Evolved Wireless, LLC v. Apple, Inc.

Filing 453

MEMORANDUM AND ORDER: Defendant Apple's Motion to Strike Supplemental Expert Report of Jonathan D. Putnam is DENIED (*see Order for further details). Signed by Judge Joseph F. Bataillon on 2/14/2019. (ceg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
EVOLVED WIRELESS, LLC,

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Plaintiff,
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V.
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APPLE INC.,
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Defendant.
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______________________________________
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Plaintiff,
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V.
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HTC CORPORATION and
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HTC AMERJCA, INC.,
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Defendants.
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______________________________________

Civil Action No. 15-542-JFB-SRF

EVOLVED WIRELESS, LLC,

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Plaintiff,
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V.
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LENOVO GROUP LTD., LENOVO
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(UNITED STATES) INC., and
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MOTOROLA MOBILITY,
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Defendants.
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______________________________________

Civil Action No. 15-543-JFB-SRF

EVOLVED WIRELESS, LLC,

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Civil Action No. 15-544-JFB-SRF

EVOLVED WIRELESS, LLC,

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Plaintiff,
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V.
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SAMSUNG ELECTRONICS CO., LTD.
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and SAMSUNG ELECTRONICS
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AMERICA, INC.
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Defendants.
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_____________________________________ )
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Plaintiff,
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V.
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ZTE (USA) INC.,
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Defendant.
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_____________________________________ )

Civil Action No. 15-545-JFB-SRF

EVOLVED WIRELESS, LLC,

EVOLVED WIRELESS, LLC,

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Plaintiff,
V.
MICROSOFT CORPORATION,
MICROSOFT MOBILE OY and
NOKIA INC.,
Defendants.

Civil Action No. 15-546-JFB-SRF

Civil Action No. 15-547-JFB-SRF

MEMORANDUM AND ORDER
This matter is before the Court on Apple’s motion to strike the supplemental
expert report of Jonathan D. Putnam (D.I. 396).1

1All

docket items (“D.I.”) refer to Civil Action No. 15-542-JFB-SRF unless otherwise stated.

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Dr. Putnam is plaintiff Evolved Wireless Inc.’s (“Evolved”) damages expert.
Apple contends the supplemental report is untimely and asserts that Evolved lacks any
legitimate justification for the delay. Apple argues Dr. Putnam’s new report offers a
reformulation of his “citation analysis” methodology, which forms the entire basis of his
damages’ calculation. It contends that responding to this new analysis would require
the defendants and their experts to expend substantial resources which would be
extremely prejudicial at this stage of the case.
In opposition, Evolved states that a third-party commercial database provider
updated and revised the database of LTE patent data and Dr. Putnam supplemented
his report accordingly. Evolved states that the supplemental report is not “an entirely
new analysis” or a “do-over” report as the defendants contend but applies the same
methodology as Dr. Putnam’s earlier report. Evolved has shown that it offered on July
2, 2018 to make Dr. Putnam available for a deposition regarding his Supplemental
Report. Also, on September 25, 2018, Evolved filed a notice of new facts stating that
the rescheduling of the trials against Apple and the other defendants provided an
additional opportunity to cure any alleged prejudice.
In the Third Circuit, courts weigh the “Pennypack factors” to assess whether any
untimely evidence should be stricken. Konstantopoulas v. Westvaco Corp., 112 F.3d
710, 719 (3d Cir. 1997) (citing Meyers v. Pennypack Woods Home Ownership Ass’n,
559 F.2d 894, 904–05 (3d Cir. 1977) overruled on other grounds, Goodman v. Lukens
Steel Co., 777 F.2d 113 (3d Cir. 1985)). Those factors include: (1) the prejudice or
surprise to the moving party; (2) the possibility of curing the prejudice; (3) the potential
disruption of an orderly and efficient trial; (4) the presence of bad faith or willfulness in

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failing to disclose the evidence; and (5) the importance of the testimony sought to be
excluded. Id. “[T]he exclusion of critical evidence is an ‘extreme’ sanction, not normally
to be imposed absent a showing of willful deception or ‘flagrant disregard’ of a court
order by the proponent of the evidence.” Id. The determination of whether to exclude
evidence is within the discretion of the district court.

Id.

Generally, an additional

deposition of the expert can cure alleged prejudice from the service of a supplemental
report. Novartis Pharm. Corp. v. Actavis, Inc., No. CV 12-366-RGA-CJB, 2013 WL
7045056, at *10 (D. Del. Dec. 23, 2013).
The Court has reviewed the parties’ submissions and finds the motion should be
denied. Evolved has shown that its declaration is not untimely and, if it were, Apple
could have cured any alleged prejudice by again deposing the expert. Any prejudice to
Apple is a problem of its own making. The defendants have known of Dr. Putnam’s
methodology for calculating a FRAND royalty for the patents-in-suit since the disclosure
of his opening report and updated data would have been foreseeable. Accordingly, the
Court finds the motion should be denied.
IT IS ORDERED that Defendant Apple’s motion to strike the supplemental expert
report of Jonathan D. Putnam (D.I. 396) is denied.

DATED this 14th day of January, 2019.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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