AVM Technologies LLC v. Intel Corporation

Filing 686

MEMORANDUM ORDER: The proffered McAlexander testimony is EXCLUDED. Signed by Judge Richard G. Andrews on 4/28/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

AVM TECHNOLOGIES, LLC,
Plaintiff;

v.

Civil Action No. 15-33-RGA

INTEL CORPORATION,
Defendant.

MEMORANDUM ORDER

One of the issues raised by motion in limine, which I have partly addressed (D.I. 637 at
1-2) is whether Intel can use portions of the deposition testimony of Mr. McAlexander from the
AVMl litigation. The parties have submitted further papers containing argument (D.I. 646, 654)
as well as the proffered testimony (D.I. 647-1). I have read all the papers.
I do not think A VM is seriously contesting the non-hearsay nature of the proposed
testimony. A VM primarily relies upon Rule 403 to argue that it ought to be excluded even if
non-hearsay. Intel submitted its papers first. It gives minimal attention to the Rule 403
argument. Based on what has been submitted, I think the McAlexander testimony should be
excluded.
First, it seems obvious that the proffered testimony is, for the most part, cumulative. I do
not think most of the proposed excerpts (with the exception ofD.I. 647-1at15-18 re: written
description and at 32 re: copying) are any different from what the other experts, including
Plaintiff's experts, are going to say at trial.

Second, it is unfair. A deposition of this sort, that is, of an expert expected to testify at a
trial six months later, is one-sided. It is mostly a cross-examination, with no direct, and with
little incentive for a redirect. For example, one of the points Intel wants to make is to show that
McAlexander said (1) he does not contend there is copying, and (2) "[b]ased on his
understanding of copying," he is not "aware of any evidence showing that Intel has copied the
'54 7 patent." (Id. at 32). What he contends is irrelevant. The second statement is too
conclusory to be meaningful. It made sense in the context of A VM 1. Intel wanted to be sure
that the expert would not contend there is copying. Mission accomplished! Whatever the
current evidence of copying is, he was not asked to opine about that. His written description
testimony is, in my opinion, mostly opaque where it might matter. I understand various of the
questions and answers, but the answers involving the words "written description" follow from
questions phrased conditionally. I do not see the testimony as being very probative.
Third, to the extent any of the testimony has any non-cumulative probative value, there is
a substantial risk that the jury will understand the testimony as indicating inconsistency in
AVM's positions. The proffered testimony includes that he had been hired by some other A VM
lawyers. (Id. at 6). I think it is clear that an independent expert such as McAlexander is not an
agent of AVM. See Kirk v. Raymark Indus., Inc., 61F.3d147, 164 (3d Cir. 1995). Thus, his
testimony cannot be offered to prove A VM's inconsistency. Clearly, though, that is the main
reason Intel wants to offer the evidence. At most, McAlexander is an expert who has a different
conclusion on written description than A VM's current expert, but, of course, Intel already has its
own expert who has a different conclusion.

2

I think the McAlexander testimony mostly has little probative value, and the probative
value it does have is substantially outweighed by the danger of unfair prejudice and the needless
presentation of cumulative evidence.
Thus, the proffered McAlexander testimony is EXCLUDED.

Entered this 2fJ day of April, 2017.

United States Distr ct Judge

3