Case 1:19-cv-01410-MN Document 270 Filed 10/31/23 Page 1 of 11 PageID #: 10809
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`VB ASSETS, LLC,
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`
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`Plaintiff,
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`v.
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`AMAZON.COM SERVICES LLC,
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`C.A. No. 1:19-cv-01410-MN
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`Defendant.
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`REDACTED
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`DEFENDANTS’ OPPOSITION TO VB ASSETS’ MOTION TO AMEND
`TRIAL EXHIBIT LIST TO ADD DOCUMENTS DESCRIBING NEW, UNRELEASED
`FEATURES AND TECHNOLOGY ON THE EVE OF TRIAL
`
`ASHBY & GEDDES
`Steven J. Balick (#2114)
`Andrew C. Mayo (#5207)
`500 Delaware Avenue, 8th Floor
`P.O. Box 1150
`Wilmington, DE 19899
`(302) 654-1888
`sbalick@ashbygeddes.com
`amayo@ashbygeddes.com
`
`Attorneys for Defendants
`
`Of Counsel:
`
`J. David Hadden, CSB No. 176148
`Email: dhadden@fenwick.com
`Saina S. Shamilov, CSB No. 215636
`Email: sshamilov@fenwick.com
`Ravi R. Ranganath, CSB No. 272981
`rranganath@fenwick.com
`Vigen Salmastlian, CSB No. 276846
`Email: vsalmastlian@fenwick.com
`FENWICK & WEST LLP
`Silicon Valley Center
`801 California Street
`Mountain View, CA 94041
`Telephone: 650.988.8500
`Facsimile: 650.938.520
`
`Dated: October 29, 2023
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`

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`Case 1:19-cv-01410-MN Document 270 Filed 10/31/23 Page 2 of 11 PageID #: 10810
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`Fact discovery closed sixteen months ago. Now, less than a week before trial, VB Assets
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`seeks to “amend” its trial exhibit list so that it can discuss in front of the jury new technology that
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`Amazon just announced,
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`, and
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`—specifically, new
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` Alexa features that will use a “large language model” or LLM. VB Assets did not
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`accuse the LLM system in the case and the parties did not address it in fact or expert discovery for
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`the simple reason that it did not exist. But VB Assets nevertheless plans to have its technical
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`expert Dr. Polish offer new opinions about this planned technology—using two articles and a video
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`that he neither reviewed nor considered for his report—to construct a new infringement theory on
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`the fly at trial. To justify its belated request to offer new expert opinions at trial, VB Assets falsely
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`suggests that the documents describing the new non-accused LLM system somehow “reinforce”
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`its experts’ opinions about the Natural Language Understanding (NLU) system actually accused
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`in this case.
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` And use of these exhibits at trial will be highly
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`prejudicial to Amazon as VB Assets will attempt to shift the focus of this case from the technology
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`that was actually accused to the new
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` technology—all without providing Amazon with
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`any prior notice of its new theories. This is impermissible under the Third Circuit’s Pennypack
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`test. The Court should deny the motion.
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`I.
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`AMAZON RECENTLY ANNOUNCED PLANS FOR LIMITED-USE ALEXA
`FEATURES THAT WILL USE A NEW “LARGE LANGUAGE MODEL”
`SYSTEM INSTEAD OF THE NATURAL LANGUAGE UNDERSTANDING
`SYSTEM ACCUSED IN THIS CASE
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`VB Assets seeks to add three exhibits to its trial exhibit list: two articles and a video, each
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`published on September 20, 2023. (See Mot., Exs. A-C.) The exhibits describe “the future of
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`Alexa”—not its past or present—and “preview” certain features currently in development that rely
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`1
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`Case 1:19-cv-01410-MN Document 270 Filed 10/31/23 Page 3 of 11 PageID #: 10811
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`on a new large language model, or “LLM.” (See, e.g., id., Ex. B at 1-2 (titled “Previewing the
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`future of Alexa” and noting that Amazon was “previewing a new large language model”); Ex. A
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`at 1 (“Today, we previewed the future of Alexa, one that’s powered by a large language model
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`(LLM) specifically optimized for voice interactions.”) (emphases added).)
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`Melanie Gens, a Principal Software Engineer who works on the team responsible for the
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`new LLM system offers sworn testimony that
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`exhibits reflect only “features [that will be] launching soon.” (Mot. at 1 (emphasis added).) As
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` VB Assets acknowledges this, noting that the
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`Ms. Gens explains,
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`II.
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`THE COURT SHOULD NOT PERMIT VB ASSETS TO ADD EXHIBITS ON
`THE NON-ACCUSED AND
` TO THIS CASE AND
`PRESENT UNDISCLOSED EXPERT TESTIMONY BASED ON THE EXHIBITS
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`VB Assets seeks leave to amend its trial exhibit list because it desires its expert to offer
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`new and undisclosed expert opinions based on the new exhibits. (Mot. at 1 (“Good cause exists to
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`add [the exhibits] to the trial exhibit list and to permit their use to further elucidate the expert
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`opinions in this case”), 6 (“It is essential . . . that VB Assets’s experts be able to point to these
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`statements as further evidence of their opinions”) (emphases added)); see, e.g., Inline Connection
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`Corp. v. AOL Time Warner Inc., 472 F. Supp. 2d 604, 615 (D. Del. 2007) (“Rules 26(a)(2)(B) and
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`2
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`Case 1:19-cv-01410-MN Document 270 Filed 10/31/23 Page 4 of 11 PageID #: 10812
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`26(e)(1) require disclosures in advance of trial of the bases and reasons for an expert’s opinions.”)
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`(emphasis added). Accordingly, the Court should evaluate the motion under the Third Circuit’s
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`Pennypack decision, which governs belated requests to supplement expert opinion prior to trial.
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`See, e.g., BearBox LLC v. Lancium LLC, C.A. No. 21-534-GBW, 2022 WL 17403466, at *1-3 (D.
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`Del. Nov. 23, 2022) (striking supplemental expert report submitted 3 weeks before trial after
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`applying Pennypack factors); Cirba Inc. v. VMware, Inc., C.A. No. 19-742-GBW, 2023 WL
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`6799267, at *2-3 (D. Del. Mar. 30, 2023) (striking new infringement opinion 3 weeks before trial
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`after applying Pennypack factors). Under Pennypack, courts considering requests to supplement
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`expert testimony weigh:
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`(1) the prejudice or surprise in fact of the party against whom the evidence would
`have been presented, (2) the ability of that party to cure the prejudice, (3) the extent
`to which the presentation of the evidence would disrupt the orderly and efficient
`trial of the case or other cases in the court, (4) bad faith or willfulness in failing to
`comply with the court's order, and (5) the importance of the excluded evidence.
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`LabMD Inc. v. Boback, 47 F.4th 164, 189 (3d Cir. 2022). “[I]n ‘sophisticated, complex litigation
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`involving parties represented by competent counsel,’ courts have ‘been less indulgent’ in applying
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`the Pennypack factors and ‘more willing to exclude evidence without a strict showing that each of
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`the Pennypack factors has been satisfied.’” Cirba, 2023 WL 6799267, at *2 (quoting Bridgestone
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`Sports Co. v. Acushnet Co., No. CIVA 05-132 JJF, 2007 WL 521894, at *4 (D. Del. Feb. 15,
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`2007)). Here, the Pennypack factors strongly weigh against VB Assets’ request for leave to amend.
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`The fifth Pennypack factor—the importance of the evidence at issue—weighs against
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`granting leave to amend because the exhibits are irrelevant to any issue in the case. They relate to
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`features and technology that VB Assets has not accused. They describe at a high level—with no
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`technical detail—that future Alexa features will rely on the new LLM system. (See Mot., Exs. A-
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`C.)
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`3
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`Case 1:19-cv-01410-MN Document 270 Filed 10/31/23 Page 5 of 11 PageID #: 10813
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` VB Assets does not accuse the future LLM system in its complaint, in its infringement
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`contentions, or in its expert reports. Indeed, in its motion VB Assets does not even attempt to
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`show that it ever accused the future LLM system in this case.
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`, it is irrelevant to any
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`issue in this case, and by definition unimportant. See TQ Delta, LLC v. Adtran, Inc., Civil Action
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`No. 14-954-RGA, 2020 WL 4529865, at *2 (D. Del. July 31, 2020) (fifth Pennypack factor
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`supported exclusion of expert testimony because the expert’s DOE opinion was either “not
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`materially different from what [he] stated in his opening report,” or it introduced a new
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`infringement theory, in which case “Plaintiff just cannot raise the entirely new argument that the
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`products infringe under a DOE theory”). And, for the same reason, the exhibits themselves are
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`inadmissible as irrelevant under Fed. R. Evid. 402.
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`The first, second, and third Pennypack factors—prejudice to Amazon, the inability to cure
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`that prejudice, and disruption to an orderly and efficient trial—also weigh against granting leave
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`to amend. Amazon will suffer real and significant prejudice if VB Assets and Dr. Polish reference
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`the new unaccused LLM system and present an infringement theory for the first time at trial. TQ
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`Delta, 2020 WL 4529865, at *2 (A “belated attempt” to introduce a new “theory of infringement”
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`is “not a mere correction of information, but instead, creates a new ballgame,” as the “[d]efendant
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`would need to present new defenses . . . that [it] did not prepare for during discovery.”) (citations
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`omitted)). The parties have litigated this case for over four years, exchanging their expert opinions
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`and arguments on noninfringement of Alexa and the current NLU system. Neither party has
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`provided any theories on the operation and noninfringement of the new
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`because VB Assets has never accused it. And, to date, VB Assets has provided no notice to
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`4
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`Case 1:19-cv-01410-MN Document 270 Filed 10/31/23 Page 6 of 11 PageID #: 10814
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`Amazon of its infringement theory for the new LLM system, much less chart the new LLM system
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`or the exhibits at issue here against any asserted claim. Permitting Dr. Polish to disclose a new
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`infringement theory for a new and
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` system at trial—a system on which the parties did
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`not conduct any discovery—would create a trial by ambush that will prejudice Amazon. Amazon
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`would be forced to respond to an infringement theory disclosed for the first time at trial without
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`any technical documents and source code that show how the new LLM system works and how it
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`differs from the asserted claims. See TQ Delta, 2020 WL 4529865, at *2. And with trial just days
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`away, no cure is available to Amazon if VB Assets discloses its LLM exhibits and its related
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`infringement theories to the jury.1 See BearBox , 2022 WL 17403466, at *1-3 (precluding
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`supplemental opinion because “[t]he risk of prejudice suffered by [movant] is uncurable in light
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`of the strained schedule and quickly approaching trial”). Worse yet, if VB Assets presents any
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`evidence related to the unaccused LLM, the jury may mistakenly believe either
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`—all without any opportunity for Amazon to present documents,
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`source code, or fact testimony explaining the new LLM system and addressing VB Assets’ new
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`infringement arguments. See Cirba Inc., 2023 WL 6799267, at *2-3 (factors 2 and 3 favored
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`exclusion where “expert discovery is closed, the deadlines for dispositive motions and Daubert
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`motions have passed, and trial is set to begin in less than a month”). For the same reasons, the
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`Court should exclude the exhibits themselves as unduly prejudicial and likely to cause juror
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`confusion under Fed. R. Evid. 403.
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`1 VB Assets’ contention that “[a]ny conceivable prejudice could be cured through trial
`testimony about these documents from Amazon witnesses knowledgeable about how Alexa
`works” lacks merit. (Mot. at 7-8.) Amazon’s fact witnesses cannot address VB Assets’ as-yet
`undisclosed expert testimony about these exhibits, and no witnesses who worked on and have deep
`knowledge of the LLM system will testify at trial in this case.
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`5
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`Case 1:19-cv-01410-MN Document 270 Filed 10/31/23 Page 7 of 11 PageID #: 10815
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`The last Pennypack factor—bad faith or willfulness in failing to comply with the
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`scheduling order—is, at best, neutral. While VB Assets may not have acted in bad faith, its lack
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`of diligence in promptly raising this dispute, and its failure to disclose the new opinions it intends
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`its expert to present to the jury, weighs against its request for leave to amend. The exhibits VB
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`Assets seeks to add to its trial exhibit list were publicly available over a month ago, as of September
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`20, 2023, and VB Assets admits it was aware of them by October 11, 2023. Yet, it waited until
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`after close of business on Friday, October 20, 2023 to notify Amazon for the first time of its intent
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`to amend its trial exhibit list, and waited until the following Friday, October 27, 2023, one business
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`day before the final pre-trial conference and less than one week before the start of trial, to file its
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`motion. And while it told Amazon that it intends for its expert Dr. Polish to offer opinions about
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`these documents and explains in its motion that these exhibits will be used by Dr. Polish, it has not
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`disclosed to Amazon the new expert opinions or its new infringement contentions based on the
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`documents it seeks to add.
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`In its motion, VB Assets does not address the Pennypack factors, focusing instead on the
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`“good cause” standard to modify a scheduling order, but its arguments fail regardless. First, VB
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`Assets argues that “the[] documents do not entail any new theories or opinions [because] VB
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`Assets . . . seeks [] to use them as further evidence that reinforces the opinions that is experts have
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`already disclosed.” (Mot. at 2.) But Dr. Polish could not possibly have any opinions about the
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`new LLM system to be “reinforce[d]” because he has neither considered nor analyzed the new
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`exhibits, let alone any documents or source code related to the new LLM system. And the LLM
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`system cannot reinforce Dr. Polish’s opinions on infringement by the accused NLU system, as VB
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`Assets argues,
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`6
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`Case 1:19-cv-01410-MN Document 270 Filed 10/31/23 Page 8 of 11 PageID #: 10816
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`Second, VB Assets argues that the new exhibits “are central to the jury’s determination of
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`infringement” because they purportedly show a “contradiction between Amazon’s public
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`statements about Alexa and Amazon’s litigation positions . . . .” (Mot. at 6.) VB Assets is wrong,
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`and its serious accusation that Amazon misrepresented facts concerning the design and operation
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`of the accused NLU system is both false and improper. Amazon’s public statements regarding the
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`new LLM system
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` could not possibly contradict positions Amazon
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`has taken in the case about the operation of
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` that VB Assets has
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`accused. And VB Assets’ stated intention to use its experts to undermine credibility of Amazon
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`witnesses only highlights the prejudice to Amazon of permitting the amendment.
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`In light of this, VB Assets’ claim that these documents are not just relevant but central to
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`the infringement analysis only highlights the impropriety of allowing it to proceed. The jury will
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`hear no evidence whatsoever about the design and function of the new LLM system or how it
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`operates. Yet VB Assets intends to use the exhibits with its expert to suggest that these feature
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`announcements nonetheless prove infringement or bear on the credibility of Amazon’s witnesses
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`and experts. That will confuse jurors, prejudice Amazon, and create a trial-within-a-trial about a
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`collateral issue.
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`None of the out-of-circuit cases VB Assets cites support its requested relief:
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`
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`In Am. Family Mut. Ins. Co. v. Teamcorp Inc., a Colorado court permitted a plaintiff to
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`amend its exhibit list to add as an exhibit an application with the Colorado Secretary of
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`State two years before, reserving the corporate name “Laconia Homes, Inc.” No. 07-
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`cv-00200-WYD-MJW, 2008 U.S. Dist. LEXIS 135302, at *4 (D. Colo. Dec. 18, 2008).
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`The exhibit was directly relevant to the plaintiff’s defense that defendants d/b/a
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`“Laconia Homes” desired to incorporate and reserved the corporate name when the
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`7
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`Case 1:19-cv-01410-MN Document 270 Filed 10/31/23 Page 9 of 11 PageID #: 10817
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`plaintiff mistakenly issued an insurance policy to “Laconia Homes, Inc.” instead of
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`those defendants’ proper corporate names. Id. at 3. The addition also caused minimal
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`disruption since trial was still months away. Id. at *8.
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`
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`In Lassere v. Home Depot U.S.A., Inc., a court in Louisiana permitted a plaintiff to
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`supplement its trial exhibit list where doing so resulted in no prejudice, since the
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`defendant had collected and produced the records during discovery. No. 12-2131, 2015
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`U.S. Dist. LEXIS 191944, at *4-5 (E. D. La. Jan. 23, 2015).
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`
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`In Sonder United States v. 635 N. Scott, No. 18-13891, 2021 U.S. Dist. LEXIS 249663,
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`at *15 (E.D. La. Feb. 23, 2021) and Wilson v. Liberty Mut. Ins. Co., Civil Action No.
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`15-1416, 2016 WL 10932620, at *3 (W.D. La. Apr. 28, 2016), the courts permitted
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`exhibit list amendments but reopened discovery in light of the new exhibits, an
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`untenable result here with trial just days away.
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`III.
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`CONCLUSION
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`The Court should not allow VB Assets to amend its trial exhibit list and introduce irrelevant
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`evidence related to unreleased, unaccused features that would serve only to confuse the jury. The
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`Court should deny the motion in its entirety.
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`8
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`Case 1:19-cv-01410-MN Document 270 Filed 10/31/23 Page 10 of 11 PageID #: 10818
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`ASHBY & GEDDES
`
`/s/ Andrew C. Mayo
`______________________________
`Steven J. Balick (#2114)
`Andrew C. Mayo (#5207)
`500 Delaware Avenue, 8th Floor
`P.O. Box 1150
`Wilmington, DE 19899
`(302) 654-1888
`sbalick@ashbygeddes.com
`amayo@ashbygeddes.com
`
`Attorneys for Defendants
`
`Of Counsel:
`
`J. David Hadden, CSB No. 176148
`Email: dhadden@fenwick.com
`Saina S. Shamilov, CSB No. 215636
`Email: sshamilov@fenwick.com
`Ravi R. Ranganath, CSB No. 272981
`rranganath@fenwick.com
`Vigen Salmastlian, CSB No. 276846
`Email: vsalmastlian@fenwick.com
`FENWICK & WEST LLP
`Silicon Valley Center
`801 California Street
`Mountain View, CA 94041
`Telephone: 650.988.8500
`Facsimile: 650.938.520
`
`Dated: October 29, 2023
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`9
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`Case 1:19-cv-01410-MN Document 270 Filed 10/31/23 Page 11 of 11 PageID #: 10819
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`CERTIFICATE OF SERVICE
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`I hereby certify that on 29th day of October, 2023, the attached DEFENDANTS’
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`OPPOSITION TO VB ASSETS’ MOTION TO AMEND TRIAL EXHIBIT LIST TO ADD
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`DOCUMENTS DESCRIBING NEW, UNRELEASED FEATURES AND TECHNOLOGY
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`ON THE EVE OF TRIAL was served upon the below-named counsel of record at the address
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`and in the manner indicated:
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`Neal C. Belgam, Esquire
`SMITH KATZENSTEIN & JENKINS LLP
`1000 West Street, Suite 1501
`Wilmington, DE 19801
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`Ryan S. Benyamin, Esquire
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`633 West Fifth Street, Suite 1550
`Los Angeles, CA 90071-2027
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`James C. Yoon, Esquire
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
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`Brad Tennis, Esquire
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`1700 K Street NW, Fifth Floor
`Washington, DC 20006-3814
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`/s/ Andrew C. Mayo
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`Andrew C. Mayo
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