Harris Corporation v. Ruckus Wireless, Inc.

Filing 252

ORDER deferring ruling on 199 Motion to Disqualify; granting 205 Motion to Strike. Signed by Judge Carlos E. Mendoza on 6/12/2015. (KMS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

HARRIS CORPORATION,
Plaintiff,
v.

Case No: 6:11-cv-618-Orl-41KRS

RUCKUS WIRELESS, INC.,
Defendant.
/
ORDER
THIS CAUSE is before the Court on the following motions: Defendant Ruckus Wireless,
Inc.’s (“Ruckus”) Daubert Motion to Exclude the Testimony and Opinions of Dr. Nisha Marie
Mody, Ph.D. (the “Ruckus Daubert Motion,” Doc. 199) and Plaintiff Harris Corporation’s
(“Harris”) Motion to Exclude Unproduced Documents Pursuant to Rule 37(c)(1) and to Exclude
the Amended Expert Report of Richard J. Ostiller (the “Harris Motion to Exclude,” Doc. 205). For
the reasons set forth below, the Court will defer ruling on the Ruckus Daubert Motion, and the
Harris Motion to Exclude will be granted.
I.

BACKGROUND

This case concerns the alleged infringement of two patents: U.S. Patent No. 6,504,515 (the
“’515 Patent,” Doc. 13-1) and U.S. Patent No. 7,916,684 (the “’684 Patent,” Doc. 13-2)
(collectively, the “Patents-in-Suit”). Harris initiated this case on April 15, 2011, and filed an
Amended Complaint (Doc. 13) on May 23, 2011, wherein Harris alleges that “Ruckus has sold
products and performed methods that infringe directly, by inducement and/or contributorily, one
or more claims of the [Patents-in-Suit].” (Id. at 3, 4). Moreover, Harris alleges that “Ruckus has

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infringed and is still infringing one or more claims of the [Patents-in-Suit] by making, selling and
using products that embody Harris’[s] patented invention.” (Id.).
As relevant, the original Case Management and Scheduling Order (the “2011 CMSO,”
Doc. 28) provided for the following deadlines: (1) mandatory initial disclosures due July 29, 2011;
(2) burden-of-proof expert reports due on March 5, 2012; (3) rebuttal expert reports due April 6,
2012; (4) discovery deadline of May 4, 2012; and (5) all dispositive, Daubert, and Markman
motions due June 1, 2012. 1 In accordance with those deadlines, Harris identified Dr. Nisha Marie
Mody, Ph.D. (“Dr. Mody”) as its expert with regard to damages and submitted a corresponding
expert report (the “2012 Mody Expert Report”). (Ruckus Daubert Mot. at 3). Therein, Dr. Mody
employed an “income-based methodology to arrive at a reasonabl[e] royalty for Ruckus’[s]
[purported] patent infringement.” (Harris Mot. Exclude at 3). In rebuttal, Ruckus timely identified
Richard J. Ostiller (“Mr. Ostiller”) as its expert with regard to damages and submitted a
corresponding rebuttal expert report (the “2012 Ostiller Expert Report”). (Id.). Therein, Mr.
Ostiller challenges Dr. Mody’s methodology and offers “an alternative damages theory that utilizes
a market-based methodology.” (Id.).
After proceeding through claim construction, (see Doc. 121), summary judgment, (see
Doc. 125), and Daubert motions, (see Doc. Nos. 123–24), 2 the case was stayed on February 21,
2013, pending reexamination of the ’684 Patent by the United States Patent and Trademark Office,
(see Feb. 21, 2013 Order, Doc. 132; see also Mar. 29, 2013 Order, Doc. 138, at 3 (affirming the

1

It seems that the dispositive motion deadline was amended to April 4, 2013, (Am. CMSO,
Doc. 87, at 2), but at the parties’ prompting, the amended deadline was abandoned, in lieu of the
original deadline, (see Joint Mot. Clarify Am. CMSO, Doc. 92, at 2–3; Second Am. CMSO, Doc.
100, at 2).
2
Harris previously filed a Motion to Strike the Expert Report and Exclude Testimony of
Richard J. Ostiller (Doc. 65). That motion was denied. (See Doc. 123). Ruckus did not previously
file a Daubert motion with regard to Dr. Mody.

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prior decision to stay)). To date, Ruckus has requested reexamination of the ’684 Patent four times.
Of those requests, the most recent, filed under Control Number 90/013,324, has been granted and
remains pending before the PTO. (See Aug. 28, 2014 Notice Pendency, Doc. 144, at 2; Markman
Hr’g Tr., Feb. 4, 2015, Doc. 187, at 32:19–21). Also, Ruckus has requested reexamination of the
’515 Patent two times, the most recent of which, filed under Control Number 90/013,289, has
resulted in amendments to the ’515 Patent. (See Aug. 28, 2014 Notice Pendency at 1–2; Telephonic
Hr’g Tr., May 26, 2015, Doc. 247, at 8:15–22).
During the course of the stay, the case was transferred to the undersigned from United
States District Judge Charlene E. Honeywell. (See Doc. 142). Thereafter, the stay was lifted. (Oct.
2, 2014 Order, Doc. 145, at 7). In doing so, this Court instructed the parties to file a new Case
Management Report (“CMR”). (Id.). Initially, the parties failed to agree on proposed deadlines,
and on November 17, 2014, the parties submitted a CMR (Doc. 165), in which each party outlined
their respective proposals. As a result, the Court held a November 25, 2014 Telephonic Hearing
and encouraged the parties to file an amended CMR, which included agreed-upon deadlines. (See
Minute Entry, Doc. 168; Telephonic Conference Tr., Nov. 25, 2014, Doc. 173, at 8:2–25).
Importantly, during that hearing, the Court instructed that it was “not willing to go and rehear
matters that have already been determined by Judge Honeywell.” (Telephonic Conference Tr.,
Nov. 25, 2014, at 9:2–3). The Court continued, “So if [Ruckus] w[as] to file any motions for
summary judgment, et cetera, that delve into matters already resolved, I fully expect [Harris] to
move to either strike or to . . . ask the Court to deny relief on those matters that have already been
determined by Judge Honeywell.” (Id. at 9:6–10). Moreover, Counsel for Ruckus represented that
the purpose of any new proceeding was “not to redo” prior proceedings; rather, the sole purpose
was to address issues that arose during reexamination. (Id. at 6:16–17; see also id. at 7:2–4).

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Subsequently, the parties submitted the Amended CMR (Doc. 171), which includes agreedupon dates. In pertinent part, the parties set the following deadlines:
DEADLINE OR EVENT

STIPULATED
PROPOSED
DATE

Parties to exchange amended infringement/invalidity contentions as
follows:
March 6, 2015
(1) Ruckus’ amended invalidity contentions to address:
a. construction of the disputed claim term (“simultaneous/
simultaneously”) of the’684 Patent; and
b. issues raised in the reexaminations of both the ’515 and ’684
patents.
(2) Harris’ infringement contentions based on the Court’s January 4,
2013 Claim Construction Order (Doc. 121) and the construction of the
disputed claim term (“simultaneous/simultaneously”) of the ’684
Patent.
Parties to exchange amended burden-of-proof expert reports to address:
(1) the Court’s January 4, 2013 Claim Construction Order (Doc. 121) March 6, 2015
and construction of the disputed claim term (“simultaneous/
simultaneously”) of the ’684 Patent;
(2) issues raised in the re-examinations of both the ’515 and ’684
Patents; and
(3) damages based on updated sales information and new case law.
Parties to exchange rebuttal expert reports to amended expert reports

April 3, 2015

Expert discovery regarding amended expert reports closes

April 10, 2015

The corresponding Case Management and Scheduling Order (the “2015 CMSO,” Doc. 176) adopts
the agreed-upon dates.

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Thereafter, the parties proceeded through limited claim construction, and in the March 2,
2015 Order on claim construction (Doc. 190), the Court admonished that, upon lifting the prior
stay, “[t]he parties were barred from re-litigating issues that could have been addressed prior to
the stay; however, the parties were permitted, through claim[] construction, Daubert motions, and
dispositive motions, to address any changes to both the ’515 and ’684 Patents that arose during
reexamination.” (Id. at 2 (citing 2015 CMSO; Telephonic Conference Tr., Nov. 25, 2014, at 9:1–
12)). In fact, a primary reason for rejecting Ruckus’s “sets of frequencies” construction was that
“Ruckus’s construction improperly attempts to re-litigate issues that should have been previously
addressed.” (Id. at 12 (“First and foremost, the present claim construction is limited to issues raised
during reexamination, and the terms added during the reexaminations, i.e., ‘simultaneous’ and
‘simultaneously,’ are unrelated to the frequency distinction.”).
Following claim construction, in accordance with the 2015 CMSO, Harris served a
supplemental report of Dr. Mody (the “2015 Mody Supplemental Expert Report”) which
purportedly accounts for damages that “accrued during the stay.” (Harris Mot. Exclude at 5).
According to Harris, “Dr. Mody’s analysis and methodology for arriving at a reasonable royalty
remained unchanged from the initial report served in 2012.” (Id. at 17).
Subsequently, on April 3, 2015, Ruckus served Mr. Ostiller’s amended expert report (the
“2015 Ostiller Amended Expert Report”), which employs an income-based methodology for
calculating damages, as compared to the market-based methodology that was employed in the
original, 2012 Ostiller Expert Report. (Id. at 5). According to Harris, the 2015 Ostiller Amended
Expert Report “includes entirely new criticisms of Dr. Mody’s analysis that could have been
contained in the original report[] and sets forth an entirely new alternative damages theory.” (Id.).
Moreover, Mr. Ostiller’s amended report relies on documents—the costed bills of materials (the

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“Costed BOM’s”)—that were not previously produced. (Id. at 5, 10). Ruckus describes the Costed
BOM’s as “the list of every component in the accused WiFi access points and their prices.” (Resp.
to Harris Mot. Exclude, Doc. 222, at 1). Upon Harris’s request, Ruckus produced the Costed
BOM’s in PDF format on April 8, 2015, which was the day before the scheduled deposition of Mr.
Ostiller. (Harris Mot. Exclude at 6–7). On May 22, 2015, the documents were produced in their
native Excel format, including metadata. (Telephonic Hr’g Tr., May 26, 2015, at 16:2–7).
II.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 26(a)(1)(A), among other things, a party must
disclose and provide to the opposing party “(i) the name . . . of each individual likely to have
discoverable information . . . that the disclosing party may use to support its claims or
defenses[;] . . . (ii) a copy . . . of all documents, electronically stored information, and tangible
things that the disclosing party . . . may use to support its claims or defenses.” Such disclosures
must be made within the time set by court order. Fed. R. Civ. P. 26(a)(1)(C); see also M.D. Fla.
R. 3.05(d). Additionally, “a party must disclose to the other parties the identity of any witness it
may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R.
Civ. P. 26(a)(2)(A). “[T]his disclosure must be accompanied by a written report—prepared and
signed by the witness—if the witness is one retained or specially employed to provide expert
testimony in the case.” Fed. R. Civ. P. 26(a)(2)(B) (emphasis added). Such disclosures must be
made “at the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D).
Rule 26(e) imparts an on-going obligation to timely “supplement or correct” disclosures if
the disclosing party “learns that in some material respect the disclosure or response is incomplete
or incorrect, and if the additional or corrective information has not otherwise been made known to

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the other parties during the discovery process.” Fed. R. Civ. P. 26(e)(1). Such supplementation
must occur within the time limits “ordered by the court.” Id.
Under Rule 16(b), district courts are required to issue scheduling orders, the content of
which may include deadlines for disclosures under Rules 26(a) and (e). In that sense, a Rule 16(b)
scheduling order embodies the Rule 26 deadlines. As to modification, a “schedule may be modified
only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4) (emphasis added).
“This good cause standard precludes modification unless the schedule cannot ‘be met despite the
diligence of the party seeking the extension.’” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418
(11th Cir. 1998) (quoting Fed. R. Civ. P. 16 advisory committee’s note, 1983 amend.).
III.

DISCUSSION

Broadly speaking, Ruckus seeks exclusion of Dr. Mody’s testimony, and Harris seeks
exclusion of the Costed BOM’s and Mr. Ostiller’s supplemental testimony. The Court will begin
with Harris’s arguments.
A.

Harris Motion To Exclude

By way of the Harris Motion to Exclude, Harris argues that the 2015 Ostiller Amended
Expert Report should be stricken because such disclosure was not permitted by the 2015 CMSO
and therefore violates the original, 2011 CMSO. Moreover, Harris argues that the Costed BOM’s
should be excluded because those documents were not timely produced.
1.

The 2015 Ostiller Amended Expert Report

The deadline for submitting rebuttal expert reports was April 6, 2012. After this case was
reopened in October 2014, the Court set deadlines for amended burden-of-proof expert reports,
which were limited to Judge Honeywell’s pre-stay claim construction, issues raised during
reexamination, and “damages based on updated sales information and new case law.” (2015

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CMSO at 1–2 (adopting the Amended CMR); Am. CMR at 3). In conjunction, the Court permitted
the exchange of rebuttal reports to the amended burden-of-proof expert reports. (2015 CMSO at
1).
Ruckus argues that the 2015 Ostiller Amended Expert Report was permitted under the 2015
CMSO because it is based on new case law. As an initial matter, in the parties’ Amended CMR,
the reference to “new case law,” while included with regard to burden-of-proof expert reports, is
noticeably absent from the section on rebuttal expert reports. (Am. CMR at 3). Even assuming that
the 2015 CMSO permits Ruckus to unilaterally address new case law in its rebuttal to Dr. Mody’s
unchanged report, the content of the case law upon which Ruckus relies is not “new.”
Generally, Ruckus points to three recent decisions from the Federal Circuit for the
proposition that patent royalty damages, regarding infringement by a multi-component product,
must be apportioned between the patented and un-patented components and that such royalties
must be based on the “smallest salable unit.” (Resp. to Harris Mot. Exclude at 4–6). Ruckus first
relies on LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51 (Fed. Cir. 2012). To begin,
LaserDynamics was decided on August 30, 2012. Id. at 51. By that point in 2012, the pre-stay trial
date for this case was over ten months away, and while the deadlines for discovery and dispositive
motions had passed, various other deadlines remained pending. (See Am. CMSO, Doc. 87, at 2;
Second Am. CMSO, Doc. 100, at 2). Ruckus’s failure to raise the issue prior to the February 2013
stay belies the significance to which it presently assigns LaserDynamics.
Substantively, the LaserDynamics panel affirmed the “general rule” that “it is generally
required that royalties be based not on the entire product, but instead on the ‘smallest salable
patent-practicing unit.’” LaserDynamics, 694 F.3d at 67 (quoting Cornell Univ. v. HewlettPackard Co., 609 F. Supp. 2d 279, 283, 287–88 (N.D.N.Y. 2009)). The panel also affirmed that,

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as a “narrow exception” to the general rule, the “entire market value rule” permits an award of
“damages as a percentage of revenues or profits attributable to the entire product” only where the
patentee can show “that the patented feature drives the demand for an entire multi-component
product.” Id. By definition, the “general rule” is not new. To the extent that Ruckus relies on
LaserDynamics for its pronouncement of the entire market value rule, that rule is not new. See
Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1318 (Fed. Cir. 2011) (a pre-LaserDynamics,
Federal Circuit case discussing the origins of the entire market value rule); see also Lucent Techs.,
Inc. v. Gateway, Inc., 580 F.3d 1301, 1336 (Fed. Cir. 2009) (stating that “our law on the entire
market value rule is quite clear”). To the extent that the “smallest salable unit” language is new to
the Federal Circuit, there is no indication that such language presents a rule in itself; rather, that
language merely comprises a mechanism to employ the fundamental rule of apportionment, which
is far from new. See LaserDynamics, 694 F.3d at 67 (citing Garretson v. Clark, 111 U.S. 120, 121
(1884)); see also Steven M. Amundson, Apportionment and the Entire Market Value Rule Have
Presented Problems in Practice when Determining the Value of a Patented Invention, 23 Tex.
Intell. Prop. L.J. 1, 4 (2014) (noting that the apportionment “problem has existed for some time”).
Next, Ruckus relies on VirnetX, Inc. v. Cisco Sys., Inc., 767 F.3d 1308 (Fed. Cir. 2014).
Therein, the Federal Circuit expounded upon the smallest salable unit approach to apportionment
and held that “the requirement that a patentee identify damages associated with the smallest salable
patent-practicing unit is simply a step toward meeting the requirement of apportionment.” Id. at
1327 (emphasis added). Thus, “[w]here the smallest salable unit is, in fact, a multi-component
product containing several non-infringing features . . . the patentee must do more to estimate what
portion of the value of that product is attributable to the patented technology.” Id. That holding,

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while placing additional emphasis on the smallest salable unit language, confirms that using such
a royalty base is the means to the end. The end is apportionment, which remains the test.
Lastly, Ruckus relies on Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201 (Fed. Cir. 2014).
Therein, the Federal Circuit affirmed that “where the entire value of a machine as a marketable
article is ‘properly and legally attributable to the patented feature,’ the damages owed to the
patentee may be calculated by reference to that value.” Id. at 1227. “Where it is not, however,
courts must insist on a more realistic starting point for the royalty calculations by juries—often,
the smallest salable unit and, at times, even less.” Id. That holding adds nothing to the mix;
apportionment remains the requirement. See In re Innovatio IP Ventures, LLC Patent Litig., No.
11-cv-9308, 2013 WL 5593609, at *14 (N.D. Ill. Oct. 3, 2013) (“The requirement that a patentee
apportion his damages in every case to the value of the patented features is well over a century
old.”).
Thus, the relevant import of neither LaserDynamics, VirnetX, nor Ericsson is sufficiently
“new,” and for that reason, those cases do not provide a basis for submitting a new rebuttal expert
report. In 2012, nothing inhibited Ruckus from challenging Dr. Mody’s purported failure to
apportion damages. Ruckus’s unwary attempt to liberally construe Federal Circuit case law as a
means to revisit Dr. Mody’s damages methodology is misguided. As noted, Ruckus previously
ensured that its goal was “not to redo” prior proceedings; Ruckus has not been true to its word.
The content of the 2015 Ostiller Amended Expert report falls outside the bounds of the
2015 CMSO. Thus, the deadlines within the 2011 CMSO control, and the 2015 Ostiller Amended
Expert Report was served well after the April 6, 2012 rebuttal deadline. As a result, Ruckus
violated the 2011 CMSO. To the extent that the previously-discussed cases are relevant to show
“good cause” for retroactively amending the April 6, 2012 deadline, Ruckus has failed to make

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the requisite showing. As just explained, those cases do not alter the apportionment requirement;
at best, they clarify it. Ruckus has otherwise failed to diligently seek modification of that deadline.
2.

The Costed Bills of Materials

Ruckus argues that the Costed BOM’s were timely produced under the 2015 CMSO. In
this case, the general discovery deadline was May 4, 2012. After this case was reopened in October
2014, the Court set a deadline for limited discovery as to amended expert reports. (2015 CMSO at
2; Am. CMR at 3). Importantly, general discovery was not reopened. As noted, the 2015 Ostiller
Amended Expert Report was not permitted by the 2015 CMSO, and therefore, the Costed BOM’s,
which were produced to support the amended testimony, are also not permitted by the 2015 CMSO.
As a result, the production of the Costed BOM’s falls outside the limited discovery permitted by
the 2015 CMSO.
Thus, the deadlines within the 2011 CMSO control. The Costed BOM’s were served in
PDF format on April 8, 2015, and in Excel format with metadata on May 22, 2015. Both
productions were well after the May 4, 2012 general discovery deadline. Accordingly, Ruckus
violated the 2011 CMSO. To the extent Ruckus—in order to show “good cause” to modify the
May 4, 2012 deadline—attempts to tie the necessity of the Costed BOM’s to the previouslydiscussed case law, those cases, as discussed, do not change the underlying apportionment
requirement. Ruckus has otherwise failed to show diligence in seeking modification of the general
discovery deadline.
3.

Sanctions

By untimely serving the 2015 Ostiller Amended Expert Report and untimely producing the
Costed BOM’s, Ruckus has effectively violated both the 2011 CMSO and Rule 26. See Akeva
L.L.C. v. Mizuno Corp., 212 F.R.D. 306, 309–10 (M.D.N.C. 2002) (noting that the untimely

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disclosure of an expert report violates both the scheduling order and the Rule 26 disclosure
requirements). Rule 16(f) governs sanctions for violating scheduling orders and provides that “[o]n
motion or on its own, the court may issue any just orders, including those authorized by Rule
37(b)(2)(A)(ii)–(vii), if a party or its attorney . . . fails to obey a scheduling or other pretrial order.”
Rule 37(b)(2)(A) lists available sanctions, including “prohibiting the disobedient party from
supporting or opposing designated claims or defenses, or from introducing designated matters in
evidence.” (emphasis added). A number of factors guide the formulation of Rule 16(f) sanctions
for untimely expert disclosure: “(1) the explanation for the failure to obey the order; (2) the
importance of the expert opinion; (3) the prejudice to the opposing party by allowing the
disclosures; . . . (4) the availability of alternative or lesser sanctions”; (5) “the interest in
expeditious resolution of litigation”; (6) “a court’s need to manage its docket”; and (7) “public
policy favoring disposition of cases on the merits.” Akeva, 212 F.R.D. at 311.
In contrast, Rule 37(c)(1) governs sanctions for failing “to provide information or identify
a witness as required by Rule 26(a) or (e)” and precludes a late-disclosing party from using “that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.” (emphasis added). By its language, Rule 37(c)(1) is
self-executing. “In determining whether the failure to disclose was justified or harmless, [the
Eleventh Circuit] consider[s] the non-disclosing party’s explanation for its failure to disclose, the
importance of the information, and any prejudice to the opposing party if the information had been
admitted.” Lips v. City of Hollywood, 350 F. App’x 328, 340 (11th Cir. 2009) (citing Romero v.
Drummond Co., 552 F.3d 1303, 1321 (11th Cir. 2008)).
Under either the Rule 16(f) or 37(c) inquiries, the 2015 Ostiller Amended Expert Report
will be stricken, and the Costed BOM’s will be excluded. As to the 2015 Ostiller Amended Expert

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Report, Ruckus attempts to tie its untimely service to intervening case law. As noted, that
justification is unconvincing; apportionment was and is the underlying rule. Even if
LaserDynamic’s “smallest salable unit” language was particularly illuminating, Ruckus had ample
opportunity to address the issue prior to the 2013 stay. Ruckus has failed to account for these
discrepancies. See Halaoui v. Renaissance Hotel Operating Co., No. 6:13-cv-1839-Orl-40TBS,
2014 WL 6801807 at * 2 (M.D. Fla. Dec. 2, 2014) (citing cases and noting that the late-disclosing
party bears the burden of showing substantial justification or harmlessness). Additionally, Ruckus
can still rely on the 2012 Ostiller Expert Report, the methodology of which, according to Mr.
Ostiller, remains valid. (Ostiller Dep. Tr., Ex. 9 to Harris Mot. Exclude, Doc. 205-9, at 454:1–3).
Ruckus has otherwise failed to demonstrate the importance of the 2015 Ostiller Amended Expert
Report. Lastly, while Harris has deposed Mr. Ostiller regarding the 2015 Ostiller Amended Expert
Report, Harris has otherwise lost the benefit of post-disclosure discovery. In fact, the 2015 Ostiller
Expert Report was served just seven days before the limited discovery deadline closed. Had
Ruckus submitted the report in conjunction with the deadlines in the 2011 CMSO, Harris would
have had an entire month to conduct post-disclosure discovery. To permit Ruckus’s untimely
service would harm Harris, who has otherwise acted diligently. Therefore, under Rule 16(f), the
2015 Ostiller Amended Expert Report will be stricken, and under Rule 37(c), because Ruckus has
failed to show substantial justification or harmlessness, the report must be stricken.
As to the Costed BOM’s, Ruckus seems ignorant to the fact that its production of the
Costed BOM’s is exceptionally untimely. Ruckus’s rationale—that the Costed BOM’s only
became necessary in light of intervening case law—is without merit for the reasons stated above.
The Costed BOM’s, the significance of which was linked to the now-stricken 2015 Ostiller
Amended Expert Report, are also unimportant for those same reasons. Lastly, if the Costed BOM’s

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were permitted, Harris would effectively be precluded from engaging in related discovery, which
it would have otherwise had the opportunity to pursue. Accordingly, at least at this point, the
exclusion of the Costed BOM’s is permitted under Rule 16(f) and mandated by Rule 37(c). In sum,
the 2015 Ostiller Amended Expert Report will be stricken, and the Costed BOM’s will be
excluded.
To be clear, Ruckus’s untimely service of the 2015 Ostiller Amended Expert Report and
untimely production of the Costed BOM’s reeks of sandbagging. Such conduct tends to support
two conclusions: either Ruckus grossly misinterpreted the clear import of this Court’s scheduling
orders or Ruckus has knowingly taken liberties with its interpretations. In the case of the former,
this Court’s admonitions, as well as Harris’s conduct, should have alerted Ruckus of its
misinterpretation. Either conclusion is disconcerting.
B.

Ruckus Daubert Motion

By way of the Ruckus Daubert Motion, Ruckus argues that Dr. Mody’s testimony should
be excluded. The deadline for submitting Daubert motions was June 1, 2012. After this case was
reopened in October 2014, the parties were permitted to file “Daubert motions to address amended
expert reports.” (Am. CMR at 3). Dr. Mody timely served the 2015 Mody Supplemental Expert
Report, which accounts for updated sales figures and which, in accordance with this Court’s
instructions, does not substantively alter the methodology contained in the 2012 Mody Expert
Report. The Ruckus Daubert Motion contests Dr. Mody’s methodology, thereby effectively
challenging the 2012 Mody Expert Report. For that reason, the Ruckus Daubert Motion was not
authorized by the 2015 CMSO.
To the extent Ruckus argues that the motion was permitted to address new case law, Ruckus
misses the point. The 2015 CMSO summarily adopted the parties’ Amended CMR. The latter

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provides for amended expert reports based on new case law and for Daubert motions to address
those amended expert reports. The 2015 Mody Supplemental Expert Report does not substantively
change its methodology based on new case law. It follows that Ruckus’s corresponding Daubert
motion cannot spontaneously challenge Dr. Mody’s methodology. Even assuming that the 2015
CMSO permitted a substantive attack on Dr. Mody’s unchanged methodology based on new case
law, the case law offered by Ruckus, which was previously discussed, is not sufficiently novel.
In sum, the Ruckus Daubert Motion falls outside of the bounds of the 2015 CMSO. As a
result, the June 1, 2012 deadline in the 2011 CMSO controls, and Ruckus’s motion was filed well
after that deadline. Thus, Ruckus violated the 2011 CMSO.
As noted, Rule 16(f) outlines sanctions for violating scheduling orders. That Rule permits
“any just orders,” as well as requires the noncompliant party to “pay the reasonable expenses—
including attorney’s fees—incurred because of any noncompliance with this rule, unless the
noncompliance was substantially justified or other circumstances make an award of expenses
unjust.” (emphasis added). “Rule 16(f) sanctions were ‘designed to punish lawyers and parties for
conduct which unreasonably delays or otherwise interferes with the expeditious management of
trial preparation.’” United States v. Samaniego, 345 F.3d 1280, 1284 (11th Cir. 2003) (quoting
Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985)). “[D]istrict courts have discretion to
decide if there is a pattern of delay or a deliberate refusal to comply with court orders or directions
that justifies a sanction.” Id.
Here, Ruckus attempted to manipulate the 2015 CMSO so as to allow the reconsideration
of issues that Ruckus previously overlooked. That type of maneuvering bespeaks a level of
underhandedness that has no place on the eve of trial or at any other time. Indeed, the Court is
weary of Ruckus’s cavalier tactic of liberally interpreting Court Orders then pursuing post hoc

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justification grounded in fairness. Moreover, since this case was transferred to the undersigned,
Ruckus has exhibited a pattern of delay that remains unfettered. (See Oct. 2, 2014 Order at 1–3
(noting that, despite the case being stayed only as to one reexamination, Ruckus filed repeated
reexamination requests); Nov. 17, 2014 CMR at 15 (requesting a thirteen-month delay in trial after
the stay was lifted); Mot. Reconsideration, Doc. 224, at 10 (seeking a continuance in the alternative
to denying attorney withdrawal)).
Accordingly, while the Ruckus Daubert Motion will not be stricken, Ruckus will be
otherwise sanctioned. Particularly, Ruckus will be required to pay Harris’s expenses associated
with responding to Ruckus’s untimely Daubert motion. Moreover, Harris will be permitted to
address this issue either: (1) by substantively responding to the Ruckus Daubert Motion via a SurReply to Ruckus’s Reply (Doc. 230), see Hughes v. Kia Motors Corp., 766 F.3d 1317, 1329 (11th
Cir. 2014) (“The proponent of the expert opinion must carry the burden of establishing
qualification, reliability, and helpfulness.”), or (2) by filing a new expert report as to damages.3
Should Harris choose the latter option, Ruckus will be afforded a limited opportunity to rebut that
new report. 4

3

The latter option, which allows Dr. Mody to alter her methodology, comports with
Ruckus’s purported interpretation of the 2015 CMSO and certainly cannot be the source of
complaint by Ruckus. Indeed, this option would place Harris on the same footing as if it had
misinterpreted the 2015 CMSO in the same manner as Ruckus.
4
In the event that Harris incorporates the Costed BOM’s into a new damages report, the
Costed BOM’s will no longer be excluded, as their untimely production will then be substantially
justified.

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IV.

CONCLUSION

Accordingly, it is ORDERED and ADJUDGED as follows:
1. Harris’s Motion to Exclude Unproduced Documents Pursuant to Rule 37(c)(1) and
to Exclude the Amended Expert Report of Richard J. Ostiller (Doc. 205) is
GRANTED.
a. The 2015 Ostiller Amended Expert Report (Doc. 205-12) is stricken.
b. The Costed BOM’s are excluded.
2. The Court defers ruling on Ruckus’s Daubert Motion to Exclude the Testimony
and Opinions of Dr. Nisha Marie Mody, Ph.D. (Doc. 199). Harris may either:
a. File a Sur-reply, not to exceed twenty pages, to Ruckus’s Reply to its
Daubert motion (Doc. 230), on or before June 22, 2015; or
b. Notify this Court of Harris’s intent to serve a new expert report on damages,
on or before June 17, 2015.
3. Ruckus shall pay monetary sanctions to Harris in the amount of Harris’s reasonable
expenses incurred in responding to Ruckus’s untimely Daubert motion.
Immediately following the entry of this Court’s future Order on Ruckus’s Daubert
motion, the parties shall engage in a good faith conference to resolve the amount of
such expenses. If the parties are unable to reach an agreement, then Harris shall file
an appropriate motion to quantify such expenses within twenty-one days of entry
of the Order on Ruckus’s Daubert motion.

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DONE and ORDERED in Orlando, Florida on June 12, 2015.

Copies furnished to:
Counsel of Record

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