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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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PERSONALWEB TECHNOLOGIES LLC,
et al.,
Plaintiffs,

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United States District Court
Northern District of California

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v.

Case No. 16-cv-01266-EJD
ORDER GRANTING LEAVE TO
SUBMIT SUPPLEMENTAL EXPERT
REPORT

INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant.

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On July 26, 2017, the Court granted Defendant’s motion to exclude the opinions of

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Plaintiffs’ expert, Dr. Akemann, in part because he did not reliably apportion the value of the ’420

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patent from the portfolio of patents that were the subject of the licenses he relied on. Dkt. No.

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345. At a status conference held on July 28, 2017, Plaintiffs orally moved for leave to submit a

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supplemental report from Dr. Akemann for the limited purpose of curing the deficiencies in his

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apportionment analysis. See Dkt. No. 348.

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Federal Rule of Civil Procedure 26(a)(2) required the parties’ experts to each provide a

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written report which contains “a complete statement of all opinions the witness will express and

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the basis and reasons for them.” Accordingly, the Court will not permit Dr. Akemann to provide

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any new opinions beyond those already contained in his report. However, following the example

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of several courts in this district and others, the Court finds it appropriate to permit Dr. Akemann

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one opportunity to supplement his report for the very limited purpose of clarifying his

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methodology and conclusion that there should be a “substantial downward adjustment” that is “not

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necessarily . . . too large” to account for apportionment. Finjan, Inc. v. Sophos, Inc., No. 14-CV-

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Case No.: 16-cv-01266-EJD
ORDER GRANTING LEAVE TO SUBMIT SUPPLEMENTAL EXPERT REPORT

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01197-WHO, 2016 WL 4268659, at *1 (N.D. Cal. Aug. 15, 2016); Golden Bridge Tech. v. Apple

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Inc., 2014 U.S. Dist. LEXIS 68564, *21 (N.D. Cal. May 18, 2014); Dynetix Design Sols., Inc. v.

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Synopsys, Inc., No. C 11-05973 PSG, 2013 WL 4538210, at *5 (N.D. Cal. Aug. 22, 2013); Cornell

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Univ. v. Hewlett-Packard Co., 609 F. Supp. 2d 279, 284 (N.D.N.Y. Mar. 30, 2009).

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For the foregoing reasons, it is hereby ORDERED that:

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1.

Plaintiffs may tender a supplemental damages expert report on apportionment for

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the limited purpose described above no later than July 31, 2017. The supplemental report may not

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exceed 8 pages in length. Additionally, Plaintiffs must make Dr. Akemann available for

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deposition on the substance of his supplemental report. The deposition may not exceed three (3)

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United States District Court
Northern District of California

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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

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testify beyond the scope of his report at trial as is necessary to respond to Dr. Akemann’s

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supplemental report. Additionally, Defendant may (but is not required to) serve a supplemental

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report of no more than 8 pages responding to Dr. Akemann’s supplemental report by August 4,

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2017. Defendant will not be required to make Dr. Kearl available for deposition.

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3.

Upon receipt of Dr. Akemann’s supplemental report, Defendant may renew its

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motion to exclude the opinions of Dr. Akemann by submitting a brief of no more than three (3)

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pages by August 4, 2017. Plaintiffs may file a responsive brief not to exceed three (3) pages

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within two days of the filing of Defendant’s renewed motion. No replies will be allowed.

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IT IS SO ORDERED.
Dated: July 28, 2017
______________________________________
EDWARD J. DAVILA
United States District Judge

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