CIVIX-DDI LLC v. Hotels.com L.P. et al

Filing 835

WRITTEN Opinion entered by the Honorable Amy J. St. Eve on 12/6/2012: The Court denies Hotels.com's Motion in Limine No. 2 in part as moot 755 . The Court directs Civix to supplement its Response 799 to Hotels.com's Motion in Limine No. 2 755 with evidence establishing the basis for Dr. Ophir Frieder's modification opinions on or before December 11, 2012. Civix may respond to that supplement on or before December 14, 2012. Mailed notice (tlm)

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Amy J. St. Eve

CASE NUMBER

05 C 6869

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

12/6/2012

CIVIX-DDI LLC vs. Hotels.Com L.P., et al.

DOCKET ENTRY TEXT

The Court denies Hotels.com's Motion in Limine No. 2 in part as moot [755]. The Court directs Civix to
supplement its Response [799] to Hotels.com’s Motion in Limine No. 2 [755] with evidence establishing the
basis for Dr. Ophir Frieder’s modification opinions on or before December 11, 2012. Civix may respond to
that supplement on or before December 14, 2012.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Hotels.com Motion in Limine No. 2 seeks to preclude Civix’s technical expert, Dr. Ophir Frieder,
from “(1) opining on the scope and meaning of the Maporama Agreement and the DeCarta Agreements and
(2) opining on any modification of geocodes provided to Hotels.com by Maporama or DeCarta..” (R. 755,
Def.’s MIL No. 2 at 8.)

ANALYSIS
Civix concedes that “Dr. Frieder will not offer legal opinions on contract interpretation.” (R. 799,
Pl.’s Resp. MIL No. 2 at 2.) Hotels.com’s motion is moot, therefore, with respect to any legal opinions on
contract interpretation, such as what is required to have protection of a license or what constitutes
infringement. Civix argues, however, that “[t]o the extent Hotels.com asserts that Dr. Frieder cannot rely on
and testify regarding the contents of the Maporama and DeCarta agreements in support of his technical
opinions, Hotels.com goes too far.” (Pl.’s Resp. MIL No. 2 at 3-4.) The Court agrees with Civix that Dr.
Frieder may apply his education, training, knowledge and skills in the field of scalable and distributed
information systems to render opinions to explain what the technology and data in the Maporama Agreement
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STATEMENT
and DeCarta Agreement was and to opine on whether Hotels.com used such technology. (Pl.’s Resp. MIL
No. 2 at 4-5.) Such opinions do not require contract interpretation or legal conclusions, but rely on Dr.
Frieder’s technological expertise.

With regards to (2), Hotels.com specifically argues that Dr. Frieder improperly bases his opinions
about modifications made to geocodes provided to Hotels.com by Maporama or DeCarta on unreliable
assumptions and speculation. (Def.’s MIL No. 2 at 7.) Expert testimony based on unsupported speculation is
improper. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993) (stating that expert opinion must be more than “subjective belief or unsupported speculation”);
Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir.2010) (finding that expert testimony mat
not “be based on subjective belief or speculation”).

To support its argument, Hotels.com cites to sections of Dr. Frieder’s testimony where he appears to
rely on his reading of the Maporama Agreement and DeCarta Agreement when opining that Maporama and
DeCarta modified the geocodes. (Def.’s MIL No. 2 at 3, 7, Ex. 5 Frieder Dep. at 296:14-15; 296:20-297:2;
323:18-20.) Dr. Frieder also testified that he did not know how Maporama and DeCarta modified the
geocode data obtained from Navteq. (Id. at 7, Ex. 5 Frieder Dep. at 322:23-323:2; 323:8-13.) Civix fails to
provide any basis of Dr. Frieder’s modification opinions to counter Hotels.com’s claim that he bases his
opinion on his interpretation of the two agreements. Rather, without citation to any deposition testimony or
section of Dr. Frieder’s expert report, Civix’s argues that Dr. Frieder’s opinion that Maporama and DeCarta
did not simply “pass through” to Hotels.com the geocode data that they received from Navteq “is based on a
review and analysis of documents describing the substance of the geocode data that Navteq provided to
Maporama, the substance of the technology Maporama and DeCarta provided to Hotels.com, and
Hotels.com’s use of that technology.” (Pl.’s Resp. MIL No. 2 at 2.) In addition to Civix failing to cite to any
testimony by Dr. Frieder to support its argument, Dr. Frieder’s expert report does not include any reference to
any geocode modification. (Id. at Ex. A, Rule 26(A)(2)(B) Report of Ophir Frieder.) Without understanding
on what specifically Dr. Frieder bases his opinions about modification, the Court cannot determine if he is
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STATEMENT
speculating or offering testimony within the scope of his expertise. The Court, therefore, directs Civix to
supplement its Response to Hotels.com’s Motion in Limine No. 2 with evidence, such as transcript
testimony, establishing the basis for Dr. Frieder’s modification opinions on or before December 11, 2012.
Civix may respond to that supplement on or before December 14, 2012. The Court will rule on the remainder
of Hotels.com Motion in Limine No. 2 at that time.

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