In this ongoing patent infringement battle between Samsung and Apple, both parties moves to strike the other's expert reports. Because of the time sensitive nature of the motions to strike the experts due to the proximity of trial, the court did not address the motions in detail but did make some notable comments regarding the Daubert process.
The court began its analysis of the various motions to strike the expert reports by noting that the parties had challenged reports from no less than nineteen experts whose testimony covers eleven different patents. The court also explained that patent cases follow a familiar sequence that should not be different than other cases, at least in theory: "Patent cases in this district and many others follow a familiar sequence of steps to get at the theories and evidence that experts will present to the jury at trial. Complaints identify the patents-on-suit and perhaps the products. Answers identify the accused infringer's general defenses. But only when the patent local rules requiring contentions kick in, or contention interrogatory responses are served, can parties begin to understand the particulars of their adversary's case. Specific patent claims and disputed claim terms are designated. Infringement and invalidity charts are shared and amended as investigations and discovery reveal new evidence. Ultimately, expert reports are tendered and depositions provided, with perhaps a round of Daubert motions to clear the field of any last remaining brush barred under Fed. R. Civ. P. 702. Perfectly conceived and executed, expert trial testimony in a patent case should be no difference than in other cases: the testimony is supported by a report which in turn reliably applies the theories disclosed in the contentions to evidence disclosed during facts discovery."
With theses introductory remarks, the court then concluded that the process is far from perfect and that the experts in this case offered different theories or relied on evidence that was never previously disclosed as required: "Unfortunately, in either its conception or execution or both, expert trial testimony in patent cases is often far from perfect. This case is no exception. Most importantly for this order, many of the expert reports offer theories or rely on evidence never previously disclosed as required. Even if disclosed somewhere, the parties have forced each other to comb through the extraordinarily voluminous record to find them, rather than simply amending their contentions or interrogatory responses as they should. This is unacceptable. Patent litigation is challenging and expensive enough without putting one party or the other to the task of sifting through mountains of data and transcripts to glean what is at issue. At the same time, the line between permissible application of a disclosed theory to disclosed evidence and impermissible reliance on either a new theory or new evidence can blur. Under these circumstances, when asked to strike some or all of an expert report, the court must revert to a simple question: will striking the report result in not just a trial, but an overall litigation, that is more fair, or less?"
With that framework and standards, the court proceeded to grant much of both parties' motions to strike on this basis stating that it the basis was listed in the parties' respective briefs.
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Although there is no detailed analysis of the court's reasoning in the order (as there was insufficient time before trial), the introductory comments to the rulings themselves provide some useful insight that should not be ignored. In particular, the court's caution about forcing the other side to comb through a voluminous record rather than amending contentions or interrogatory responses should be heeded.
Apple, Inc. v. Samsung Electronics Col, LTD., et al., Case No. 11-CV-01846-LHK (N.D. Cal. June 27, 2012)