Brand New Expert on Reply Precluded as Litigation Maneuver as Google's Motion to Strike Oracle's Expert Is Granted

November 28, 2011

Oracle served an opening damages expert report in May 2011 and it did not serve any other opening damages expert reports. Google challenged the expert report with a Daubert motion, which the district court granted in July 2011.

In the order granting the Daubert motion, the district court allowed Oracle an opportunity to cure the defects in the expert report. During a case management conference a month later, Oracle stated that it might present a second, additional damages expert. Oracle served a revised opening damages expert report in September 2011 from the same expert that it had used to prepare the May 2011 report. It did not submit an additional expert report on damages at that time.

In October 2011, Google served two opposing expert reports on damages by two different experts. One report addressed the damages from copyright infringement and the other addressed the damages from patent infringement. A few days later, Oracle served a list of trial witnesses, which included a rebuttal witness regarding damages, who was a different witness that the expert who prepared Oracle's opening report on damages. Three days later, Oracle served four additional reports on damages, two from the original expert who had prepared the May 2011 report and two from a new rebuttal expert who had not provided any expert reports previously.

Google moved to strike the new expert reports as improper. The district court framed the issue as: "whether a new expert who did not serve any opening report may nonetheless make a reply submission attacking the opposition reports served b the other side." The district court answered this question by first referring to the scheduling order which emphasized the limited nature of reply expert reports, nothing that "reply reports should be very brief and must be limited to true rebuttal." The district court noted that the purpose of exchanging expert reports "was designed to forestall 'sandbagging' by a party with the burden of proof who wishes to save its best points for reply, when it will have the last word, a common litigation tactic."

The district court further found that this type of litigation tactic would be unfair and that the purpose of a brief reply could not encompass a new expert that would comply with the full disclosure requirements of Fed.R.Civ.P. 26(a). "A party with the burden of proof on an issue should not be allowed to secretly prepare an army of 'rebuttal' experts to attack the opposition reports like Odysseus and the Greeks springing forth from their wooden hideout in Troy. If they were allowed to do so, their work would not be subject to a direct response from any opposing expert. This immunity, combined with the element of surprise, would be unfair. Moreover, the late addition of new experts would frustrate case-management objectives by complicating the task of planning and preparing the case for trial."

Accordingly, the district court granted Google's motion to strike Oracle's new expert who submitted an expert report for the first time on reply.

Oracle America, Inc. v. Google Inc., Case No. C 10-03561 WHA (N.D. Cal. Nov. 15, 2011)