PersonalWeb Technologies LLC et al v. International Business Machines Corporation

Filing 352

ORDER GRANTING LEAVE TO SUBMIT SUPPLEMENTAL EXPERT REPORT. Signed by Judge Edward J. Davila on 7/28/2017. (patentlcsjS, COURT STAFF) (Filed on 7/28/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 PERSONALWEB TECHNOLOGIES LLC, et al., Plaintiffs, 9 10 United States District Court Northern District of California 11 12 v. Case No. 16-cv-01266-EJD ORDER GRANTING LEAVE TO SUBMIT SUPPLEMENTAL EXPERT REPORT INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant. 13 14 On July 26, 2017, the Court granted Defendant’s motion to exclude the opinions of 15 Plaintiffs’ expert, Dr. Akemann, in part because he did not reliably apportion the value of the ’420 16 patent from the portfolio of patents that were the subject of the licenses he relied on. Dkt. No. 17 345. At a status conference held on July 28, 2017, Plaintiffs orally moved for leave to submit a 18 supplemental report from Dr. Akemann for the limited purpose of curing the deficiencies in his 19 apportionment analysis. See Dkt. No. 348. 20 Federal Rule of Civil Procedure 26(a)(2) required the parties’ experts to each provide a 21 written report which contains “a complete statement of all opinions the witness will express and 22 the basis and reasons for them.” Accordingly, the Court will not permit Dr. Akemann to provide 23 any new opinions beyond those already contained in his report. However, following the example 24 of several courts in this district and others, the Court finds it appropriate to permit Dr. Akemann 25 one opportunity to supplement his report for the very limited purpose of clarifying his 26 methodology and conclusion that there should be a “substantial downward adjustment” that is “not 27 necessarily . . . too large” to account for apportionment. Finjan, Inc. v. Sophos, Inc., No. 14-CV- 28 1 Case No.: 16-cv-01266-EJD ORDER GRANTING LEAVE TO SUBMIT SUPPLEMENTAL EXPERT REPORT 1 01197-WHO, 2016 WL 4268659, at *1 (N.D. Cal. Aug. 15, 2016); Golden Bridge Tech. v. Apple 2 Inc., 2014 U.S. Dist. LEXIS 68564, *21 (N.D. Cal. May 18, 2014); Dynetix Design Sols., Inc. v. 3 Synopsys, Inc., No. C 11-05973 PSG, 2013 WL 4538210, at *5 (N.D. Cal. Aug. 22, 2013); Cornell 4 Univ. v. Hewlett-Packard Co., 609 F. Supp. 2d 279, 284 (N.D.N.Y. Mar. 30, 2009). 5 For the foregoing reasons, it is hereby ORDERED that: 6 1. Plaintiffs may tender a supplemental damages expert report on apportionment for 7 the limited purpose described above no later than July 31, 2017. The supplemental report may not 8 exceed 8 pages in length. Additionally, Plaintiffs must make Dr. Akemann available for 9 deposition on the substance of his supplemental report. The deposition may not exceed three (3) 10 United States District Court Northern District of California 11 hours in length and must be completed by August 4, 2017. 2. As proposed by Plaintiffs at the status conference, Dr. Kearl will be permitted to 12 testify beyond the scope of his report at trial as is necessary to respond to Dr. Akemann’s 13 supplemental report. Additionally, Defendant may (but is not required to) serve a supplemental 14 report of no more than 8 pages responding to Dr. Akemann’s supplemental report by August 4, 15 2017. Defendant will not be required to make Dr. Kearl available for deposition. 16 3. Upon receipt of Dr. Akemann’s supplemental report, Defendant may renew its 17 motion to exclude the opinions of Dr. Akemann by submitting a brief of no more than three (3) 18 pages by August 4, 2017. Plaintiffs may file a responsive brief not to exceed three (3) pages 19 within two days of the filing of Defendant’s renewed motion. No replies will be allowed. 20 21 22 23 IT IS SO ORDERED. Dated: July 28, 2017 ______________________________________ EDWARD J. DAVILA United States District Judge 24 25 26 27 28 2

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