`
`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`v.
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`HUAWEI DEVICE USA, INC.,
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`Defendant.
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`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
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`
`
`v.
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`
`APPLE INC.,
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`
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`Defendant.
`
`
`Case No. 2:17-cv-513-JRG
`LEAD CASE
`
`Case No. 2:17-cv-516-JRG
`
`
`OPPOSED MOTION FOR LEAVE
`TO FILE MOTION TO STRIKE EXPERT
`DECLARATION SUBMITTED WITH DAUBERT BRIEFING
`
`Defendant Apple Inc. respectfully requests leave to file a motion to strike new opinions in
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`Mr. Alan Ratliff’s declaration that AGIS submitted with its opposition brief to Apple’s Daubert
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`motion more than two months after opening reports were due and more than two weeks after the
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`deadline to file motions to strike expert testimony.
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`The docket control order contains the following deadlines:
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`October 29, 2018
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`November 19, 2018
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`Serve Disclosures for Expert Witnesses by the Party
`with the Burden of Proof
`Serve Disclosures for Rebuttal Expert Witnesses
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`December 7, 2018
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`Deadline to Complete Expert Discovery
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`
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`Case 2:17-cv-00513-JRG Document 287 Filed 01/14/19 Page 2 of 4 PageID #: 18808
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`December 14, 2018
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`*File Dispositive Motions
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`December 14, 2018
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`
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`*File Motions to Strike Expert Testimony (including
`Daubert Motions)
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`No motion to strike expert testimony (including a
`Daubert motion) may be filed after this date without
`leave of the Court.
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`Dkt. No. 220. Apple filed a Daubert motion to exclude opinions of Mr. Alan Ratliff relating to
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`damages on December 14, 2018. Dkt. No. 231. In responding to that motion, AGIS submitted an
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`expert declaration from Mr. Ratliff on December 31, 2018 as exhibit C to its opposition brief. Dkt.
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`No. 250-4. The declaration contains new opinions from Mr. Ratliff that were not included in his
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`opening report that was served two months earlier on October 29, 2018. One example that is
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`included in Apple’s motion to strike, filed concurrently herewith according to Local Rule CV-7(k),
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`is that the Ratliff declaration includes an entire discussion about a patent portfolio (the “Navizon
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`portfolio”) that Apple uses as part of its damages analysis, which Mr. Ratliff failed to consider at
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`the time he filed his report and which is not implicated by and has no relevance to Apple’s Daubert
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`motion.
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`Apple’s motion to strike is the proper procedural device to address AGIS’ improper expert
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`declaration. Joe Andrew Salazar v. HTC Corp., No. 2:16-CV-1096 (E.D. Tex. May 18, 2018)
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`(granting a motion to strike the plaintiff’s expert’s declaration submitted in response to a summary
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`judgment motion). And because the Ratliff declaration was submitted more than two weeks after
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`the deadline to file motions to strike expert testimony, Apple respectfully requests leave to file a
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`motion to strike the declaration of Mr. Alan Ratliff.
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`2
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`Case 2:17-cv-00513-JRG Document 287 Filed 01/14/19 Page 3 of 4 PageID #: 18809
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`DATED: January 14, 2019
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` Respectfully submitted,
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`/s/ Melissa R. Smith
`Melissa R. Smith
`State Bar No. 24001351
`GILLAM & SMITH, LLP
`303 South Washington Ave.
`Marshall, TX 75670
`Tel: (903) 934-8450
`Fax: (903) 934-9257
`melissa@gillamsmithlaw.com
`
`John M. Desmarais
`Paul A. Bondor
`Michael P. Stadnick
`Ameet A. Modi
`Cosmin Maier
`Kerri-Ann Limbeek
`Brian Matty
`Tom BenGera
`Kathryn Bi
`Francesco Silletta
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`Telephone: (212) 351-3400
`Facsimile: (212) 351-3401
`Email: jdesmarais@desmaraisllp.com
`Email: pbondor@desmaraisllp.com
`Email: mstadnick@desmaraisllp.com
`Email: amodi@desmaraisllp.com
`Email: cmaier@desmaraisllp.com
`Email: klimbeek@desmaraisllp.com
`Email: bmatty@desmaraisllp.com
`Email: tbengera@desmaraisllp.com
`Email: kbi@desmaraisllp.com
`Email: fsilletta@desmaraisllp.com
`
`Counsel for Apple Inc.
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`3
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`Case 2:17-cv-00513-JRG Document 287 Filed 01/14/19 Page 4 of 4 PageID #: 18810
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`CERTIFICATE OF SERVICE
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`I hereby certify that the foregoing document was filed electronically in compliance with
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`Local Rule CV-5(a). Counsel of record for AGIS were served with a true and correct copy of the
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`foregoing document by electronic mail on January 14, 2019.
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`CERTIFICATE OF CONFERENCE
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`I hereby certify that counsel for Apple conferred with counsel for AGIS regarding the
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`foregoing motion on January 8, 2019. Counsel for AGIS indicated that they are opposed to the
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`relief sought in this motion.
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`4
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