522 at 7. 8 See Docket No. 785-4 at 4-5. 9 See Docket No. 522 at 7. 21 22 23 24 25 26 27 28 10 MediaTek Inc. v. Freescale Semiconductor, Case No. 11–cv–5341 YGR, 2014 WL 2854773, at *5 (N.D. Cal. June 20, 2014). 2 Case No. 5:10-cv-02863-EJD ORDER GRANTING MOTION TO STRIKE SUPPLEMENTAL PETERSON EXPERT REPORT 1 could embark on an endless cycle of replies to replies to replies under Fed. R. Civ. P. 2 26(a)(2)(D)(ii), because the scheduling order does not explicitly forbid it. This would make a 3 mockery of the orderly litigation process and cannot be allowed. At the very least, the proper 4 course for Plaintiffs would have been to seek leave of the court to file their response to 5 Defendants’ rebuttal expert report. Furthermore, the supplemental Peterson report is not a proper supplement within the 6 7 meaning of Fed. R. Civ. P. 26(e). Rule 26(e) requires supplementation of expert reports if the 8 initial disclosure is “incomplete or incorrect.” Plaintiffs argue that the supplemental report 9 discloses information that was not reasonably available to Peterson at the time of his initial expert report, because the netlists produced on September 4, 2015, were unusable for his simulations.11 11 United States District Court Northern District of California 10 However, the Eldo netlists produced on September 14, 2015, were in a usable format,12 and so 12 under the parties’ September stipulation, the proper course of action would have been to stipulate 13 and seek leave of the court to extend Plaintiffs’ deadline for serving Peterson’s opening report by 14 ten days, the same number of days that Defendants allegedly delayed in properly producing the 15 netlists. Plaintiffs’ deadline for an opening expert report disclosing information based on 16 simulations run on the Eldo netlists would then have been September 28, 2015, ten days after the 17 original September 18, 2015 deadline. Plaintiffs did not serve the supplemental report until 18 November 6, 49 days after the deadline. 19 SO ORDERED. 20 Dated: December 4, 2015 _________________________________ PAUL S. GREWAL United States Magistrate Judge 21 22 23 24 25 11 See Docket No. 795 at 10-11. 26 12 See id. 27 28 3 Case No. 5:10-cv-02863-EJD ORDER GRANTING MOTION TO STRIKE SUPPLEMENTAL PETERSON EXPERT REPORT

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