ClearPlay v. Dish Network LLC et al

Filing 896

ORDER granting in part and denying in part 864 Motion to Strike 864 Redacted MOTION to Strike Testimony of Nicholas Feamster, Ph.D., 868 Redacted MOTION to Strike ; granting in part and denying in part [86 8] Motion to Strike 864 Redacted MOTION to Strike Testimony of Nicholas Feamster, Ph.D., 868 Redacted MOTION to Strike. The order provides a curative instruction; a time to suggest text edits to that instruction; and a limitation on further development of related issues. Signed by Judge David Nuffer on 3/8/23. (DN)

Case 2:14-cv-00191-DN-CMR Document 896 Filed 03/08/23 PageID.40595 Page 1 of 4

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
CLEARPLAY, INC.,
Plaintiff,

MEMORANDUM DECISION AND
ORDER ON MOTIONS TO STRIKE

v.
Case No. 2:14-cv-00191
DISH NETWORK L.L.C., and
ECHOSTAR TECHNOLOGIES L.L.C.,

District Judge David Nuffer

Defendant.
This order deals with issues raised effectively by the parties in accelerated briefing.1
Their dispute about the use and interpretation of source code by Dr. Feamster, ClearPlay’s expert
witness on infringement, threatens to subsume the resources of the court midtrial. This document
is necessarily brief.
Trial Testimony Disputes: While testifying Friday March 3, 2023, Dr. Feamster made
accusations that DISH withheld source code.2 A heated dispute between Dr. Feamster and DISH
counsel Kurt Pankratz is in that record. Dr. Feamster’s statements were made in response to a
vigorous cross-examination; arose unexpectedly; were a singular occurrence in an otherwise civil
trial; reflect the stress of confronting a reality contrary to that anticipated; and did not take a
significant amount of time. The parties’ divergent views of who is at fault and should be
sanctioned are well discussed in the copious briefing.

Defendants’ Motion to Strike the Testimony of Nicholas Feamster, Ph.D. (Dish Motion), docket no. 864, filed
March 5, 2023; [ClearPlay’s] Motion to Strike (ClearPlay Motion), filed March 6, 2023; Defendants’ Opposition to
Clearplay’s Motion to Strike (Dish Opposition), docket no. 887, filed March 7, 2023; Clearplay’s Response in
Opposition to Dish’s Motion to Strike Dr. Feamster’s Testimony (ClearPlay Opposition), docket no. 893, filed
March 7, 2023.
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2

Dish Motion at 10-12.

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Did DISH Comply with Obligations of Discovery, Disclosure, and Patent Rules? The
parties discuss collateral issues of obligations of discovery, disclosure, and objections required
by the local patent rules. The nature of the source code escrow computer and the process of its
delivery to ClearPlay has been partially documented.3 ClearPlay complains justifiably about its
lack of understanding and difficulty in ascertaining the status of the source code escrow
computer and the source code itself.4 But with a seated jury, approaching the eighth day of a
ten-day trial setting, being one day behind schedule, it is not possible to investigate more at this
time. On the current record, I do not find misconduct by any party related to the code production
and delivery process or any failure to provide an objection required by the local patent rules,
though serious misunderstandings clearly occurred.
Factors Considered: Factors I have considered in fashioning a mid-trial remedy include
(1) the degree of actual prejudice to the defendant (fairly low given Dish’s ability to present its
own views that its source code does not infringe); (2) the amount of interference with the judicial
process (fairly low because both parties have opportunity to present evidence on whether Dr.
Feamster did or did not use the correct source code); (3) the culpability of the litigant (low,
because of the unanticipated and spontaneous nature of the Feamster – Pankratz discussion);
(4) whether the court warned the party in advance that dismissal of the action would be a likely
sanction for noncompliance (inapplicable); and (5) the efficacy of lesser sanctions (meaning the
fit of sanctions to the alleged offense) (Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.
1992)).

3

Dish Opposition and Minnick March 7 Declaration, docket no. 887-1, filed March 7, 2023.

4

ClearPlay Opposition and email exchange March 6, 2023, docket no. 892-10, filed March 7, 2023

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Curative Instruction: These facts and factors suggest that this curative instruction is the
appropriate remedy:
On Monday and last Friday, you heard a discussion regarding whether Dr. Feamster was
provided or used the correct code when evaluating and testifying about how the “Yes”
and “No Thanks” buttons on the AutoHop user interface function and about whether
AutoHop is enabled by default or must be affirmatively enabled. Dr. Feamster and Mr.
Pankratz had differing views and expressed them to each other during Dr Feamster’s
testimony. They also disputed whether Dr. Feamster had used the proper source code or
whether DISH supplied the proper source code.
In discussions between the court and counsel after the jury was excused, the court has
determined that (a) DISH provided the proper source code to ClearPlay and (b) that Dr.
Feamster used code that DISH provided.
The parties still dispute, however, whether Dr. Feamster’s report and testimony used the
source code applicable to the consumer Hopper devices.
But there is no dispute between the parties as to how the Hopper AutoHop user interface
actually works. The parties agree that the following is a correct statement of the function
of the Hopper AutoHop interface:
If the user selects “Yes,” AutoHop skips commercials. If the user selects “No
Thanks,” AutoHop does not skip commercials. If the user does not select either
option, the system will time out after a few minutes, leave PrimeTime Anytime,
and return to live TV.
You should disregard any testimony to the contrary.
Objection to Curative Instruction: Any objection or recommended revision to the text
of the curative instruction must be submitted by 7:30 a.m. Wednesday March 8, 2023. No
argument on this issue will be heard. The curative instruction will be delivered verbally and in
writing when the jury enters the courtroom Wednesday March 8, 2023.
Limitation on Further Testimony. Because this case is mid-trial, DISH is still in a
position to present evidence to the jury to support its position that Dr. Feamster’s testimony
relied on the wrong source code. Also, DISH may present testimony about the proper source
code and its operation. ClearPlay may choose to present rebuttal testimony limited to whether
Dr. Feamster relied on the proper source code.

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How Dr. Feamster may have made his error or how he could have corrected it or issues of
discovery, disclosure, and objection are not central to the issues for the jury; will divert them
from their need to focus on the substantive issues; is likely to be based on imperfect knowledge
available at this time; is a waste of the jury’s time; and will be excluded under Fed. R. Evid. 403.

Signed March 8, 2023.
BY THE COURT
s/ David Nuffer
________________________________________
David Nuffer
United States District Judge

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