UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`ARRIS GROUP, INC.
`AND
`COX COMMUNICATIONS, INC.
`Petitioner
`
`v.
`
`C-CATION TECHNOLOGIES, LLC
`Patent Owner
`
`
`
`Case: IPR2015-00635
`U.S. PATENT NO. 5,563,883
`
`
`
`
`PETITIONERS’ MOTION TO EXCLUDE
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`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`ARRIS GROUP, INC.
`AND
`COX COMMUNICATIONS, INC.
`Petitioner
`
`v.
`
`C-CATION TECHNOLOGIES, LLC
`Patent Owner
`
`
`
`Case: IPR2015-00635
`U.S. PATENT NO. 5,563,883
`
`
`
`
`PETITIONERS’ MOTION TO EXCLUDE
`
`
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`
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`
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`TABLE OF CONTENTS
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`
`I.
`II.
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`PRELIMINARY STATEMENT ..................................................................... 1
`IDENTIFICATION OF OBJECTIONS IN THE RECORD AND
`PATENT OWNER’S USE OF THE EVIDENCE .......................................... 1
`III. GOVERNING LAW ....................................................................................... 2
`A.
`The Rule Against Hearsay ..................................................................... 2
`B.
`Evidence of an Allegedly Inconsistent Statement Must Be
`Shown to the Witness to Be Admissible ............................................... 4
`The Requirement of Completeness ....................................................... 5
`C.
`IV. ARGUMENT ................................................................................................... 6
`A.
`The Lipoff Report is Inadmissible Hearsay .......................................... 6
`1.
`The Lipoff Report is an Out of Court Statement ........................ 6
`2.
`The Lipoff Report Is Being Offered to Prove the Truth of
`What It Purportedly States .......................................................... 6
`The Lipoff Report Does Not Fall Under Any Exclusion
`or Exceptions to the Rule Against Hearsay ................................ 7
`To the Extent that Patent Owner Uses the Lipoff Report to
`Impeach Mr. Lipoff, Patent Owner’s Attempted Impeachment
`Is Improper Under the Federal Rules of Evidence ................................ 9
`The Lipoff Report Is Inadmissible Because It Is Incomplete ............. 11
`C.
`CONCLUSION .............................................................................................. 12
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`3.
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`B.
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`V.
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`
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`TABLE OF AUTHORITIES
`
`Cases
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`Aetna, Inc. v. Blue Cross Blue Shield of Michigan,
`No. 11-15346, 2015 WL 1646464 (E.D. Mich. Apr. 14, 2015) ........................... 3
`
`Page(s)
`
`Alexie v. United States,
`No. 3:05-cv-002997, 2009 WL 160354 (D. Alaska Jan. 21, 2009) ..................... 3
`
`Federal Housing Finance Agency v. Nomura Holding America, Inc.,
`No. 11cv6201, 2015 WL 539489 (S.D.N.Y. Feb. 10, 2015) ................................ 3
`
`Foley v. Town of Lee,
`871 F. Supp.2d 39 (D.N.H. 2012) ......................................................................... 3
`
`Grand Acadian, Inc. v. United States,
`101 Fed. Cl. 398 (2011) ........................................................................................ 3
`
`Mahnke v. Washington Metropolitan Area Transit Authority,
`821 F. Supp.2d 125 (D.D.C. 2011) ....................................................................... 3
`
`Sigler v. American Honda Motor Co.,
`532 F.3d 469 (6th Cir. 2008) ................................................................................ 3
`
`Skyhook Wireless, Inc. v. Google, Inc.,
`No. 10-11571-RWZ, 2015 WL 10015295 (D. Mass. Feb. 27, 2015) .............. 3, 8
`
`United States v. Elliott,
`771 F.2d 1046 (7th Cir. 1985) .............................................................................. 4
`
`United States v. Green,
`556 F.3d 151 (3d Cir. 2009) ................................................................................. 4
`
`United States v. Hoffecker,
`530 F.3d 137 (3d Cir. 2008) ........................................................................... 5, 11
`
`OTHER AUTHORITIES
`
`37 C.F.R. § 42.62(a) ................................................................................................... 2
`
`37 C.F.R. § 42.64(b)(1) .............................................................................................. 1
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`
`
`
`
`
`
`Charles T. McCormick, et al., MCCORMICK ON EVIDENCE
`§ 37 (7th ed., 2013) ............................................................................................... 4
`
`Fed. R. Evid. 106 ............................................................................................. 1, 5, 12
`
`Fed. R. Evid. 613(b) ..........................................................................................passim
`
`Fed. R. Evid. 801 ..............................................................................................passim
`
`Fed. R. Evid. 802 ..............................................................................................passim
`
`Fed. R. Evid. 803 ................................................................................................... 8, 9
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`
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`
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`TABLE OF ABBREVIATIONS
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`Abbreviation
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`’883 patent
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`Resp.
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`the Lipoff Report
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`
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`
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`Meaning
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`U.S. Patent No. 5,563,883
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`Patent Owner Response
`
`Patent Owner’s Ex. 2028
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`
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`I.
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`PRELIMINARY STATEMENT
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`IPR2015-00635
`U.S. Patent No. 5,563,883
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`Petitioners move to exclude Exhibit 2028 (“the Lipoff Report”)—an expert
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`report by Petitioners’ expert witness, Mr. Lipoff, from a litigation that Petitioners
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`were not party to and that was intended to rebut certain positions taken by Patent
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`Owner during that litigation. The Lipoff Report is inadmissible at least because (1)
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`it is hearsay for which no exception applies, (2) it is being used in an improper
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`attempt to impeach Mr. Lipoff’s credibility, and (3) it is incomplete because Patent
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`Owner has redacted substantial portions from its text. See FED. R. EVID. 106,
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`613(b), & 802. For the reasons below, Petitioners ask that their Motion to Exclude
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`be granted and the Lipoff Report be excluded from evidence.
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`II.
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`IDENTIFICATION OF OBJECTIONS IN THE RECORD AND
`PATENT OWNER’S USE OF THE EVIDENCE
`
`Petitioner filed and served timely objections to the Lipoff Report on
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`November 12, 2015. See Paper No. 31; 37 C.F.R. § 42.64(b)(1). Petitioners
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`objected to the Lipoff Report on each ground raised in this Motion: (1)
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`completeness under Fed. R. Evid. 106, Paper No. 31 at 2, (2) hearsay under Fed. R.
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`Evid. 802, id. at 3, and (3) improper impeachment under Fed. R. Evid. 613(b), id.
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`Having raised each of these objections, Petitioners now move to exclude the Lipoff
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`Report. An explanation of each of these objections is below.
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`1
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`Patent Owner relies on the objectionable exhibit at pages 21-22 and 36-37 of
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`its Patent Owner Response. See Resp. at 21-22, 36-37.
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`III. GOVERNING LAW
`The Federal Rules of Evidence govern the admissibility of evidence in trials
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`before the Board. See 37 C.F.R. § 42.62(a) (“Except as otherwise provided in this
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`subpart, the Federal Rules of Evidence shall apply to a proceeding.”). The law
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`underlying each of Petitioners’ objections that form the basis of this Motion is
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`discussed in the sections that follow.
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`A. The Rule Against Hearsay
`“Hearsay is not admissible” unless a federal statute, rule, or other rules
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`prescribed by the Supreme Court make it admissible. FED. R. EVID. 802.
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`“Hearsay” is a statement that “the declarant does not make while testifying at the
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`current trial or hearing,” and “a party offers into evidence to prove the truth of the
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`matter asserted in the statement.” FED. R. EVID. 801(c). A witness’s prior
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`statement is not hearsay if “[t]he declarant testifies and is subject to cross-
`
`examination about a prior statement,” and certain additional conditions are
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`satisfied, including that the prior statement be made “under penalty of perjury at a
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`trial, hearing, or other proceeding or in a deposition. See Fed. R. Evid. 801(d)(1).
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`Out of court statements by parties may be offered against the declarant provided
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`certain criteria are met. See FED. R. EVID. 801(d)(2).
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`2
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`“Application of the hearsay rule to exclude both parties’ experts [sic] reports
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`is quite straightforward. The reports are out-of-court statements by witnesses
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`offered for their truth and so fall within the definition of hearsay in Fed. R. Evid.
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`801.” Alexie v. United States, No. 3:05-cv-002997, 2009 WL 160354 (D. Alaska
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`Jan. 21, 2009). This is a commonly applied rule both in bench and jury trials. See,
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`e.g., Sigler v. Am. Honda Motor Co., 532 F.3d 469, 486 (6th Cir. 2008); Aetna, Inc.
`
`v. Blue Cross Blue Shield of Mich., No. 11-15346, 2015 WL 1646464, *2 (E.D.
`
`Mich. Apr. 14, 2015) (“Generally, the written reports of expert witnesses prepared
`
`in anticipation of trial are inadmissible because they are considered hearsay.”);
`
`Skyhook Wireless, Inc. v. Google, Inc., No. 10-11571-RWZ, 2015 WL 10015295,
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`at *5 (D. Mass. Feb. 27, 2015) (holding that an expert’s “deposition and report are
`
`hearsay”); Fed. Housing Finance Agency v. Nomura Holding Am., Inc., No.
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`11cv6201, 2015 WL 539489 (S.D.N.Y. Feb. 10, 2015) (“In short, [the experts’]
`
`reports constitute inadmissible hearsay.”); Foley v. Town of Lee, 871 F. Supp.2d 39
`
`(D.N.H. 2012); Mahnke v. Wash. Metropolitan Area Transit Auth., 821 F. Supp.2d
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`125 (D.D.C. 2011) (“Technically, medical reports prepared by experts and the CVs
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`of expert witnesses are hearsay and are not admissible into evidence pursuant to
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`Fed. R. Evid. 802.”); Grand Acadian, Inc. v. United States, 101 Fed. Cl. 398, 405
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`(2011) (holding, in bench trial that “expert reports are inadmissible hearsay”).
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`3
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`
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`Evidence of an Allegedly Inconsistent Statement Must Be Shown
`to the Witness to Be Admissible
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`B.
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`Federal Rule of Evidence 613(b) limits the manner in which a witness may
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`have their credibility impeached by an alleged prior inconsistent statement. That
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`rule requires that such a prior statement “is admissible only if the witness is given
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`an opportunity to explain or deny the statement and an adverse party is given an
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`opportunity to examine the witness about it, or if justice so requires.” FED. R.
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`EVID. 613(b). Thus, where a witness is not questioned about the allegedly prior
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`inconsistent statement, those statements are excluded. See, e.g., United States v.
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`Elliott, 771 F.2d 1046 (7th Cir. 1985) (“The court properly excluded the superior’s
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`testimony on the ground that [the accused] had not been questioned about the
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`remarks made to his superior.”); United States v. Green, 556 F.3d 151, 158 n.5 (3d
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`Cir. 2009) (noting that while the “prosecution was “entitled to question [the
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`accused] about his prior written statement during cross-examination, . . . the rule is
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`explicit that in order to ‘prove up’ the content of the inconsistent statement, [the
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`accused] must be confronted with it”); see also Charles T. McCormick, et al.,
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`MCCORMICK ON EVIDENCE § 37 (7th ed., 2013) (indicating that to introduce a
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`witness’s prior inconsistent statement, “at some point in time—even after the
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`introduction of the extrinsic evidence—the witness is afforded the chance to deny
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`or explain the statement . . .”).
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`4
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`
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`C. The Requirement of Completeness
`Federal Rule of Evidence 106 governs the admissibility of, among other
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`things, writings. The rule requires the completeness of a document when
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`considering part of the document may be unfair. The rule provides:
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`If a party introduces all or part of a writing or recorded
`statement, and adverse party may
`require
`the
`introduction, at that time, of any other part—or any other
`writing or recorded statement—that in fairness ought to
`be considered at the same time.
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`FED. R. EVID. 106. The rule seeks to avoid “misleading impression[s] created by
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`taking matters out of context.” Id. (advisory committee’s note to proposed rules).
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`To determine whether the admitted portion is necessary trial courts consider (1) the
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`relevance of the omitted portion, (2) whether the omitted portion gives context to
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`the portion in evidence, (3) whether the finder of fact will be misled, and (4)
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`whether the omitted portions ensure a fair and impartial understanding of the
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`evidence. See United States v. Hoffecker, 530 F.3d 137 (3d Cir. 2008). There is
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`no requirement that portions that do not explain or are irrelevant to the admitted
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`portions be admitted.
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`5
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`IV. ARGUMENT
`A. The Lipoff Report is Inadmissible Hearsay
`1.
`The Lipoff Report is an Out of Court Statement
`Exhibit 2028 purports to be an “Expert Report of Stuart Lipoff Regarding
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`Defendants’ Non-Infringement of U.S. Patent No. 5,563,883 and Related Technical
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`Matters,” from a now-settled matter involving Comcast, among others. See Ex.
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`2028. Petitioners were not parties to that litigation, and did not retain Mr. Lipoff to
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`render opinions in that matter. Id. at ¶ 2 (listing parties that had retained Mr.
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`Lipoff). The Lipoff Report is not signed under penalty of perjury or under oath.
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`See generally Ex. 2028. Statements in the Lipoff Report were not made while Mr.
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`Lipoff testifying at a trial or hearing (let alone the current one). It thus meets the
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`first prong of the hearsay definition. See FED. R. EVID. 801(c)(1).
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`2.
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`The Lipoff Report Is Being Offered to Prove the Truth of
`What It Purportedly States
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`C-Cation offers the Lipoff Report to convince the Board to read a
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`requirement that the “central controller” must perform the step recited in claim
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`limitation 1(c). See Resp. at 36-37. As characterized by C-Cation, Mr. Lipoff’s
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`statement was that “step (c) must be performed by the central controller.” Resp. at
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`36. From this, C-Cation concludes that “Mr. Lipoff’s prior opinion necessarily
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`rules out step (c) being performed by a remote terminal.” Id. at 37. C-Cation is
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`thus using Mr. Lipoff’s alleged statement that “step (c) must be performed by the
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`6
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`central controller” (using C-Cation’s paraphrasing of the Lipoff Report) in an
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`attempt to prove that step 1(c) “must be performed by the central controller.”
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`Resp. at 36. Therefore, Mr. Lipoff’s statement is being proffered in an attempt to
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`prove what C-Cation characterizes the Lipoff Report as saying. Thus, the second
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`prong of the hearsay definition is also met; C-Cation has “offer[ed] [it] in evidence
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`to prove the truth of the matter asserted in the statement.” FED. R. EVID. 801
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`(c)(2).
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`C-Cation offers the report for another hearsay purpose: to try to prove that
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`Mr. Lipoff has taken an inconsistent position in the past.1 See, e.g., Resp. at 21-22.
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`Even if this form of attempted impeachment were proper under the Federal Rules
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`of Evidence (it is not, as we show below), this too is offering the Lipoff Report to
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`prove the truth of what it purportedly states. Thus, all proffered uses of the Lipoff
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`Report fall within the definition of hearsay under Fed. R. Evid. 801(c), and should
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`be excluded under Fed. R. Evid. 802.
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`3.
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`The Lipoff Report Does Not Fall Under Any Exclusion or
`Exceptions to the Rule Against Hearsay
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`Moreover, the Lipoff Report does not fall within any of the exclusions or
`
`exceptions to the rule against hearsay. First, it does not fall under Rule 801(d)(1)’s
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`1 In so doing, C-Cation resorts to misquoting the Lipoff Report. Compare Resp. at
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`21 with Ex. 2028, ¶ 365.
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`7
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`exclusion regarding prior statements because Mr. Lipoff was not “subject to cross-
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`examination about” the prior statement. Instead, C-Cation’s counsel merely
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`referred to prior opinions and asked vague questions about whether Mr. Lipoff
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`believed he had been consistent between earlier opinions and those in his
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`declaration. See Ex. 2027 at 25:23-28:5. If not, C-Cation’s counsel posited, did
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`Mr. Lipoff believe it “would be important to tell the Patent Trial and Appeal
`
`Board” about any inconsistencies? Id. This vague reference to prior opinions is
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`not a proper cross-examination about alleged inconsistent statements. Nor was Mr.
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`Lipoff’s statement from the Lipoff Report: (1) “given under penalty of perjury,” as
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`required by Fed. R. Evid 801(d)(1)(A); or (2) offered to rebut a charge of recent
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`fabrication or improper influence, or to rehabilitate credibility, or to identify a
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`person as someone that Mr. Lipoff perceived earlier under Fed. R. Evid.
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`801(d)(1)(B) or (C). Mr. Lipoff’s statement is also not an admission of a party
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`opponent. See Skyhook Wireless, 2015 WL 10015295, at *5; FED. R. EVID.
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`801(d)(2).
`
`Moreover, the Lipoff Report does not fall within any exception to the rule
`
`against hearsay under Fed. R. Evid. 803. As an alleged opinion about what is
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`encompassed by a claim and what is not, it is not a present sense impression, an
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`excited utterance, a statement about mental, emotional, or physical condition, a
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`statement made for medical diagnosis or treatment, or a record of a regularly
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`8
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`conducted activity. See FED. R. EVID. 803(1)-(6). Nor is it being offered as
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`evidence of the absence of a record of a regularly conducted activity. Id. at 803(7).
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`The Lipoff Report is not a public record, evidence of the absence of a public
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`record, a record of a religious organization concerning personal or family history, a
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`family record, a record in a document that affects an interest in property, of a
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`statement in such a document. Id. at 803(8)-(15). Finally, it is not itself a
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`statement in an ancient document, a market report or commercial publication, a
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`statement in a learned treatise, evidence of reputation or family history, evidence
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`of reputation regarding boundaries or character, or evidence of a prior judgment of
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`any kind. Id. at 803(16)-(23). Therefore, none of the exceptions to the rule against
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`hearsay apply.
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`Given the foregoing, the Board should exclude the Lipoff Report because it
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`is hearsay under Fed. R. Evid. 802.
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`B.
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`To the Extent that Patent Owner Uses the Lipoff Report to
`Impeach Mr. Lipoff, Patent Owner’s Attempted Impeachment Is
`Improper Under the Federal Rules of Evidence
`
`To the extent that C-Cation is using the Lipoff Report to try to impeach Mr.
`
`Lipoff’s credibility, see Resp. at 21-22, the Lipoff Report should not be admissible
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`for that purpose either. C-Cation failed to follow Fed. R. Evid. 613(b), making C-
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`Cation’s attempted impeachment improper.
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`9
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`Notwithstanding vague references
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`to
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`the Lipoff Report during his
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`deposition, Mr. Lipoff was not presented with any statement made in his prior
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`expert report or given an opportunity to address such statements during his
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`deposition. See Ex. 2027 at 25:23-28:5. In fact, during a brief discussion about his
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`prior report, Mr. Lipoff testified that “if there were unexplained inconsistencies
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`[between his prior report and his declaration] it could be of interest to [the Board]
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`to understand if there are sound reasons behind them versus some other reason.”
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`Id. at 28:2-5. But, because C-Cation’s counsel never presented Mr. Lipoff with
`
`any specific statement from the earlier report during cross-examination, Mr. Lipoff
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`was never given the opportunity to explain the statement, contrary to the rule. See
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`FED. R. EVID. 613(b) (“Extrinsic evidence of a witness’s prior inconsistent
`
`statement is admissible only if the witness is given an opportunity to explain or
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`deny the statement . . . .”). C-Cation’s approach to “impeachment” here is
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`tantamount to “trial by ambush.” C-Cation deprived Mr. Lipoff of any opportunity
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`to explain his statements from his expert report, and, as shown below, has redacted
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`portions which could inform the meaning of the statement C-Cation relies upon.
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`Since Mr. Lipoff was never confronted with any specific statement he
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`allegedly made in the Lipoff Report, it is not admissible for C-Cation’s attempted
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`impeachment of Mr. Lipoff’s credibility under Rule 613(b) and it should be
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`excluded for this additional reason.
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`10
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`
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`C. The Lipoff Report Is Inadmissible Because It Is Incomplete
`To the extent that the foregoing reasons are found insufficient to exclude the
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`Lipoff Report, it should be excluded because it is incomplete in that it is heavily
`
`redacted. Indeed, Patent Owner redacted entire sections of the report that may be
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`needed to give context to the single paragraph that Patent Owner relies upon in its
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`response. See Ex. 2028, ¶¶ 73, 83, 97-99, 115, 121, 150-54, 156-64, 170, 185,
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`193-94, 211-14, 217-20, 224-25, 228, 231-41, 248, 251, 253-55, 261-62, 265, 277,
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`282, 294-98, 302-03, 307, 312-15, 321-22, 333-36, 340, 343-63.
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`Because of the heavy redactions to this material, Patent Owner has deprived
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`the Board and Petitioners of the ability to determine whether any of the material
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`omitted from the Lipoff Report bears on the statement that Patent Owner cherry-
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`picked from its text. Patent Owner’s redactions prevent Petitioners from
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`demonstrating that the omitted portions are relevant to the portion of the Lipoff
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`Report that Patent Owner relies upon, and whether those omitted portions are
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`necessary to give context to the statement Patent Owner has used. And since
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`substantial portions of the Lipoff Report are missing, it is impossible to tell
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`whether it is being used in a misleading manner, or whether the omissions prevent
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`a fair presentation of the evidence. See United States v. Hoffecker, 530 F.3d 137
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`(3d Cir. 2008).
`
`11
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`
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`Since C-Cation has redacted substantial portions of the Lipoff Report, C-
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`Cation cannot make a proffer to show that the redacted portions will not prejudice
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`Petitioners. And, Petitioners cannot say precisely what has been redacted since C-
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`Cation has not provided an unredacted copy. It is, therefore, appropriate to impose
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`upon C-Cation the burden of showing that the omitted portions are irrelevant to the
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`opinions that it relies upon in its Response.
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`In addition to excluding Exhibit 2028 under Fed. R. Evid. 802 and 613(b),
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`therefore, it should also be excluded as incomplete under Fed. R. Evid. 106.
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`V. CONCLUSION
`Petitioners’ Motion to Exclude Exhibit 2028 should be granted because the
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`Lipoff Report (1) is hearsay for which no exception applies, see Fed. R. Evid. 802,
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`(2) is being used in an improper attempt to impeach Mr. Lipoff’s credibility under
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`Fed. R. Evid. 613(b), and (3) is incomplete due to Patent Owner’s redactions, see
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`Fed. R. Evid. 106.
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`12
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`Respectfully submitted:
`
`/s/ Andrew R. Sommer
`
`Andrew R. Sommer (Reg. No. 53,932)
`WINSTON & STRAWN LLP
`1700 K Street NW
`Washington, DC 20006
`T: (202) 282-5000
`
`Jonathan E. Retsky (Reg. No. 34,415)
`WINSTON & STRAWN LLP
`35 W. Wacker Drive
`Chicago, IL 60601-9703
`T: (312) 558-5600
`
`Attorneys for Petitioner ARRIS Group,
`Inc.
`
`/s/ Michael J. Turton
`
`Mitchell G. Stockwell
`Reg. No. 39,389
`Michael J. Turton
`Reg. No. 40,852
`KILPATRICK TOWNSEND & STOCKTON
`LLP
`1100 Peachtree Street NE, Suite 2800
`Atlanta, GA 30309
`T: (404) 815-6500
`
`Attorneys for Petitioner Cox
`Communications, Inc.
`
`
`
`13
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`Dated: March 21, 2016
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`
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`IPR2015-00635
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`§ 42.6(e)—CERTIFICATION OF SERVICE
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`In accordance with § 42.6(e)(1), the undersigned certifies that on the 21st
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`day of March 2016, the above PETITIONERS’ MOTION TO EXCLUDE was
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`served, via electronic mail upon the following counsel for Patent Owner,
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`
`Respectfully submitted,
`
`/Andrew R. Sommer/
`Andrew R. Sommer
`(Reg. No. 53,932)
`Counsel for Petitioner ARRIS Group,
`Inc.
`
`Walter E. Hanley, Jr.
`whanley@kenyon.com
`
`Sheila Mortazavi
`smortazavi@kenyon.com
`
`Merri Moken
`MMoken@kenyon.com
`
`Dated: March 21, 2016
`
`
`
`
`
`
`
`
`WINSTON & STRAWN LLP
`1700 K Street NW
`Washington, DC 20006
`
`
`
`
`1
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