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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AVAGO TECHNOLOGIES FIBER IP
(SINGAPORE) PTE. LTD., et al.,

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Plaintiffs,
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v.
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Case No. 5:10-cv-02863-EJD
ORDER GRANTING MOTION TO
STRIKE SUPPLEMENTAL PETERSON
EXPERT REPORT
(Re: Docket No. 786)

IPTRONICS INC., et al.,

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United States District Court
Northern District of California

Defendants.
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Defendants Mellanox Technologies Denmark APS, Mellanox Technologies, Inc.,

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Mellanox Technologies, Ltd., and IPtronics, Inc. move to strike the supplemental expert report of

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Harry Peterson, an expert for Plaintiffs Avago Technologies U.S. Inc., Avago Technologies

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General IP (Singapore) Ptd. Ltd., Avago Technologies Trading Ltd., and Avago Technologies

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International Sales Pte. Ltd. The supplemental Peterson report is untimely and improper and so

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Defendants’ motion is GRANTED.

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Following much ado last summer about the production of technical netlists,1 the parties

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resolved that discovery issue and entered into a stipulation2 after enjoying the hospitality of the

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court.3 The parties’ opening expert reports were due on September 18, 2015,4 and the stipulation

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See Docket Nos. 737, 738.

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See Docket Nos. 744, 765.

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See Docket Nos. 739, 744.

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See Docket No. 522 at 7.

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Case No. 5:10-cv-02863-EJD
ORDER GRANTING MOTION TO STRIKE SUPPLEMENTAL PETERSON EXPERT
REPORT

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provided that if Defendants produced the netlists after September 4, then the parties would

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stipulate to seek leave to extend the deadline for Plaintiff’s technical expert reports by the same

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number of days as the delay in production.5

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Defendants produced the netlists on September 4, 2015, in native format, and then in Eldo

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format on September 14, 2015, at Plaintiffs’ request.6 Plaintiffs timely served the Peterson expert

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report on September 18 and Defendants timely served the rebuttal expert report of Dr. Michael

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Lebby on October 16.7 Plaintiffs then served the supplemental Peterson report on November 6,

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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

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Fed. R. Civ. P. 26(e). The court’s scheduling order provides for the designation and service of

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United States District Court
Northern District of California

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Opening Experts with Reports and Rebuttal Experts with Reports.9 It makes no provision for

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reply expert reports or rebuttals to rebuttal expert reports. Plaintiffs argue that the scheduling

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order does not forbid reply expert reports, and that Fed. R. Civ. P. 26(a)(2)(D)(ii) allows the

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disclosure of expert testimony within 30 days of another party’s disclosure “if the evidence is

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intended solely to contradict or rebut evidence on the same subject matter identified by another

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party under Rule 26(a)(2)(b) or (C).” However, Plaintiffs’ position that they may serve as much

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reply expert evidence as they please because the schedule order does not explicitly forbid it is

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untenable. “[T]he Court’s scheduling order with respect to opening and rebuttal expert reports,

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[is] in place to allow for the orderly litigation of patent disputes.”10 By Plaintiffs’ logic, the parties

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See Docket No. 765 at 1-2.

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See Docket No. 785-4 at 2-3.

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See Docket No. 785-4 at 3; Docket No. 522 at 7.

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See Docket No. 785-4 at 4-5.

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See Docket No. 522 at 7.

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MediaTek Inc. v. Freescale Semiconductor, Case No. 11–cv–5341 YGR, 2014 WL 2854773, at
*5 (N.D. Cal. June 20, 2014).
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Case No. 5:10-cv-02863-EJD
ORDER GRANTING MOTION TO STRIKE SUPPLEMENTAL PETERSON EXPERT
REPORT

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could embark on an endless cycle of replies to replies to replies under Fed. R. Civ. P.

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26(a)(2)(D)(ii), because the scheduling order does not explicitly forbid it. This would make a

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mockery of the orderly litigation process and cannot be allowed. At the very least, the proper

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course for Plaintiffs would have been to seek leave of the court to file their response to

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Defendants’ rebuttal expert report.
Furthermore, the supplemental Peterson report is not a proper supplement within the

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meaning of Fed. R. Civ. P. 26(e). Rule 26(e) requires supplementation of expert reports if the

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initial disclosure is “incomplete or incorrect.” Plaintiffs argue that the supplemental report

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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

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United States District Court
Northern District of California

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However, the Eldo netlists produced on September 14, 2015, were in a usable format,12 and so

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under the parties’ September stipulation, the proper course of action would have been to stipulate

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and seek leave of the court to extend Plaintiffs’ deadline for serving Peterson’s opening report by

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ten days, the same number of days that Defendants allegedly delayed in properly producing the

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netlists. Plaintiffs’ deadline for an opening expert report disclosing information based on

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simulations run on the Eldo netlists would then have been September 28, 2015, ten days after the

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original September 18, 2015 deadline. Plaintiffs did not serve the supplemental report until

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November 6, 49 days after the deadline.

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SO ORDERED.

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Dated: December 4, 2015
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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See Docket No. 795 at 10-11.

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See id.

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Case No. 5:10-cv-02863-EJD
ORDER GRANTING MOTION TO STRIKE SUPPLEMENTAL PETERSON EXPERT
REPORT