Case 1:15-cv-00542-JFB-SRF Document 453 Filed 02/14/19 Page 1 of 4 PageID #: 28415
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`EVOLVED WIRELESS, LLC,
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`Plaintiff,
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`APPLE INC.,
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`Defendant.
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`EVOLVED WIRELESS, LLC,
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`Plaintiff,
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`HTC CORPORATION and
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`HTC AMERJCA, INC.,
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`Defendants.
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`EVOLVED WIRELESS, LLC,
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`Plaintiff,
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`LENOVO GROUP LTD., LENOVO
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`(UNITED STATES) INC., and
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`MOTOROLA MOBILITY,
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`Defendants.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`EVOLVED WIRELESS, LLC,
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`Plaintiff,
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`APPLE INC.,
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`Defendant.
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`EVOLVED WIRELESS, LLC,
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`Plaintiff,
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`HTC CORPORATION and
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`HTC AMERJCA, INC.,
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`Defendants.
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`EVOLVED WIRELESS, LLC,
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`Plaintiff,
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`LENOVO GROUP LTD., LENOVO
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`(UNITED STATES) INC., and
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`Case 1:15-cv-00542-JFB-SRF Document 453 Filed 02/14/19 Page 2 of 4 PageID #: 28416
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`EVOLVED WIRELESS, LLC,
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`SAMSUNG ELECTRONICS CO., LTD.
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`and SAMSUNG ELECTRONICS
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`AMERICA, INC.
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`Defendants.
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`_____________________________________ )
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`EVOLVED WIRELESS, LLC,
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`Plaintiff,
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`ZTE (USA) INC.,
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`Defendant.
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`EVOLVED WIRELESS, LLC,
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`Plaintiff,
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`MICROSOFT CORPORATION,
`MICROSOFT MOBILE OY and
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`NOKIA INC.,
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`Defendants.
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`This matter is before the Court on Apple’s motion to strike the supplemental
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`MEMORANDUM AND ORDER
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`expert report of Jonathan D. Putnam (D.I. 396).1
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`1All docket items (“D.I.”) refer to Civil Action No. 15-542-JFB-SRF unless otherwise stated.
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`2
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`Case 1:15-cv-00542-JFB-SRF Document 453 Filed 02/14/19 Page 3 of 4 PageID #: 28417
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`Dr. Putnam is plaintiff Evolved Wireless Inc.’s (“Evolved”) damages expert.
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`Apple contends the supplemental report is untimely and asserts that Evolved lacks any
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`legitimate justification for the delay. Apple argues Dr. Putnam’s new report offers a
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`reformulation of his “citation analysis” methodology, which forms the entire basis of his
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`damages’ calculation. It contends that responding to this new analysis would require
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`the defendants and their experts to expend substantial resources which would be
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`extremely prejudicial at this stage of the case.
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`In opposition, Evolved states that a third-party commercial database provider
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`updated and revised the database of LTE patent data and Dr. Putnam supplemented
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`his report accordingly. Evolved states that the supplemental report is not “an entirely
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`new analysis” or a “do-over” report as the defendants contend but applies the same
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`methodology as Dr. Putnam’s earlier report. Evolved has shown that it offered on July
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`2, 2018 to make Dr. Putnam available for a deposition regarding his Supplemental
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`Report. Also, on September 25, 2018, Evolved filed a notice of new facts stating that
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`the rescheduling of the trials against Apple and the other defendants provided an
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`additional opportunity to cure any alleged prejudice.
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`In the Third Circuit, courts weigh the “Pennypack factors” to assess whether any
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`untimely evidence should be stricken. Konstantopoulas v. Westvaco Corp., 112 F.3d
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`710, 719 (3d Cir. 1997) (citing Meyers v. Pennypack Woods Home Ownership Ass’n,
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`559 F.2d 894, 904–05 (3d Cir. 1977) overruled on other grounds, Goodman v. Lukens
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`Steel Co., 777 F.2d 113 (3d Cir. 1985)). Those factors include: (1) the prejudice or
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`surprise to the moving party; (2) the possibility of curing the prejudice; (3) the potential
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`disruption of an orderly and efficient trial; (4) the presence of bad faith or willfulness in
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`3
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`Case 1:15-cv-00542-JFB-SRF Document 453 Filed 02/14/19 Page 4 of 4 PageID #: 28418
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`failing to disclose the evidence; and (5) the importance of the testimony sought to be
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`excluded. Id. “[T]he exclusion of critical evidence is an ‘extreme’ sanction, not normally
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`to be imposed absent a showing of willful deception or ‘flagrant disregard’ of a court
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`order by the proponent of the evidence.” Id. The determination of whether to exclude
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`evidence is within the discretion of the district court. Id. Generally, an additional
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`deposition of the expert can cure alleged prejudice from the service of a supplemental
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`report. Novartis Pharm. Corp. v. Actavis, Inc., No. CV 12-366-RGA-CJB, 2013 WL
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`7045056, at *10 (D. Del. Dec. 23, 2013).
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`The Court has reviewed the parties’ submissions and finds the motion should be
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`denied. Evolved has shown that its declaration is not untimely and, if it were, Apple
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`could have cured any alleged prejudice by again deposing the expert. Any prejudice to
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`Apple is a problem of its own making. The defendants have known of Dr. Putnam’s
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`methodology for calculating a FRAND royalty for the patents-in-suit since the disclosure
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`of his opening report and updated data would have been foreseeable. Accordingly, the
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`Court finds the motion should be denied.
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`IT IS ORDERED that Defendant Apple’s motion to strike the supplemental expert
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`report of Jonathan D. Putnam (D.I. 396) is denied.
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`DATED this 14th day of January, 2019.
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`BY THE COURT:
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`s/ Joseph F. Bataillon
`Senior United States District Judge
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`4
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