Harris Corporation v. Ruckus Wireless, Inc.

Filing 269

ORDER granting 193 Motion to Exclude Ruckus' Invalidity Expert Opinions of Dr. Acampora; denying as moot 201 Daubert Motion to Exclude the Expert Report of Dr. Anthony Acampora; granting 204 Motion to Exclude Ruckus' Non-Infringement Expert Opinions of Dr. Acampora; denying 250 Motion to Substitute Expert Witness. Signed by Judge Carlos E. Mendoza on 6/24/2015. (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: Plaintiff Harris Corporation’s
(“Harris”) Motion to Exclude Ruckus’s Invalidity Expert Opinions of Dr. Acampora (the “First
Motion to Strike,” Doc. 193), to which Defendant Ruckus Wireless, Inc. (“Ruckus”) responded,
(see Doc. 202); Harris’s Daubert Motion to Exclude the Expert Reports of Dr. Anthony Acampora
Regarding U.S. Patent No. 6,504,515 (the “Harris Daubert Motion,” Doc. 201), to which Ruckus
responded, (see Doc. 212); Harris’s Motion to Exclude Ruckus’s Non-Infringement Expert
Opinions of Dr. Acampora (the “Second Motion to Strike,” Doc. 204), to which Ruckus responded,
(see Doc. 223); and Ruckus’s Motion to Substitute Expert Witness (the “Motion to Substitute,”
Doc. 250), to which Harris responded, (see Doc. 255). The primary issue raised by these motions
concerns the exclusion of Ruckus’s purported expert witness—Dr. Anthony S. Acampora (“Dr.
Acampora”). For the reasons set forth below, Dr. Acampora’s testimony will be excluded.
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”).

Page 1 of 18

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 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 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. (Id. at 2; see also Am. CMSO, Doc. 87, at 2; Second Am. CMSO, Doc. 100, at
2). In accordance with the March 2, 2012 deadline, Harris identified and served the expert report
of Dr. Harry Bims (“Dr. Bims”) regarding infringement of both the ’515 and ’684 Patents. (First
Mot. Strike at 3). Similarly, Ruckus timely identified and served the expert reports of Dr. John
Thompson, Ph.D. (“Dr. Thompson”) (the “2012 Thompson Invalidity Report”) regarding
invalidity of the ’515 Patent and Dr. Xudong Wang, Ph.D. (“Dr. Wang”) (the “2012 Wang
Invalidity Report”) regarding invalidity of the ’684 Patent. (Id.). Subsequently, in accordance with
the April 6, 2012 deadline, Harris served the rebuttal expert report of Dr. Bims (the “2012 Bims
Rebuttal Validity Report”) as to validity of both Patents-in-Suit. (Id. at 3–4). Ruckus also timely
served the rebuttal report of Dr. Thompson as to non-infringement of the ’515 Patent but did not
serve a rebuttal report from Dr. Wang as to non-infringement of the ’684 Patent. (Id. at 4). Harris
deposed neither Dr. Thompson nor Dr. Wang. (Resp. to First Mot. Strike, Doc. 202, at 3).

Page 2 of 18

After proceeding through claim construction, (see Doc. 121), summary judgment, (see
Doc. 125), and Daubert motions, (see Doc. Nos. 123–24), 1 the case was stayed on February 21,
2013, pending reexamination of the ’684 Patent by the United States Patent and Trademark Office
(“PTO”), (see Feb. 21, 2013 Order, Doc. 132; see also Mar. 29, 2013 Order, Doc. 138, at 3
(affirming the 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 twice
requested reexamination of the ’515 Patent, 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. Primarily via footnote, the parties noted that Dr. Wang was purportedly
no longer available for trial and that the parties disagreed about whether Ruckus could submit “an
entirely new expert report by a new expert.” (Nov. 17, 2014 CMR at 6 n.15; see also id. at 11
n.19).

1

Ruckus previously filed a Daubert Motion to Exclude Expert Testimony of Harry Bims,
Ph.D. (Doc. 72), which was denied, (see Doc. 124).

Page 3 of 18

As a result of the impasse, 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).
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’s 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’s 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.

Page 4 of 18

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 reexaminations 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.
Thereafter, the parties proceeded through limited claim construction, and in the March 2,
2015 Order on claim construction (Doc. 190), the Court further 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.”)).
In the meantime, Ruckus served its Second Supplemental Disclosure (Doc. 193-6), which,
for the first time, disclosed Dr. Acampora as Ruckus’s expert, who was “expected to testify

Page 5 of 18

regarding his opinions on invalidity and non-infringement with respect” to both Patents-in-Suit.
(Id. at 1). Despite Harris’s objection to the disclosure, (see Ex. F to First Mot. Strike, Doc. 193-7,
at 12), 2 on March 6, 2015, Ruckus served the expert report of Dr. Acampora (the “2015 Acampora
Invalidity Report”) regarding invalidity of both Patents-in-Suit, (see First Mot. Strike at 6). That
same day, Harris served the amended expert report of Dr. Bims (the “2015 Bims Amended
Infringement Report”) regarding infringement of the ’684 Patent only. (Second Mot. Strike at 2).
According to Harris, “[b]ecause the claims of the ’515 Patent were not amended during the
reexamination, Dr. Bims did not amend his opinions with respect to the ’515 Patent.” (Id.).
Subsequently, on April 3, 2015, Ruckus served the rebuttal expert report of Dr. Acampora
(the “2015 Acampora Rebuttal Non-Infringement Report”) regarding non-infringement of both
Patents-in-Suit. (Id. at 2–3). Harris also served the amended rebuttal expert report of Dr. Bims
regarding validity of the Patents-in-Suit. (See Mot. Substitute, Doc. 250, at 6). On April 10, 2015,
Harris deposed Dr. Acampora. (Harris Daubert Motion at 5).
II.

DISCUSSION

The primary issue before the Court is whether Dr. Acampora’s testimony should be
excluded. Harris contends that the disclosure of Dr. Acampora was not permitted by the 2015
CMSO and, therefore, should be excluded based on Ruckus’s untimely disclosure. On the other
hand, Ruckus argues that its disclosure was permitted by the 2015 CMSO and that, in the event
that its disclosure was untimely, Dr. Acampora should nonetheless be permitted to testify. Harris’s
arguments are well-taken.

2

Where, as here, an attachment contains multiple documents, pinpoint citations will refer
to the electronic page number of the attachment.

Page 6 of 18

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). 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.
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
the other parties during the discovery process.” Fed. R. Civ. P. 26(e)(1). “The right to provide
supplementation under Rule 26(e)(1) ‘does not cover failures of omission because the expert did
an inadequate or incomplete preparation.’” Taylor v. Dean, No. 5:05-cv-397-Oc-10GRJ, 2007 WL
7622152, at *4 (M.D. Fla. Jan. 19, 2007) (quoting Akeva L.L.C. v. Mizuno Corp., 212 F.R.D. 306,

Page 7 of 18

310 (M.D.N.C. 2002)). Such supplementation must occur within the time limits “ordered by the
court.” Fed. R. Civ. P. 26(e)(1).
A.

Untimely Disclosure

The deadline for submitting burden-of-proof expert reports was March 5, 2012, and 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 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).
1.

The 2015 CMSO

Ruckus maintains that the 2015 CMSO’s reference to “amended” burden-of-proof expert
reports permitted Ruckus to employ a new expert to file a new report on invalidity. That argument
is misguided. The plain language of the 2015 CMSO mentions “amended” reports; it does not
mention new reports, let alone new experts. Ruckus’s attempt to draw a distinction between the
terms “amended” and “supplemental,” (see Resp. to First Mot. Strike at 11), is unconvincing.
Even if the plain language of the 2015 CMSO were ambiguous, the context is even more
telling. Particularly, the 2015 CMSO adopted the Amended CMR, which limited amended burdenof-proof expert reports to clearly-defined, post-stay developments, the import of which focused on
prior claim construction and reexamination proceedings. Those limitations do not bespeak a
wholesale redraft of expert testimony; they indicate a narrow means for revision. Additionally,
prior to the entry of the 2015 CMSO, the Court instructed that it was “not willing to go and rehear
matters that have already been determined by Judge Honeywell.” (Telephonic Conference Tr.,

Page 8 of 18

Nov. 25, 2014, at 9:2–3). On the same note, the 2015 CMSO limited summary judgment to issues
raised during the reexamination and pre-stay claim construction. Such a restricted approach to
summary judgment signifies a restricted approach to amending the expert reports, which would
have been a fundamental ingredient of summary judgment. (See generally Ruckus Mot. Summ. J.,
Doc. 64). Stated differently, the former restriction should have indicated the latter restriction; it
would have been more than reasonable for Ruckus to connect the dots.
The content of the 2015 Acampora Invalidity Report is also revealing. Therein, Dr.
Acampora purports to have considered the following materials in drafting the report:
(1) the Patents-In-Suit along with their associated prosecution
history and reexaminations; (2) the Court’s Claim Construction
rulings; (3) selected prior art; (4) Plaintiff’s final infringement
contentions; (5) Dr. Bims’s Infringement Report dated March 5,
2012, and (6) the Rebuttal Report of Dr. Harry Bims and the Reports
of Dr. Xudong Wang and Dr. John Thompson, dated April 6, 2012,
March 5, 2012, and March 5, 2012, respectfully.
(Doc. 193-8, at 2). Among other issues, Dr. Acampora’s attempt to rebut a rebuttal report, by
considering the 2012 Bims Rebuttal Validity Report, is far amiss. The 2015 Acampora Invalidity
Report is not limited to amending the 2012 Thompson Invalidity Report or the 2012 Wang
Invalidity Report and is well outside the bounds of the 2015 CMSO. The use of a new expert to
file, what amounts to, an entirely new expert report was not permitted by the 2015 CMSO.
In addition to the 2015 Acampora Invalidity Report, Ruckus also served the 2015
Acampora Rebuttal Non-Infringement Report, which attempts to rebut the 2015 Bims Amended
Infringement Report. As an initial matter, the 2015 Acampora Rebuttal Non-Infringement Report
raises two red flags. First, it offers a rebuttal as to infringement of the ’684 Patent, which is an
opportunity that Dr. Wang forwent in 2012. Second, it unilaterally addresses the ’515 Patent,
which was not substantively addressed by the 2015 Bims Amended Infringement Report. Apart

Page 9 of 18

from those issues, Dr. Acampora is a wholly new expert, who filed, what amounts to, an entirely
new rebuttal report; as noted before, neither were permitted by the 2015 CMSO.
In sum, despite Ruckus’s unwavering contention that the disclosure of Dr. Acampora and
corresponding reports complied with the 2015 CMSO, (see Mot. Substitute at 6–8), such disclosure
and reports were not contemplated by the 2015 CMSO. Therefore, the deadlines in the 2011 CMSO
control.
The 2015 Acampora Invalidity Report was filed well after the March 5, 2012 deadline, and
the 2015 Acampora Rebuttal Non-Infringement Report was filed well after the April 6, 2012
deadline. Thus, the disclosure and reports violate the 2011 CMSO.
2.

Modification of the 2011 CMSO

To the extent Ruckus seeks modification of the 2011 CMSO, that request will be denied.
As an initial matter, Ruckus’s commitment to the false notion that its use of Dr. Acampora was
permitted by the 2015 CMSO has clouded its ability to fully grasp the issue. In fact, as recently as
June 9, 2015, Ruckus averred that its disclosure of Dr. Acampora was permissible, (Id. at 11
(“Ruckus did not disobey any order.”)), notwithstanding this Court’s clear admonitions that “Dr.
Acampora is not your expert” and “hasn’t been disclosed in accordance with the rules,”
(Telephonic Conference Tr., May 26, 2015, Doc. 247, at 4:24–5:1). To that end, Ruckus only
affords cursory attention to modifying the 2011 CMSO.
“A party seeking the extension of an already-expired scheduling order deadline must show
both good cause and excusable neglect.” Payne v. C.R. Bard, Inc., No. 14-12603, 2015 WL
1435314, at *3 (11th Cir. Mar. 31, 2015) (emphasis in original) (citing Fed. R. Civ. P. 6(b)(1),
16(b)(4)). Particularly, according to Federal Rule of Civil Procedure 16(b)(4), a Rule 16(b)
scheduling order “may be modified only for good cause and with the judge’s consent.” (emphasis

Page 10 of 18

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.).
Additionally, Rule 6(b)(1)(B) provides that courts may extend deadlines “on motion made after
the time has expired if the party failed to act because of excusable neglect.” (emphasis added). A
determination regarding excusable neglect requires analysis of “all pertinent circumstances,
including ‘the danger of prejudice to the nonmovant, the length of the delay and its potential impact
on judicial proceedings, the reason for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good faith.’” Payne, 2015 WL 1435314,
at *3 (quoting Advanced Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1325 (11th Cir. 1996)).
As to good cause, Ruckus has failed to show good cause to retroactively modify the 2011
CMSO. Particularly, as will be explained more fully below, (see infra subsection II.B), Ruckus
has failed to sufficiently establish the unavailability of either Dr. Thompson or Dr. Wang, which
is Ruckus’s purported basis for disclosing Dr. Acampora. Even assuming that it had, Ruckus has
not acted diligently in seeking modification of the 2011 CMSO. First, Ruckus knew of Dr.
Thompson and Dr. Wang’s alleged unavailability in October 2014. Not until after being prompted
to do so, (see Telephonic Conference Tr., May 26, 2015, at 6:12–7:20), did Ruckus request
permission to use its late-disclosed expert. Ruckus’s unwary attempt to raise this issue by way of
footnote in the November 17, 2014 CMR was far from a sufficient request for relief. See Fed. R.
Civ. P. 7(b); see also M.D. Fla. R. 3.01(a). Ruckus’s eventual request came less than two months
prior to the trial term. In the meantime, rather than seek Court approval for using its late-disclosed
expert, Ruckus unilaterally “decided that . . . it was more efficient to have one expert opine on
both patents[] and . . . decided to retain Dr. Acampora.” (Resp. to First Mot. Strike at 4 (emphasis

Page 11 of 18

added)). However, that decision was not Ruckus’s to make. Indeed, it seems that Ruckus has taken
a significant, and rather unnecessary, risk in proceeding with Dr. Acampora without permission to
do so.
Insofar as Ruckus legitimately interpreted the 2015 CMSO, as well as relevant pre-2015
CMSO proceedings, to permit the use of Dr. Acampora, that excuse is not sufficient to show
diligence. Without a doubt, Ruckus should have promptly realized its mistaken interpretation
following this Court’s admonitions during the November 25, 2014 Telephonic Conference and in
the March 2, 2014 Claim Construction Order, (see supra pp. 4–5), as well as Harris’s consistent
objections to the use of Dr. Acampora. Nevertheless, Ruckus’s counsel’s own assurances “not to
redo” prior proceedings suggest that Ruckus was well aware that a complete redraft of its expert
reports, without permission to do so, was out of bounds. Thus, Ruckus failed to diligently seek an
extension of the 2011 CMSO deadline.
As to excusable neglect, Ruckus has also failed to demonstrate excusable neglect for
missing the 2011 CMSO’s deadlines. To begin, this case does not present a scenario where Ruckus
initially missed the original 2011 CMSO deadline. Rather, Ruckus timely identified Drs.
Thompson and Wang and served relevant expert reports in 2012. Three years later and on the brink
of trial, Ruckus now wishes to wholly substitute those experts. Even assuming that Drs. Thompson
and Wang were presently unavailable and that, as a result, Ruckus was presently situated as if it
had never disclosed an expert, excusable neglect does not exist. First, as noted, the length of the
delay—between learning of its experts’ unavailability and moving for modification of the 2011
CMSO—was considerable in light of the present posture of this case. The result of that delay has
significantly impacted the litigation by over-complicating the present proceedings and requiring
the expenditure of significant resources by both the parties and the Court. The delay will continue

Page 12 of 18

to impact the proceedings. Second, the reason for the delay—Ruckus’s misinterpretation of the
2015 CMSO—is, as previously noted, unconvincing; every indication was that the use of Dr.
Acampora was not permitted by the 2015 CMSO, and Ruckus had every opportunity to previously
move for the relief it now seeks. Ruckus has been in complete control of the delay and is solely
responsible. Fourth, Ruckus’s good faith is at least questionable. Ruckus previously assured the
Court that its goal was “not to redo” prior proceedings; yet, its conduct indicates otherwise.
Moreover, Ruckus’s arguments based in self-interested pragmatism—through which Ruckus
continually avers that the use of Dr. Acampora will streamline the litigation and promote a
meritorious resolution—proceed in ignorance of Ruckus’s wrongdoing, in lieu of selfvictimization.
Lastly, Ruckus adamantly argues that the prejudice to Harris is minimal. That argument is
primarily based on the fact that Harris was able to depose Dr. Acampora and that the use of Dr.
Acampora eliminates Ruckus’s need to use a separate expert as to each of the Patents-in-Suit,
thereby simplifying trial. That argument largely ignores the prejudice that Harris has already
experienced. First and foremost, Harris has expended significant resources in moving to exclude
Dr. Acampora. Additionally, Harris had to prepare a comprehensive rebuttal to an invalidity report,
after already having done so in 2012. As to future prejudice, the effect of Ruckus’s untimely
disclosure is that Harris has lost the opportunity to broadly revisit its burden-of-proof expert
reports; all the while, Ruckus did. Harris also lost the benefit of sufficient post-rebuttal discovery,
as well as the opportunity for all-inclusive summary judgment based on those expert reports. While
Harris was able to serve a rebuttal report and depose Dr. Acampora, the fact that Harris employed
some level of damage control in response to Ruckus’s noncompliance does little to minimize
Harris’s prejudice. On the other hand, Ruckus has gained an entirely new expert with entirely new

Page 13 of 18

testimony, including a chance to mount a rebuttal to infringement of the ’684 Patent, which is an
opportunity that Ruckus previously forwent. Harris, by properly adhering to the 2015 CMSO,
missed those opportunities.
In sum, Ruckus has demonstrated neither good cause to modify the 2011 CMSO nor
excusable neglect for violating the 2011 CMSO.
B.

Sanctions

By untimely identifying Dr. Acampora and by untimely serving his reports, Ruckus has
effectively violated both the 2011 CMSO and Rule 26. See Akeva, 212 F.R.D. at 309–10 (noting
that the untimely 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

Page 14 of 18

was substantially justified or is harmless.” (emphasis added). By its language, Rule 37(c)(1) is
self-executing. “The burden of establishing that a failure to disclose was substantially justified or
harmless rests on the nondisclosing party.” Mitchell v. Ford Motor Co., 318 F. App’x 821, 824
(11th Cir. 2009) (quotation omitted). “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)). According to the
Eleventh Circuit, “the first and third factors, together, can outweigh the second.” Romero, 552 F.3d
at 1321 (citing Bearint ex rel. Bearint v. Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1353 (11th Cir.
2004)).
Under either approach, the testimony in the 2015 Acampora Invalidity Report and the 2015
Acampora Rebuttal Non-Infringement Report will be excluded. To begin, Ruckus has failed to
sufficiently explain its purported basis for violating the 2011 CMSO, i.e., Drs. Thompson and
Wang’s unavailability.
As to Dr. Thompson, Ruckus offers the following reasons in support of Dr. Thompson’s
unavailability: he would require significant preparation time based on his unfamiliarity with the
events “that post-date [his] 2012 report”; and it would be difficult for him to travel from his home
in the United Kingdom to Florida for trial. (Thompson Decl., Ex. C to Mot. Substitute, Doc. 2503, ¶¶ 4–6). The first reason is a nonstarter. Ruckus has offered no reason why Dr. Thompson could
not have begun reviewing the relevant material as early as November 2014, when the stay was
lifted; in fact, Dr. Acampora did not become substantially involved in this case until February
2015. (See Acampora Dep., Ex. 2 to Harris Daubert Mot., Doc. 201-2, at 14:4–8). The second

Page 15 of 18

reason is also without merit. The purported difficulty is that Dr. Thompson “would also be required
to obtain travel authorization from the United States government” to travel to Florida, (Thompson
Decl. ¶ 6); without more, that reason is inadequate.
As to Dr. Wang, Ruckus offers the following reasons in support of Dr. Wang’s
unavailability: he has a scheduling conflict; he relocated from the United States to China and has
“medical issues with [his] back,” which inhibit his ability to travel; and he further declines to
participate in this case. (Wang Decl., Ex. B to Mot. Substitute, Doc. 250-2, ¶¶ 3–5). The first
reason falls short; its defect is that, at the time Dr. Wang purportedly made that determination, the
trial term had not even been set. The third reason, without more, is also inadequate. As to the
second reason, despite this Court’s repeated instructions to do so, Ruckus has failed to elaborate
or provide sufficient evidence of Mr. Wang’s purported medical condition. Specifically, Ruckus
previously argued that Dr. Wang could not travel “from China due to medical issues with his
spine.” (Resp. to First Mot. Strike at 4). As a result, during the May 26, 2015 Telephonic Hearing,
this Court repeatedly admonished Ruckus that it needed “to file some sort of
motion . . . explain[ing] in detail why [Drs. Thompson and Wang] are now unavailable.”
(Telephonic Hr’g Tr., May 26, 2015, at 6:15–17). Where that was unclear, the Court further stated
that Ruckus needed “to spell out in detail why your two experts . . . are unavailable and whatever
arguments and case law you want to supply.” (Id. at 7:15–17; see also id. 5:6–12 (“I certainly don’t
have enough information to make that determination at this point based on what you’ve
disclosed.”), 6:3–4 (“I don’t have enough details to make an informed decision on that.”), 6:8–11
(“So I don’t know if that means that one of them or both of them are permanently unable to travel
or unwilling to travel or meet some other definition of unavailability.”)). Despite those unequivocal

Page 16 of 18

instructions, Ruckus has not offered any further explanation or evidence of Dr. Wang’s medical
condition, and in light of those instructions, Ruckus’s failure to do so is telling.
All remaining factors favor excluding Dr. Acampora. First, the importance of Dr.
Acampora’s testimony is not significant; Ruckus already has two experts that can opine as to
invalidity and non-infringement of the Patents-in-Suit. Second, the prejudice to Harris is, as
already noted, (see supra subsection II.A.2), considerable. Third, lesser sanctions would be less
effective. That fact is evidenced by Ruckus’s pattern of disregarding court orders and by the
significance of this case; Ruckus has also offered no alternative sanctions. Fourth, the interest of
expeditious resolution of this litigation warrants excluding Dr. Acampora; while doing so may
result in a short term delay, putting a stop to Ruckus’s repeated failure to comply with deadlines
will favor an expeditious resolution in the long run. It is noteworthy that the underlying goal of the
2015 CMSO was to provide for expeditious, summary proceedings prior to trial. Fifth, the Court’s
need to manage its docket favors enforcing its scheduling orders. Lastly, the public policy in
deciding cases on the merits favors tying Ruckus to its previously-disclosed experts rather than
endorsing the type of gamesmanship that has been undertaken. In other words, precluding Dr.
Acampora will ensure that this case is decided on its substance, not as a result of Ruckus’s late
disclosure and the ensuing whirlwind.
In sum, under Rule 16(f), Dr. Acampora will be excluded. Additionally, under Rule
37(c)(1), Ruckus has failed to show substantial justification or harmlessness, and therefore, Dr.
Acampora’s testimony must be excluded.

Page 17 of 18

III.

CONCLUSION

Accordingly, it is ORDERED and ADJUDGED as follows:
1. Plaintiff Harris Corporation’s (“Harris”) Motion to Exclude Ruckus’s Invalidity
Expert Opinions of Dr. Acampora (Doc. 193) is GRANTED to the extent it seeks
the exclusion of Dr. Acampora.
2. Harris’s Daubert Motion to Exclude the Expert Reports of Dr. Anthony Acampora
Regarding U.S. Patent No. 6,504,515 (Doc. 201) is DENIED as moot.
3. Harris’s Motion to Exclude Ruckus’s Non-Infringement Expert Opinions of Dr.
Acampora (Doc. 204) is GRANTED to the extent it seeks the exclusion of Dr.
Acampora.
4. Defendant Ruckus Wireless, Inc.’s Motion to Substitute Expert Witness (Doc. 250)
is DENIED.
DONE and ORDERED in Orlando, Florida on June 24, 2015.

Copies furnished to:
Counsel of Record

Page 18 of 18