Case 3:18-cv-02245-JD Document 270 Filed 02/24/23 Page 1 of 14
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`
`
`BITA RAHEBI (CA SBN 209351)
`brahebi@mofo.com
`ALEX S. YAP (CA SBN 241400)
`ayap@mofo.com
`NICHOLAS R. FUNG (CA SBN 312400)
`nfung@mofo.com
`MORRISON & FOERSTER LLP
`707 Wilshire Boulevard
`Los Angeles, California 90017-3543
`Telephone: (213) 892-5200
`Facsimile: (213) 892-5454
`
`RICHARD S.J. HUNG (CA SBN 197425)
`rhung@mofo.com
`SHAELYN K. DAWSON (CA SBN 288278)
`shaelyndawson@mofo.com
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, California 94105-2482
`Telephone: (415) 268-7000
`Facsimile: (415) 268-7522
`Attorneys for Defendant
`APPLE INC.
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`FIRSTFACE CO., LTD.,
`Plaintiff,
`
`v.
`APPLE INC.,
`
`Defendant.
`
`Case No. 3:18-cv-02245-JD
`DEFENDANT APPLE’S REPLY IN
`SUPPORT OF ITS DAUBERT
`MOTION TO EXCLUDE
`TESTIMONY OF NIGEL A. JONES
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`APPLE’S REPLY ISO ITS DAUBERT MOT. TO EXCLUDE TESTIMONY OF N. JONES
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`Case 3:18-cv-02245-JD Document 270 Filed 02/24/23 Page 2 of 14
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`
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`TABLE OF CONTENTS
`
`I. 
`II. 
`
`B. 
`
`Page
`INTRODUCTION ............................................................................................................... 1 
`THE FACTS NEEDED TO DECIDE THIS MOTION ARE UNCONTESTED ............... 2 
`Firstface Does Not Dispute That Mr. Jones Did Not Personally Review the iOS
`A. 
`Source Code For Versions 12 Through 15 ............................................................... 2 
`III.  MR JONES’S OPINIONS RELATING TO APPLE’S IOS SOURCE CODE SHOULD
`BE EXCLUDED .................................................................................................................. 2 
`A. 
`Mr. Jones’s Opinions Relating to iOS Versions 8 to 15 Should Be Excluded ........ 2 
`1. 
`Mr. Jones’s methodology is unreliable. ....................................................... 2 
`2. 
`Errors in Mr. Jones’s report highlight flaws in his methodology. ............... 4 
`3. 
`Mr. Jones’s unreliable methodology led him to ignore relevant files. ......... 5 
`Mr. Jones’s Opinions Relating to iOS Versions 12 to 15 Should Be Excluded for
`the Additional Reason That Mr. Jones Did Not Supervise Mr. Wilk Adequately
`and Check Mr. Wilk’s Conclusions ......................................................................... 6 
`Firstface did not identify Mr. Wilk’s involvement or contributions to Mr.
`1. 
`Jones’s report until Mr. Jones’s deposition. ................................................. 7 
`The late disclosure of Mr. Wilk deprived Apple of the opportunity to
`explore whether Mr. Jones adequately supervised Mr. Wilk’s work. ......... 9 
`Neither Mr. Jones’s discussions with Mr. Wilk nor Apple’s ability to cross-
`examine Mr. Jones at trial avoids preclusion. .............................................. 9 
`
`2. 
`
`3. 
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc.
`694 F.3d 1312 (Fed. Cir. 2012) ............................................................................................. 4, 5
`
`BladeRoom Grp. Ltd. v. Facebook, Inc.
`2018 WL 1611835 (N.D. Cal. Apr. 3, 2018) ............................................................................ 7
`
`Ciomber v. Coop. Plus, Inc.
`527 F.3d 635 (7th Cir. 2008) ..................................................................................................... 9
`
`Dura Auto. Sys. of Ind., Inc. v. CTS Corp.
`285 F.3d 609 (7th Cir. 2002) ..................................................................................................... 7
`
`Finesse Wireless, LLC v. AT&T Mobility, LLC
`2022 WL 17875791 (E.D. Tex. Dec. 21, 2022) ...................................................................... 10
`
`Icon-IP Pty Ltd. v. Specialized Bicycle Components, Inc.
`87 F. Supp. 3d 928 (N.D. Cal. 2015) .................................................................................. 3, 10
`
`IpLearn, LLC v. Blackboard Inc.
`2014 WL 4954462 (D. Del. Sep. 29, 2014) ............................................................................ 10
`
`Jordan v. Celebrity Cruises, Inc.
`2018 WL 3584702 (S.D. Fla. 2018) .......................................................................................... 3
`
`L & W, Inc. v. Shertech, Inc.
`471 F.3d 1311 (Fed. Cir. 2006) ................................................................................................. 6
`
`Maxell, Ltd. v. Apple Inc.
`2020 U.S. Dist. LEXIS 248960 (E.D. Tex. Dec. 17, 2020) ...................................................... 6
`
`Riverbed Tech., Inc. v. Silver Peak Sys.
`2014 WL 266303 (D. Del. Jan. 24, 2014) ................................................................................. 6
`
`TQ Delta, LLC v. 2Wire, Inc.
`373 F. Supp. 3d 509 (D. Del. 2019) ........................................................................................ 10
`
`Stilwell v. Smith & Nephew, Inc.
`482 F.3d 1187 (9th Cir. 2007) ................................................................................................... 4
`
`Other Authorities
`
`Fed. R. Civ. P. 26(a)(2)(B)(ii) ..................................................................................................... 8, 9
`
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`Case 3:18-cv-02245-JD Document 270 Filed 02/24/23 Page 4 of 14
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`I.
`
`INTRODUCTION
`Mr. Jones’s opinions on the accused Apple iOS source code (versions 8 to 15) should be
`excluded because he relied on a subjective and untestable methodology. Cognizant of his failure
`to articulate a clear standard for his “Differences” ranking, Firstface now argues that this
`“Differences” ranking is “not particularly relevant.” (D.I. 253 (“Opp.”) at 9.) But Mr. Jones’s
`flawed “Differences” ranking directly impacts the reliability of his opinions. He relied on this
`ranking to determine whether to review and analyze source code files. As Mr. Jones’s exemplary
`errors show, his flawed methodology led to him to miss substantial differences in later versions of
`the code. It also led him to miss errors that he should have caught, had he actually reviewed
`subsequent versions of the code files instead of relying on his “Differences” ranking.
`Mr. Jones’s opinions also should be excluded as unreliable because he does not explain
`the reasoning underlying his determinations that source code file differences were “Significant.”
`Firstface contends that Mr. Jones made this determination by analyzing whether source code
`changes “materially affect[] the operation of the device[’s] functionality” at issue, with “the basic
`yardstick [being] whether the code fundamentally operated differently.” (Opp. at 10.) But his
`explanation for what it means to “fundamentally operate[] differently” was both circular and
`subjective: “is it fundamentally different such that things operate in a fundamentally different
`way.” (D.I. 253-3, 102:1-4.) Mr. Jones’s characterization of a “significant” change as one that is
`“material” or “fundamentally different” underscores the absence of an objective standard.
`The Court also should exclude Mr. Jones’s opinions regarding iOS versions 12 to 15, as
`he neither personally reviewed those versions nor adequately supervised the work of his non-
`testifying assistant, Michael Wilk. Mr. Jones did not disclose Mr. Wilk in his report. Mr. Jones’s
`belated identification of Mr. Wilk as the person who actually reviewed the code during his
`deposition one day before the discovery deadline prejudiced Apple. Apple was unable to depose
`Mr. Wilk on what he had done and on his discussions with Mr. Jones. And because Mr. Jones
`never produced any of the raw outputs that form the basis of Mr. Jones’s opinions and Mr. Wilk’s
`analysis, Apple is unable to review or properly respond to Mr. Jones’s work.
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`II.
`
`THE FACTS NEEDED TO DECIDE THIS MOTION ARE UNCONTESTED
`A.
`Firstface Does Not Dispute That Mr. Jones Did Not Personally Review the
`iOS Source Code For Versions 12 Through 15
`
`Mr. Jones admits, and Firstface does not dispute, that he did not personally review the
`source code for iOS versions 12 through 15. (D.I. 217-3, 58:8-25 (“Q. [S]ticking with the
`AppleBiometricSensor code . . . , have you reviewed this code on the source code computer?
`A: . . . [S]o the stuff that was produced after 2019, I have not reviewed . . . .”).)
`III. MR JONES’S OPINIONS RELATING TO APPLE’S IOS SOURCE CODE
`SHOULD BE EXCLUDED
`A. Mr. Jones’s Opinions Relating to iOS Versions 8 to 15 Should Be Excluded
`1.
`Mr. Jones’s methodology is unreliable.
`
`Failure to identify tools or produce results. Firstface contends that Mr. Jones identified
`the two tools he used to compare code versions and that Apple should know about these tools
`because Apple provided them. (Opp. at 7-8.) This ignores that he never identified which of these
`tools (or what combination) he used to generate which results. Nor did Mr. Jones ever provide
`the raw output of his differencing analysis using these tools. (Opp. at 8.) His disclosure of the
`tools he used and a general description of their use is insufficient. (Id.) Mr. Jones’ failure to
`specify which tools were used to generate each of his results and provide the raw output of his
`analysis leaves Apple unable to test and confirm his results. (D.I. 217 (“Mot.”) at 5-6.) As
`Mr. Jones’s testimony confirms, he was unable to specify which tool he used for which
`comparison, underscoring the unreliability of his methodology:
`
`Q.
`[W]hat differencing tool or tools did you use to obtain the differences
`between the source code file? . . .
`
`A. Yeah, so obviously the stuff I’ve been referring to about the graphical
`interface is from Beyond Compare; and sometimes -- having done an
`assessment, sometimes the command line diff is more convenient to work
`with. Other times, the graphical interface is.
`
`(D.I. 253-3, 95:10-96:4.) Firstface should not be allowed to place the onus on Apple to guess
`which tool Mr. Jones used for his analysis. Apple cannot recreate or test his comparisons, when
`Mr. Jones himself does not know which tool he used. (Opp. at 8.)
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`Contrary to Firstface’s contention, Apple is entitled to review the raw outputs that form
`the basis of Mr. Jones’s opinions. The raw output is the only way to identify the portions of the
`code that Mr. Jones relied upon to “make an assessment” on “whether there are material changes
`to a function.” (D.I. 217-3, 91:5-22.) Firstface’s attempts to differentiate Apple’s proffered cases
`fail. As in those cases, Mr. Jones neither included “the facts or data considered” (i.e., the raw
`outputs) in forming his opinions nor explained how he made his assessment of “whether there are
`material changes to a function.” Icon-IP Pty Ltd. v. Specialized Bicycle Components, Inc., 87 F.
`Supp. 3d 928, 949 (N.D. Cal. 2015); Jordan v. Celebrity Cruises, Inc., 2018 WL 3584702, at *7
`(S.D. Fla. 2018) (excluding opinions not “tethered to any supporting materials”). (Opp. at 8.)
`Firstface’s after-the-fact excuses that “the protective order significantly restricted the
`number of pages [Mr. Jones] could print” and that “the differencing tool ‘generates a massive
`amount of [] output’” have no merit. (Opp. at 8.) First, it never raised the need to print the raw
`outputs, to print more source code, or to modify the negotiated Protective Order. (Fung Reply
`Decl., Ex. 1 (requesting printing limits increase for invalidity); Opp. at 2 n.2; D.I. 146 ¶ 22(a)
`(allowing parties to seek court to modify order).) Second, Firstface could have saved these raw
`outputs in the source code review computer, but it did not bother to do so.
`Fuzzy “Differences” analysis. Firstface does not address Apple’s arguments that
`Mr. Jones was unable to explain his scoring methodology for his “Differences” ranking with any
`specificity. (Opp. at 9; see Mot. at 7-8.) Instead, Firstface argues that “the [‘Differences’ ranking
`that] Mr. Jones assigned a source code file is not particularly relevant.” (Opp. at 9.) That is
`incorrect. The “Differences” ranking is “relevant” because Mr. Jones characterized those
`rankings as “Significant” (or not) to indicate “whether the[se] differences materially change[d]
`[his] description of the behavior of the code.” (D.I. 217-2 ¶ 145.)
`Firstface tries to save Mr. Jones’s methodology by arguing that he “explain[ed] the
`standard he used” for his “Differences” [ranking] during his deposition. (Opp. at 9 (citing D.I.
`253-3, 92:21-95:9).) But the cited portions of Mr. Jones’ testimony confirm that he could not
`quantify his “Differences” analysis when asked. (Mot. at 7.)
`Unexplained “Significant” conclusions. Firstface’s attempt to explain Mr. Jones’s
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`methodology for determining whether there were “significant” differences between source code
`versions reinforces the utter lack of rigor in Mr. Jones’s analysis.
`Firstface contends that Mr. Jones determined whether any differences are “Significant” by
`analyzing the changes to determine whether they “materially affect[] the operation of the device
`as it pertains to the functionality” at issue. Per Firstface, “the basic yardstick was whether the
`code fundamentally operated differently.” (Opp. at 10 (citing D.I. 253-3, 89:12-18, 101:12-13).)
`But Mr. Jones could not explain what “basic yardstick” he used to determine whether
`changes were “Significant” or not, other than that the code “operated fundamentally differently.”
`(Mot. at 9.) Firstface has no response, other than to repeat the same subjective, vague “yardstick”
`testimony. (Opp. at 10 (“And the basic yardstick was whether the code fundamentally operated
`differently.”).) Firstface also has no response to Apple’s argument that Mr. Jones could not
`explain how he determined that the code “operated fundamentally differently,” other than to
`provide a circular definition: whether the code “operate[d] in a fundamentally different way.”
`(Mot. at 9; D.I. 253-3, 102:1-4.)
`2.
`Errors in Mr. Jones’s report highlight flaws in his methodology.
`Firstface mischaracterizes Apple’s arguments as mere disagreements with Mr. Jones’s
`conclusions. (Opp. at 10-11; see also id. at 12.) But Apple does not merely disagree with his
`conclusions; it challenges the reliability of his methodology due to its errors. (Mot. at 10-11.)
`The exemplary errors that Apple identified in its motion are the direct consequence of his
`unreliable methodology, as explained above. Because Mr. Jones only reviewed and analyzed a
`small subset of the source code based on his flawed “Differences” ranking, he never reviewed the
`relevant code. (See Mot. 7-8, 10-11.) And as discussed below, these errors are even worse for
`iOS versions 12 to 15. For those versions, Mr. Jones relied on his “assistant,” Mr. Wilk—whom
`he did not adequately supervise and whose conclusions he did not verify. (See infra § III.B.)
`Firstface’s authority, Stilwell v. Smith & Nephew, Inc., actually supports exclusion here.
`In Stilwell, the Ninth Circuit explained that “[t]he test for reliability . . . is not the correctness of
`the expert’s conclusions but the soundness of his methodology.” 482 F.3d 1187, 1192 (9th Cir.
`2007) (internal citations omitted). Here, Mr. Jones’s methodology was unsound. ActiveVideo
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`Networks, Inc. v. Verizon Commc’ns, Inc. does not help Firstface for the same reason. (Opp. at
`10 (citing 694 F.3d 1312, 1333-34 (Fed. Cir. 2012) (party challenged expert’s conclusions rather
`than methodology).) Here, Apple is challenging Mr. Jones’s methodology, not his conclusions.
`Firstface’s explanation for why Mr. Jones failed to identify the iOS 13 to 15 source code
`files for Siri does not make sense. (Opp. at 11.) Mr. Jones’s position is that iOS 11 is allegedly
`representative of iOS 12 to 15. (D.I. 217-2 ¶¶ 287-291.) But Messrs. Jones and Wilk failed to
`identify the corresponding Siri source code in iOS 13 to 15. As discussed below, Mr. Jones relied
`on Mr. Wilk’s analysis of iOS 12 through 15 but did not adequately supervise him. (See infra
`§ III.B.) Indeed, Mr. Jones failed to identify Mr. Wilk’s mistaken analysis of the non-existent Siri
`code until Apple’s expert pointed it out. (D.I. 217-4 ¶¶ 273-275.) Firstface tries to deflect by
`stating that Mr. Jones was able to locate the “code that decides to activate Siri” when deposed.
`(Opp. at 11.) That untimely identification is not enough. (Opp. at 6, 11; Mot. at 10-11.)
`Firstface also tries to explain away Mr. Jones’s failure to analyze an entire section of
`relevant code relating to unlocking the accused products. Per Firstface, his statement that this
`code is “always skipped” was merely “slightly overbroad” and “not wrong,” as it sometimes
`occurs. (Opp. at 10-11 (conceding that the code is “indeed skipped when the unlock source is [a
`certain version]”).) But if something is “sometimes” skipped, a statement that it is “always”
`skipped necessarily is wrong. Mr. Jones might have caught this error, had he actually reviewed
`all of the source code instead of relying on his subjective “Differences” analysis. He did not.
`(Mot. at 10; D.I. 217-4 ¶¶ 260-268; see also D.I. 217-3, at 128:19-129:20.)
`3.
`Mr. Jones’s unreliable methodology led him to ignore relevant files.
`Firstface’s contention that Mr. Jones adequately explained his reliance on one or two
`representative versions of code for certain functions ignores that his methodology for relying on
`representative versions is itself flawed. (Opp. at 6.) As noted above, because Mr. Jones did not
`review the code for later versions of iOS, he failed to account for substantive changes in the code
`to activate Siri. (See supra § III.A.2.) Indeed, Mr. Jones failed to identify entire source code files
`that contained Apple’s new implementation of Siri. (Id.) As another example, Mr. Jones’ flawed
`methodology led him to erroneously assume that the low-level Home button signals “function
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`fundamentally the same” across different iOS versions. (D.I. 217-2 ¶¶ 101-107.) As
`Dr. Cockburn explains, the functions that Mr. Jones references in later versions of the iOS code
`are, in fact, absent in iOS 8 and iOS 9. (D.I. 217-4 ¶¶ 269-272.)
`Firstface’s cited cases are inapposite. In Maxell, Ltd. v. Apple Inc., the dispute concerned
`whether the expert could apply his detailed analysis of one source code version to “corresponding
`code from other versions [listed] in summary tables.” 2020 U.S. Dist. LEXIS 248960, at *86-87
`(E.D. Tex. Dec. 17, 2020). There was no dispute that he had reviewed all the versions of the
`code. See id. Here, by contrast, Mr. Jones concedes that he did not review all the source code.
`And because his methodology is unreliable (and untestable), he may not have reviewed relevant
`files that he should have, as shown in the two errors discussed above. (See supra § III.A.2.)
`Similarly in Riverbed Tech., Inc. v. Silver Peak Sys., the defendant’s expert had “reviewed
`subsequent versions of the code to confirm that the functionality had not changed . . . for those
`newer versions.” 2014 WL 266303, at *4 (D. Del. Jan. 24, 2014). Here, by contrast, Mr. Jones
`undisputedly did not review all of the relevant source code.
`Firstface’s attempt to avoid L&W, Inc. v. Shertech, Inc. 471 F.3d 1311, 1317-18 (Fed. Cir.
`2006), too, misses the mark. Per Firstface, “Mr. Jones [did] not assume[] that certain versions of
`iOS work the same as other versions.” (Opp. at 7.) But that is not the issue. Instead, it is that his
`unreliable methodology caused him to ignore relevant files. Having never reviewed all versions
`nor adequately supervised his delegate Mr. Wilk, Mr. Jones’s methodology was flawed.
`B. Mr. Jones’s Opinions Relating to iOS Versions 12 to 15 Should Be Excluded
`for the Additional Reason That Mr. Jones Did Not Supervise Mr. Wilk
`Adequately and Check Mr. Wilk’s Conclusions
`
`It is undisputed that Mr. Jones did not personally review the complete source code for iOS
`versions 12 to 15. He reviewed only a handful of printouts that were provided to him. Firstface
`suggests that Apple is to blame for his incomplete review, as Apple made its iOS source code
`“available for review in [California], thousands of miles from Mr. Jones’s home in Maryland.”
`(Opp. at 1.) But the fact that Apple made its code available for inspection at a secure location in
`its counsel’s offices (as is customary) did not prevent Mr. Jones from reviewing the source code.
`Mr. Jones’s multiple trips to California in 2018 to inspect earlier versions of iOS source code
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`confirms this. (Fung Reply Decl., Ex. 2 at 54:15-55:9.) Moreover, Firstface could have selected
`an expert based in or willing to travel to California, but chose Mr. Jones instead. Indeed, Apple’s
`expert Dr. Cockburn traveled from New Zealand to California to work on this matter, including
`reviewing Apple’s source code. (D.I. 253-5, 71:6-14.)
`Firstface also complains that Apple made over 120,000 files of source code for inspection,
`but this is a problem of Firstface’s own making. (Opp. at 2.) It certainly is not Apple’s fault that
`Firstface chose to accuse so many products of infringement to justify its ask for hundreds of
`millions of dollars in damages. (D.I. 214-4 ¶ 324; see supra § III.A.1 regarding protective order.)
`Firstface argues that, at its “core,” Apple argument is “that Mr. Jones improperly
`employed Mr. Wilk as an assistant.” (Opp. at 11.) That is wrong. Mr. Jones’s failures include:
`(1) his failure to identify Mr. Wilk as performing the assessment of iOS versions 12 through 15
`for him; (2) his failure to adequately supervise Mr. Wilk’s analysis; and (3) his failure to confirm
`that Mr. Wilk’s analysis was correct. (Mot. at 11-12.)
`Neither Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609 (7th Cir. 2002), nor
`BladeRoom Grp. Ltd. v. Facebook, Inc., 2018 WL 1611835 (N.D. Cal. Apr. 3, 2018), helps
`Firstface. (See Opp. at 11 (citing cases).) Although recognizing that experts may employ
`assistants if appropriate, the Seventh Circuit in Dura also warned that the “[a]nalysis becomes
`more complicated if the assistants aren’t merely gofers or data gatherers[,] but [individuals who]
`exercise professional judgment that is beyond the expert’s ken.” 285 F.3d at 613. And in
`BladeRoom, Judge Davila explained that “an expert cannot simply ‘perus[e] the work product’ of
`someone else and sign the bottom of the report because doing so creates ‘very little, if any,
`evidentiary value’ in the expert’s testimony.” 2018 WL 1611835, at *4 (citations omitted).
`Unlike in Dura and BladeRoom, Mr. Wilk’s role here went beyond just gathering data.
`He supplied technical analyses that Mr. Jones neither adequately supervised nor confirmed. That
`warrants the exclusion of Mr. Jones’ related opinions under Daubert.
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`1.
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`Firstface did not identify Mr. Wilk’s involvement or contributions to
`Mr. Jones’s report until Mr. Jones’s deposition.
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`Apple first learned of Mr. Wilk’s contributions and the extent of his involvement in the
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`middle of Mr. Jones’s deposition on November 29, 2022. That was just one day before expert
`discovery closed. This violated Rule 26(a)(2)(B)(ii), which requires that an expert report contain
`“the facts or data considered by the witness.”
`Firstface tries to justify its failure to identify Mr. Wilk in Mr. Jones’s report by arguing
`that Apple could have sought to depose Mr. Wilk earlier. (Opp. at 12.) Firstface omits one very
`salient fact: Mr. Jones’s report did not indicate that anyone assisted him with his report, much less
`Mr. Wilk. Nor did Mr. Jones’s report “set forth the exact procedure that he and Mr. Wilk used to
`compare source code versions” as Firstface suggests. (Id. at 12 (emphasis added).) Having
`lacked awareness that Mr. Jones would unexpectedly identify Mr. Wilk or of Mr. Jones’s reliance
`on Mr. Wilk’s code analysis, Apple had no reason to seek Mr. Wilk’s deposition earlier.
`Firstface also attempts to shift blame to Apple, suggesting it waited too long to request
`Mr. Jones’s deposition, which would have revealed Mr. Wilk’s involvement. (Id. at 12.)
`Firstface omits that it offered Mr. Jones for deposition only on the very eve of the expert
`discovery cutoff, despite Apple’s request in mid-October for dates. (Fung Reply Decl., Ex. 3
`(“We can also offer Mr. Jones for deposition on one of November 28, 29, or 30 via Zoom.”).)
`Firstface further implies that its identification of Mr. Wilk as a source code reviewer
`should have placed Apple on notice of his role and contributions. (Opp. at 12.) That, of course,
`is unreasonable. Apple was not obligated to speculate as to how a code reviewer like Mr. Wilk
`was involved (e.g., whether to assist Mr. Jones or Firstface’s counsel). Absent Firstface’s
`disclosure of and clarification as to his role, Apple might have had no reason to depose him.
`Firstface further defends Mr. Jones’s omission of Mr. Wilk by pointing to Dr. Cockburn’s
`use of Dr. Mayo. But the two situations are not analogous. Apple retained Andrew May to help
`its expert, Dr. Cockburn, identify and print source code. Unlike Mr. Jones’s wholesale reliance
`on Mr. Wilk for reviewing and analyzing entire versions of code, Dr. Mayo merely “directed
`[Dr. Cockburn’s] attention to some portions of the source code.” (D.I. 253-5, 71:21-72:1.)
`Dr. Cockburn, by contrast, formulated “[a]ll of [his] opinions” and conducted “all of [his]
`analysis” himself. (D.I. 253-5, 71:21-72:1.) Dr. Cockburn personally reviewed and analyzed all
`the relevant source code on which he opined. (Fung Reply Decl., Ex. 4 ¶ 7.) Dr. Cockburn
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`testified that, in addition to flying from New Zealand to Los Angeles to review the source code,
`he independently spent “more than” 60 hours or “several full days” reviewing remotely. (D.I.
`253-5, 72:2-9.) Mr. Jones, on the other hand, did nothing similar. (Mot. at 1-2, 10-13.)
`2.
`The late disclosure of Mr. Wilk deprived Apple of the opportunity to
`explore whether Mr. Jones adequately supervised Mr. Wilk’s work.
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`Firstface’s gamesmanship here—and the prejudice to Apple—are precisely why Rule
`26(a)(2)(B)(ii) requires that expert report contain “the facts or data considered by the witness in
`forming them.” Had Mr. Jones’s report referred to Mr. Wilk’s substantive involvement, Apple
`would not have to await Mr. Jones’s deposition to find out.
`Apple was plainly harmed by Mr. Jones’s failure to identify Mr. Wilk in his report. Apple
`was forced to depose Mr. Jones with no understanding as to what he would say about his work
`with Mr. Wilk. See Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008) (“Because of
`the report’s deficiencies, Cooperative Plus was forced to depose [the expert] with little or no
`understanding as to what he would testify.”). For example, Apple was not prepared to probe the
`extent to which Mr. Jones relied on Mr. Wilk’s review. Apple learned of critical facts (e.g., Mr.
`Jones’s complete reliance on Mr. Wilk for his opinions as to iOS versions 12 to 15) mid-
`deposition. (Mot. at 11.) Firstface’s late disclosure just one day before the expert discovery close
`also rendered it infeasible to depose Mr. Wilk. (Id. at 13.)
`3.
`Neither Mr. Jones’s discussions with Mr. Wilk nor Apple’s ability to
`cross-examine Mr. Jones at trial avoids preclusion.
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`Firstface concedes that Mr. Jones did not review the source code for iOS versions 12 to
`15. (Opp. at 13.) It also concedes that he provided no written instructions to Mr. Wilk. (Id.)
`To avoid preclusion, however, Firstface argues that Mr. Wilk “had the benefit of Mr. Jones’s
`work and conclusions to use as a guide,” as they discussed the code when Mr. Wilk was doing his
`review. (Id. at 13.) That is insufficient. As explained above, Mr. Jones’s qualitative
`“Differences” rubric and “Significant” differences analyses were unreliable. Mr. Wilk’s
`application of that same methodology with even more poorly defined benchmarks therefore is
`equally unreliable, if not more so. (Mot. at 12.)
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`And even assuming that those “detailed discussions” occurred, Apple was unable to fully
`explore those conversations during Mr. Jones’s deposition or with Mr. Wilk at all. In view of the
`late timing of Mr. Jones’s deposition and his late disclosure of Mr. Wilk, Apple could not verify,
`e.g.: what oral instructions Mr. Jones allegedly provided; whether those instructions were correct;
`and whether Mr. Wilk followed them. Apple should not need to rely on Firstface and Mr. Jones’s
`assurances. As Firstface concedes, in circumstances such as this, a court may “exclude[] an
`expert’s reliance on phone conversations that were not disclosed.” (Opp. at 8 (citing Icon-IP).)
`Firstface’s citations do not excuse its concealment. In Finesse Wireless, LLC v. AT&T
`Mobility, LLC, the “[assistant’s] role [] was limited to helping [the expert] identify relevant
`source code, understand the source code, and assist drafting portions of [the] report regarding the
`code.” 2022 WL 17875791, at *13 (E.D. Tex. Dec. 21, 2022). This is similar to how
`Dr. Cockburn used Dr. Mayo, but not how Mr. Jones used Mr. Wilk. Similarly, in TQ Delta, LLC
`v. 2Wire, Inc., the expert there only used his assistant to identify source code for his review. 373
`F. Supp. 3d 509, 525-26 (D.