In this patent infringement case, the district court received a number of motions to strike portions of expert reports and to exclude the testimony of certain experts. As stated by the district court, it received the following: “Defendants’ Motion to Strike Portions of the Expert Report and Exclude the Testimony of Richard Belgard Regarding Infringement by Systematically Reseeding Pseudorandom Number Generators” [#247 filed January 27, 2014]; plaintiffs “Motion to Exclude Testimony of Dell Expert Witness Dr. Markus Jakobsson” [#252 filed January 31, 2014]; the “Defendants’ Motion to Strike Portions of the Expert Report and Exclude the Testimony of Dr. Stephen Melvin Regarding Statistical Confidence Levels” [#254 filed February 3, 2014]; “Defendant Dell Inc.’ s Sealed Motion to Exclude the Proposed Expert Testimony of Robert Mills” [#258 filed February 5, 2014]; and plaintiffs “Sealed Motion to Exclude the Proposed Expert Testimony of Stephen Magee” [#266 filed February 13, 2014].
The motions, when counting the various responses, sur-responses and sur-sur responses, totaled nearly 500 pages, which the district court found to be an attempt to pre-try the case. “The approximate 500 pages of paper constituting these motions, responses, sur-responses, and sur-sur-responses is an indication that the parties wish to pre-try this case by lengthy and complicated motions, necessitating the reading of depositions by the judge not familiar with the factual allegations and issues to be determined at trial.”
The district court stated that it was not practical to determine the motions in this manner. “Unfortunately, this is not a docket where it is possible. In addition, it is improbable to accurately make admissibility determinations abstractly without the benefit of hearing the testimony in the trial.”
As a result, the district court imposed time limits for the trial and ruled that the hearings on the Daubert motions would count against those time limits, should a party wish to proceed with its motion and lose the motion. “Each side (yes, ‘side’) will receive eighteen (18) hours in which to present their cases to the jury beginning with opening statement and ending with the closing of the evidence. When the eighteenth hour has been completed, that side will not participate in trial until the evidence is completed or the opposing side runs out of time. Objections to expert witnesses, such as illustrated in these five motions, will be handled at trial. If a party wishes to make a Daubert objection, the Court will accommodate that party, listen to the testimony of the witness and the argument of counsel, and make a determination as to admissibility of the witness’s testimony, in whole or in part. If the objection is overruled, the time taken for that process outside the presence of the jury will be subtracted from the eighteen hours of time of the objector(s). If the objection is sustained, the time taken will be subtracted from the presenter of the witness’s eighteen hours of presentation. If the parties want to simply cross-examine expert witnesses for the consumption of their eighteen hours, that is their business.”
Quantum World Corporation v. Dell Inc., et al., Case No. A-11-CA-688-SS (W.D. Tex. March 2014)
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