Case 1:15-cv-00542-JFB-SRF Document 427 Filed 09/06/18 Page 1 of 10 PageID #: 26902
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF DELAWARE
`
`
`
`EVOLVED WIRELESS, LLC,
`
`
`
`
`
`APPLE INC.,
`
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`C.A. No. 15–cv–542–JFB-SRF
`
`JURY TRIAL DEMANDED
`
`FILED UNDER SEAL
`
`PLAINTIFF EVOLVED WIRELESS, LLC’S OPENING BRIEF IN SUPPORT OF
`MOTION IN LIMINE RELATED TO DEFENDANT APPLE
`
`
`
`Dated: August 30, 2018
`
`Brian E. Farnan (Bar No. 4089)
`Michael J. Farnan (Bar No. 5165)
`919 N. Market Street, 12th Floor
`Wilmington, Delaware 19801
`(302) 777–0300
`(302) 777–0301
`bfarnan@farnanlaw.com
`mfarnan@farnanlaw.com
`
`Christopher K. Larus (admitted pro hac vice)
`Marla R. Butler (admitted pro hac vice)
`Ryan M. Schultz (admitted pro hac vice)
`John K. Harting (admitted pro hac vice)
`Benjamen C. Linden (admitted pro hac vice)
`Anthony F. Schlehuber (admitted pro hac vice)
`Rajin S. Olson (admitted pro hac vice)
`ROBINS KAPLAN LLP
`800 LaSalle Avenue, Suite 2800
`Minneapolis, Minnesota 55402
`Telephone: (612) 349–8500
`Facsimile: (612) 339–4181
`clarus@robinskaplan.com
`mbutler@robinskaplan.com
`rschultz@robinskaplan.com
`jharting@robinskaplan.com
`blinden@robinskaplan.com
`
`
`
`
`

`

`Case 1:15-cv-00542-JFB-SRF Document 427 Filed 09/06/18 Page 2 of 10 PageID #: 26903
`
`aschlehuber@robinskaplan.com
`rolson@robinskaplan.com
`
`Annie Huang (admitted pro hac vice)
`ROBINS KAPLAN LLP
`399 Park Avenue, Suite 3600
`New York, NY 10022
`Telephone: (212) 980–7400
`Facsimile: (212) 980–7499
`ahuang@robinskaplan.com
`
`Counsel For Plaintiff Evolved Wireless, LLC
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:15-cv-00542-JFB-SRF Document 427 Filed 09/06/18 Page 3 of 10 PageID #: 26904
`
`
`
`TABLE OF CONTENTS
`
`TABLE OF CONTENTS ....................................................................................................... i 
`
`TABLE OF AUTHORITIES ................................................................................................ ii 
`
`1. 
`
`2. 
`
`Factual Background ...................................................................................... 1 
`
`Undisclosed Testimony from Ms. Mewes Regarding Apple’s Alleged
`
`Damages Should Be Excluded Because It Is Irrelevant, Untimely, and Unfairly
`
`Prejudicial Under Federal Rules of Evidence 402 and 403. ..................................... 2 
`
`3. 
`
`The Untimely-Disclosed Invoices Should Be Excluded Because They Are
`
`Irrelevant, Untimely, and Unfairly Prejudicial Under Federal Rules of Evidence
`
`402 and 403. .............................................................................................................. 3 
`
`4. 
`
`Undisclosed Documents Regarding Apple’s Alleged Damages Should Be
`
`Excluded Because They Are Untimely and Unfairly Prejudicial Under Federal
`
`Rules of Evidence 402 and 403. ............................................................................... 4 
`
`
`
`
`
`
`
`
`
`
`
`i
`
`
`
`

`

`Case 1:15-cv-00542-JFB-SRF Document 427 Filed 09/06/18 Page 4 of 10 PageID #: 26905
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Microsoft Corp. v. Motorola, Inc.,
`795 F.3d 1024 (9th Cir. 2015) ........................................................................................ 3
`
`Rules
`
`Federal Rule of Civil Procedure 26(a)(1)(A)(iii) .............................................................. 2, 4
`
`Federal Rule of Evidence 402 ............................................................................................... 1
`
`Federal Rule of Evidence 403 ............................................................................................... 1
`
`ii
`
`
`
`

`

`Case 1:15-cv-00542-JFB-SRF Document 427 Filed 09/06/18 Page 5 of 10 PageID #: 26906
`
`Evolved Wireless, LLC (“Evolved Wireless”) respectfully moves to exclude evidence
`
`and argument related to damages Apple, Inc. (“Apple”) allegedly suffered as a result of Evolved
`
`Wireless’s alleged breach of “FRAND” obligations.1 The only purported evidence Apple has
`
`produced to date to support such damages are two invoices attached to Apple’s opposition to
`
`Evolved Wireless’s summary judgment motion—which Apple filed seven months after the close
`
`of fact discovery. See D.I. 243, Ex. O, P; D.I. 144. These invoices relate to expert costs incurred
`
`in this litigation. Apple’s opposition brief also indicated, for the first time, that Apple intends for
`
`its corporate witness, Heather Mewes, to provide further evidence of damages via testimony at
`
`trial. D.I. 242 at 10. In addition to being untimely, these invoices and any testimony by Ms.
`
`Mewes, which presumably will only relate to costs Apple has incurred in this lawsuit, are legally
`
`irrelevant. As such, the invoices and testimony should be excluded under Federal Rules of
`
`Evidence 402. Further, the invoices and testimony, as well as any other previously undisclosed
`
`evidence regarding Apple’s alleged damages, should be excluded as untimely and unfairly
`
`prejudicial under Federal Rule of Evidence 403.
`
`1.
`
`Factual Background
`
`Apple pled a Breach of Contract counterclaim, alleging that Evolved Wireless breached
`
`FRAND obligations and that Apple had been harmed by being forced to defend Evolved
`
`Wireless’s claims of infringement and to incur “substantial expense” in doing so. D.I. 9 ¶¶ 61-
`
`
`1 As of the date of filing, Evolved Wireless has not yet received Apple’s exhibit list, deposition
`designations, or proposed statements of disputed issues of fact or law. See D.I. 399. Accordingly,
`Evolved Wireless reserves the right to seek leave of the Court to file additional motions in limine
`should Apple’s pre-trial materials generate unforeseen evidentiary issues, or to object as
`necessary at trial to issues raised therein.
`
`1
`
`
`
`

`

`Case 1:15-cv-00542-JFB-SRF Document 427 Filed 09/06/18 Page 6 of 10 PageID #: 26907
`
`66.2 Throughout the discovery period in this case, Apple failed to disclose any witness with
`
`knowledge regarding its alleged damages for breach of FRAND in its Rule 26 disclosures. See
`
`D.I. 269, Ex. 1. Further, Apple produced no documents during fact discovery regarding or
`
`supporting its alleged damages for breach of contract.
`
`Given Apple’s failure to disclose any evidence allegedly supporting this claim, Evolved
`
`Wireless moved for summary judgment on Apple’s breach of contract counterclaim. See
`
`D.I. 221. In its opposition, Apple disclosed—for the first time—three sources of evidence it
`
`would rely on at trial to support its counterclaim: (1) an invoice from Apple’s proffered French
`
`law expert, (2) an invoice from Apple’s proffered ETSI expert, and (3) testimony from an Apple
`
`fact witness, Heather Mewes, to be disclosed at trial. See D.I. 242 at 10.
`
`2.
`
`Undisclosed Testimony from Ms. Mewes Regarding Apple’s Alleged
`Damages Should Be Excluded Because It Is Irrelevant, Untimely, and
`Unfairly Prejudicial Under Federal Rules of Evidence 402 and 403.
`
`Apple alleged in its opposition to Evolved Wireless’s summary judgment brief that Ms.
`
`Mewes, “can testify at trial that Apple has incurred as a result of Evolved’s breach. [sic]” D.I.
`
`242 at 10. However, Apple did not (and still has not) disclosed what damages Ms. Mewes will
`
`testify Apple has incurred, despite Apple’s obligation to do so pursuant to Federal Rule of Civil
`
`Procedure 26(a)(1)(A)(iii). Indeed, Apple’s Initial Disclosures only identified Ms. Mewes as
`
`having “knowledge related to Evolved’s failure to offer a license to the Patents-in-Suit on Fair,
`
`Reasonable and Non-Discriminatory terms.” D.I. 269, Ex. 1 (Apple’s Initial Disclosures) at 3.
`
`Apple’s Initial Disclosures did not identify Ms. Mewes as having knowledge related to any
`
`purported damages flowing from Apple’s FRAND counterclaim. Id.
`
`
`2 Evolved Wireless subsequently moved for judgment on the pleadings on Apple’s claim. D.I.
`30. Evolved Wireless’s motion is still pending.
`
`2
`
`
`
`

`

`Case 1:15-cv-00542-JFB-SRF Document 427 Filed 09/06/18 Page 7 of 10 PageID #: 26908
`
`Further, Evolved Wireless served a request for production asking Apple to disclose all
`
`documents it would rely on at trial. See D.I. 269, Ex. 2 (Requests for Production) at 14. Even
`
`though any damages incurred in defending this lawsuit would certainly be documented, Apple
`
`produced no such documents during fact discovery. As such, whatever Ms. Mewes will testify
`
`about, Evolved Wireless has not had the opportunity to evaluate such information or ask about it
`
`during depositions. Thus, allowing Ms. Mewes, or any Apple witness, to testify as to damages at
`
`trial would be unfairly prejudicial to Evolved Wireless.
`
`Moreover, same-suit attorneys’ fees are legally improper as damages in a contract claim
`
`See D.I. 268 at 1-6 (citing Microsoft Corp. v. Motorola, Inc., 795 F.3d 1024, 1049 (9th Cir.
`
`2015). To the extent Ms. Mewes’s undisclosed testimony relates to such costs, it is thus
`
`irrelevant anyway.
`
`Accordingly, any testimony from Ms. Mewes regarding damages purportedly incurred as
`
`a result of an alleged breach of contract should be excluded as irrelevant, untimely, and unfairly
`
`prejudicial under Federal Rules of Evidence 402 and 403.
`
`3.
`
`The Untimely-Disclosed Invoices Should Be Excluded Because They Are
`Irrelevant, Untimely, and Unfairly Prejudicial Under Federal Rules of
`Evidence 402 and 403.
`
`The two invoices Apple now relies on were not produced until seven months after the
`
`close of fact discovery, and only in opposition to Evolved Wireless’s summary judgment motion.
`
`D.I. 243, Ex. O and P. As noted in Evolved Wireless’s reply brief, Apple incurred these expenses
`
`asserting its affirmative claim for breach of contract, and not in defending any suit, wrongful or
`
`otherwise. See D.I. 268 at 7 n.3. Similarly, the invoices relate to same-suit attorneys’ fees, which
`
`are legally improper as damages in a contract claim. See D.I. 268 at 1-6. For both reasons, the
`
`invoices are irrelevant. See id.
`
`3
`
`
`
`

`

`Case 1:15-cv-00542-JFB-SRF Document 427 Filed 09/06/18 Page 8 of 10 PageID #: 26909
`
`Although Evolved Wireless requested that Apple produce all documents it plans to rely
`
`upon at trial, and despite the obligations of Federal Rule of Civil Procedure 26(a)(1)(A)(iii),
`
`Apple did not disclose its two experts’ invoices until after all depositions had taken place and all
`
`fact and expert discovery had closed. See D.I. 269, Ex. 2 (Requests for Production) at 14, Req.
`
`No. 26; Ex. 1 (Initial Disclosures) at 11. Evolved Wireless has not had the opportunity to
`
`question any Apple witnesses, including the experts themselves, regarding these untimely
`
`invoices.
`
`The invoices should therefore be excluded as irrelevant, untimely, and unfairly
`
`prejudicial under Federal Rules of Evidence 402 and 403.
`
`4.
`
`Undisclosed Documents Regarding Apple’s Alleged Damages Should Be
`Excluded Because They Are Untimely and Unfairly Prejudicial Under
`Federal Rules of Evidence 402 and 403.
`
`As noted above, Evolved Wireless requested that Apple produce all documents it plans to
`
`rely upon at trial, and Federal Rule of Civil Procedure 26(a)(1)(A)(iii) obligated Apple to
`
`disclose a computation of its damages. See D.I. 269, Ex. 2 (Requests for Production) at 14, Req.
`
`No. 26; Ex. 1 (Initial Disclosures) at 11. Yet Apple did not disclose any documents aside from its
`
`two experts’ invoices. Evolved Wireless has not had the opportunity to examine any such
`
`unproduced documents or question any Apple witnesses regarding them. Apple should not be
`
`permitted to withhold nearly all purported evidence of its alleged damages until the eve of trial—
`
`or worse, until trial itself.3 Such undisclosed evidence is untimely and is unfairly prejudicial to
`
`Evolved Wireless, and thus should be excluded under Federal Rules of Evidence 402 and 403.
`
`
`3 Apple may argue its damages continue to accrue as the case progresses, and that it cannot
`produce evidence that does not yet exist. This case has been pending since 2015. See D.I. 1. Any
`such argument does not address Apple’s failure to produce any evidence whatsoever beyond its
`two experts’ invoices.
`
`4
`
`
`
`

`

`Case 1:15-cv-00542-JFB-SRF Document 427 Filed 09/06/18 Page 9 of 10 PageID #: 26910
`
`For the aforementioned reasons, Evolved Wireless respectfully requests the Court to
`
`exclude evidence and argument related to damages Apple allegedly suffered as a result of
`
`Evolved Wireless’s alleged breach of “FRAND” obligations.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`5
`
`
`
`

`

`Case 1:15-cv-00542-JFB-SRF Document 427 Filed 09/06/18 Page 10 of 10 PageID #: 26911
`
`Dated: August 30, 2018
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`FARNAN LLP
`
`
`
`/s/ Brian E. Farnan
`Brian E. Farnan (Bar No. 4089)
`Michael J. Farnan (Bar No. 5165)
`919 N. Market Street, 12th Floor
`Wilmington, Delaware 19801
`(302) 777–0300
`(302) 777–0301
`bfarnan@farnanlaw.com
`mfarnan@farnanlaw.com
`
`Christopher K. Larus (admitted pro hac vice)
`Marla R. Butler (admitted pro hac vice)
`Ryan M. Schultz (admitted pro hac vice)
`John K. Harting (admitted pro hac vice)
`Benjamen C. Linden (admitted pro hac vice)
`Anthony F. Schlehuber (admitted pro hac vice)
`Rajin S. Olson (admitted pro hac vice)
`ROBINS KAPLAN LLP
`800 LaSalle Avenue, Suite 2800
`Minneapolis, Minnesota 55402
`Telephone: (612) 349–8500
`Facsimile: (612) 339–4181
`clarus@robinskaplan.com
`mbutler@robinskaplan.com
`rschultz@robinskaplan.com
`jharting@robinskaplan.com
`blinden@robinskaplan.com
`aschlehuber@robinskaplan.com
`rolson@robinskaplan.com
`
`Annie Huang (admitted pro hac vice)
`ROBINS KAPLAN LLP
`399 Park Avenue, Suite 3600
`New York, NY 10022
`Telephone: (212) 980–7400
`Facsimile: (212) 980–7499
`ahuang@robinskaplan.com
`
`Counsel For Plaintiff Evolved Wireless, LLC
`
`
`
`