NXP B.V. v. Research in Motion LTD. et al

Filing 411

ORDER granting 381 Motion to Strike Dr. Alpert and Mr. Weinstein's Supplemental Expert Witness Reports. Signed by Magistrate Judge Thomas B. Smith on 3/21/2014. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NXP B.V.,
Plaintiff,
v.

Case No. 6:12-cv-498-Orl-YK-TBS

BLACKBERRY LIMITED and BLACKBERRY
CORPORATION,
Defendants.
_____________________________________/
ORDER
Pending before the Court is BlackBerry’s Motion to Strike Untimely Expert
Reports of Donald Alpert and Roy Weinstein (Doc. 381). Plaintiff has not filed a
response in opposition to the motion and the time within to do so has expired.
Five business days before the trial of this case is scheduled to begin, Plaintiff
served three supplemental expert witness reports on Defendants. (Docs. 381-1, 3812, and 381-3). Defendants have motioned the Court to strike all three reports.
Federal Rule of Civil Procedure 26(a)(2)(C) requires parties to disclose all
expert evidentiary material they may rely on at trial, and that the disclosure be made
at the times established by the court. Rule 26(e) imposes a duty on the parties to
supplement their Rule 26(a) disclosures “if the 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 or in writing; or as ordered by the court.” F ED.R.CIV.P. 26(e)(1).
For expert witnesses “[a]ny additions or changes to this information must be disclosed

by the time the party’s pretrial diclosures under Rule 26(a)(3) are due.” F ED.R.CIV.P.
26(e)(2).
Rule 37(c)(1) provides an enforcement mechanism for Rule 26 by forbidding
the use at trial, of information required to be disclosed by Rule 26(a) that has not been
properly disclosed. Rule 37 makes an exception if the failure to timely disclose the
required information ”was substantially justified or is harmless.” F ED.R.CIV.P.
37(c)(1).
The Court’s Case Management and Scheduling Order (“CMSO”) provides:
On or before the date set forth in the above table for the disclosure
of expert reports, the party shall fully comply with Federal Rule of
Civil Procedure 26(a)(2) and 26(e). Expert testimony on direct
examination at trial will be limited to the opinions, bases, reasons,
data, and other information disclosed in the written expert report
disclosed pursuant to this Order. Failure to disclose such
information may result in the exclusion of all or part of the testimony
of the expert witness.
(Doc. 58 at 3). The parties had until July 17, 2013 to disclose their expert witnesses
and until August 21, 2013 to disclose their rebuttal experts. (Doc. 113).
Defendants object to the Second Supplemental Expert Report of Donald Alpert,
Ph.D Concerning Infringement of U.S. Patent No. 6,434,654 dated March 13, 2014,
and the Supplemental Expert Report of Donald Alpert, Ph.D Concerning Infringement
of U.S. Patent No. 6,501,420 dated March 14, 2014. (Docs. 381-1 and 381-3). In
these supplemental reports, Dr. Alpert cites to additional documents he says were
produced after the close of discovery, which support his opinions.
Defendants argue that both of Dr. Alpert’s supplemental reports should be
stricken because he has failed to provide any notice of the supplemental opinions he
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intends to present at trial, and his statements expand the scope of his opinions.
Defendants’ arguments miss the mark. Dr. Alpert has not offered any new opinions in
his supplemental reports. What he has done is reference additional documents which
add to the basis and reasons for his opinions. However, both reports are untimely
under Rule 26(e)(2) and the CMSO. And, neither supplement purports to correct any
inaccuracy or incompleteness in Dr. Alpert’s opinions. Accordingly, both
supplemental reports are STRICKEN.
Defendants also complain about the Supplemental Expert Report of Roy
Weinstein (Doc. S-399). Mr. Weinstein cites to additional documents which he says
confirm his previously voiced opinions. He also states that he may rely on these
additional documents at trial. (Id. at 8). In addition, Mr. Weinstein provides what
Defendants say are new, increased damage figures based upon press releases, many
of which were available before he submitted his initial expert report. (Id. at 9). In
addition to being untimely, Defendants argue that these new damage estimates
should be excluded as speculative and unreliable under Rules 403 and 708 of the
Federal Rules of Evidence. (Id.).
The Court agrees that Mr. Weinstein’s supplemental report is untimely and that
Plaintiff has not shown that the late disclosure of this information is ”substantially
justified or is harmless.” F ED.R.CIV.P. 37(c)(1). Accordingly, Mr. Weinstein’s
supplemental report is STRICKEN.

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DONE AND ORDERED in Orlando, Florida, on March 21, 2014.

Copies to all Counsel

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