Case 2:17-cv-00513-JRG Document 296 Filed 01/16/19 Page 1 of 15 PageID #: 19167
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE 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., et al.,
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` Defendants.
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`AGIS SOFTWARE DEVELOPMENT LLC,
`
` Plaintiff,
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`v.
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`APPLE INC.,
`
` Defendant.
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`
`
`
`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`Civil Action No. 2:17-CV-513-JRG
`(LEAD CASE)
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`
`
`Civil Action No. 2:17-CV-516-JRG
`(CONSOLIDATED CASE)
`
`APPLE INC.’S MOTION TO STRIKE THE UNTIMELY DECLARATION OF MR.
`ALAN RATLIFF ATTACHED TO DKT. 250 AS EXHIBIT C
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`Case 2:17-cv-00513-JRG Document 296 Filed 01/16/19 Page 2 of 15 PageID #: 19168
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`TABLE OF CONTENTS
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`Pages
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`INTRODUCTION ...............................................................................................................1
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`FACTUAL BACKGROUND ..............................................................................................1
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`I.
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`II.
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`III.
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`LEGAL STANDARD ..........................................................................................................3
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`IV.
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`ARGUMENT .......................................................................................................................4
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`A.
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`Mr. Ratliff’s New Opinions Were Not Previously Disclosed. .................................5
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`1.
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`2.
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`Mr. Ratliff Improperly Provided New Opinions Regarding The
`. ...................................................5
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`Mr. Ratliff Improperly Provided New Opinions In An Insufficient
`Attempt To Fix The Holes Apple Identified In His Analysis. .....................5
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`B.
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`Mr. Ratliff’s New Opinions Are Not Substantially Justified. ..................................6
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`1.
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`2.
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`The Information Regarding The
` Was Available To Mr. Ratliff At The Time He Submitted
`His Opening Damages Report. ....................................................................6
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`The Information Mr. Ratliff Relies On To Rehabilitate His
`Damages Analysis Was Available At The Time He Submitted His
`Opening Damages Report. ...........................................................................7
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`C.
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`Mr. Ratliff’s Failure To Include His New Opinions In His Opening
`Damages Report Is Not Harmless At Least Because It Deprived Apple Of
`The Opportunity To Respond. .................................................................................8
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`CONCLUSION ....................................................................................................................9
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`V.
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`i
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`Case 2:17-cv-00513-JRG Document 296 Filed 01/16/19 Page 3 of 15 PageID #: 19169
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`
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`Cases
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`TABLE OF AUTHORITIES
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`Pages
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`Avance v. Kerr-McGee Chem. LLC,
`No. 5:04CV209, 2006 WL 3484246 (E.D. Tex. Nov. 30, 2006) ............................ 3, 4, 7, 8
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`Buxton v. Lil’ Drug Store Prod., Inc.,
`No. 2:02-cv-178KS, 2007 WL 2254492 (S.D. Miss. Aug. 1, 2007) .................................. 7
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`Reliance Ins. Co. v. Louisiana Land & Exploration Co.,
`110 F.3d 253 (5th Cir. 1997) .............................................................................................. 8
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`Sierra Club, Lone Star Chapter v. Cedar Point Oil Co.,
` 73 F.3d 546 (5th Cir.1996) ................................................................................................ 7
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`Rules
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`Fed. R. Civ. P. 26 .................................................................................................................... 3, 4, 7
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`Fed. R. Civ. P. 37 ........................................................................................................................ 4, 7
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`
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`ii
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`Ex. 1
`Ex. 2
`Ex. 3
`Ex. 4
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`Ex. 5
`Ex. 6
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`Deposition of Brian Ankenbrandt, Aug. 30, 2018 (“Ankenbrandt Tr.”)
`Deposition of Alan Ratliff, Dec. 7, 2018 (“Ratliff Tr.”)
`Declaration of Cosmin Maier, Jan. 14, 2019 (“Maier Decl.”)
`Workpaper 21 to the Damages Expert Report of Alan Ratliff (“Ratliff
`Rep., Workpaper 21”)
`Rebuttal Damages Expert Report of Paul C. Meyer (“Meyer Rebuttal”)
`Apple’s Dec. 1, 2017 Invalidity Contentions (“Apple Invalidity
`Contentions”)
`Ninth Amended Docket Control Order (“Dkt. Control Order”)
`Apple’s Daubert Motion to Exclude the Opinions of Mr. Alan Ratliff
`Relating to Damages (“Daubert Mot.”)
`Plaintiff AGIS Software Development LLC’s Opposition to Apple
`Inc.’s Daubert Motion to Exclude the Opinions of Mr. Alan Ratliff
`Relating to Damages (“Daubert Opp.”)
`Dkt. No. 250, Ex. C Declaration of Alan Ratliff, Dec. 31, 2018 (“Ratliff Declaration”)
`Apple’s Reply In Support of Apple’s Daubert Motion to Exclude the
`Dkt. No. 268
`Opinions of Mr. Alan Ratliff Relating to Damages (“Daubert Reply”)
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`Dkt. No. 220
`Dkt. No. 231
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`Dkt. No. 250
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`Case 2:17-cv-00513-JRG Document 296 Filed 01/16/19 Page 4 of 15 PageID #: 19170
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`TABLE OF EXHIBITS
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`Exhibit Number
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`Description
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`Case 2:17-cv-00513-JRG Document 296 Filed 01/16/19 Page 5 of 15 PageID #: 19171
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`I.
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`INTRODUCTION
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`Defendant Apple Inc. (“Apple”) filed a Daubert motion demonstrating that Plaintiff AGIS
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`Software Development LLC’s (“AGIS”) damages expert’s opinions are unsupported and
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`unreliable. In response, seeking to gloss over those shortcomings, AGIS’s damages expert, Mr.
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`Ratliff, submitted new opinions masquerading as a “declaration.” Mr. Ratliff’s new submission
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`also attempts to rebut the damages analysis by Apple’s expert, Mr. Meyer, on issues which Mr.
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`Ratliff had ample opportunity to address in his opening expert report.
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`AGIS’s late submission does not fix the issues identified in Apple’s Daubert motion—
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`instead, it reveals AGIS’s recognition of the flaws in Mr. Ratliff’s analysis. Even if they are
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`intended to help to fix the flaws in his analysis—which, to be clear, they do not—those opinions
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`are improper, untimely, and should be stricken.
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`II.
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`FACTUAL BACKGROUND
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`The parties were required to submit expert reports on issues for which they bear the burden
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`of proof by October 29, 2018. (Dkt. No. 220 at 3.) Rebuttal expert reports were due on November
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`19, 2018. (Dkt. No. 220 at 3.) And expert discovery closed on December 7, 2018. (Dkt. No. 220
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`at 2.) That sequence of events was critical because the Court ordered the parties to file any motions
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`to strike or exclude expert testimony by December 14, 2018. (Dkt. No. 220 at 2.)
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`Consistent with the Court’s schedule, AGIS served its damages expert report on October
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`29, 2018 (the “Ratliff Report”); Apple served its rebuttal damages expert report on November 19,
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`2018 (the “Meyer Report”); and the parties deposed each other’s damages experts on December 6
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`and 7, 2018. On December 14, 2018, Apple filed a Daubert motion seeking to exclude certain
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`opinions of AGIS’s damages expert, Mr. Ratliff, as unsupported and unreliable. (Dkt. No.
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`[Daubert Mot.] 231.) AGIS filed its opposition on December 31, 2018. (Dkt. No. 250.) But in
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`direct contravention of the Court’s Docket Control Order, AGIS served a supplemental expert
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`report containing new opinions—stylized as a “declaration”—more than two months after AGIS’s
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`damages report was due. (Dkt. No. 250, Ex. C (the “Ratliff Declaration”).)
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`The Ratliff Declaration generally includes two categories of new opinions. First, Mr.
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`Ratliff attempts to rebut Apple’s primary damages theory—
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` are in no way implicated
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`by or mentioned in Apple’s Daubert motion. Second, Mr. Ratliff attempts to supplement his
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`opinions regarding the issues raised in Apple’s Daubert motion. Id. ¶¶ 7-11. Mr. Ratliff
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`effectively seeks to submit a reply expert report, which is not permitted by the Docket Control
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`Order.
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`Mr. Ratliff’s untimely expert opinions should have been provided in his damages report—
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`.
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`not two months later.
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`1 APL-AGIS_00835785.
`2 APL-AGIS_00863142; APL-AGIS_00863144.
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`2
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`Mr. Ratliff expressly conceded that he had not considered
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`. At that time, Mr. Ratliff did not provide any express opinions regarding those documents.
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`Mr. Ratliff’s other new opinions are directed to the criticisms Apple’s damages expert, Mr.
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`Meyer, made regarding Mr. Ratliff’s damages theory. But experts are not freely permitted to patch
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`holes in their analysis in response to criticisms.3
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`III. LEGAL STANDARD
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`Untimely expert opinions violate Fed. R. Civ. P. 26 and should generally be stricken. Rule
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`26(a)(2)(B) requires parties’ expert reports to contain “a complete statement of all opinions the
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`witness will express and the basis and reasons for them . . . .” Fed. R. Civ. P. 26(a)(2)(B).
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`Litigants violate Rule 26 when a party’s expert discloses opinions, or bases, that go beyond that
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`expert’s report. Avance v. Kerr-McGee Chem. LLC, No. 5:04CV209, 2006 WL 3484246, at *7
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`(E.D. Tex. Nov. 30, 2006). Thus, where a subsequent declaration discloses “new materials,” “new
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`information,” or “new opinions” that go beyond the expert’s report, the declaration violates Rule
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`26 and is properly struck under Rule 37. Id.
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`3 The parties held a meet and confer on January 9, 2018. AGIS was unable to articulate any
`justification for the untimely expert declaration. AGIS initially asserted that the declaration did
`not contain any new opinions. When confronted with Mr. Ratliff’s own words—referring to his
`statements new opinions (Dkt. 250, Ex. C ¶¶ 2-3)—AGIS shifted its position and stated that it
`would not seek to introduce those opinions at trial. But AGIS then retracted that position and said
`it would reserve the right to rely on the new opinions at trial because, according to AGIS, the new
`opinions were somehow proper (without any explanation why). Ex. 3 [Maier Decl.].
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`3
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`Under Rule 37(c)(1), a party that “fails to provide information . . . as required by Rule
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`26(a) . . . is not allowed to use that information . . . to supply evidence on a motion, at a hearing,
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`or at a trial . . . .” Fed. R. Civ. P. 37(c)(1) (emphasis added).4 Rule 37’s sanction is automatic
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`absent a showing by the party that failed to comply with Rule 26 that the failure “was substantially
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`justified or is harmless.” Id.; see also Avance, 2006 WL 3484246, at *6 (“To avoid sanctions, the
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`party who is alleged to have failed to comply with Rules 16 and 26 bears the burden to show that
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`its actions were substantially justified or harmless.”).
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`As this district has previously held, it would be “unfair and prejudicial” to allow “the
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`introduction of new information . . . for use in the Court's consideration of the parties' Daubert
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`motions,” because “Defendant would not have an opportunity for cross-examination on those new
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`issues.” Avance, 2006 WL 3484246, at *7 (emphasis in original). In the face of such prejudice,
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`the party that failed to comply with Rule 26 does not meet its burden to show that its failure was
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`substantially justified or is harmless. Id.5
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`IV. ARGUMENT
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`Mr. Ratliff’s declaration includes untimely opinions on issues for which AGIS bears the
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`burden of proof. Mr. Ratliff effectively concedes that his declaration contains previously
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`undisclosed opinions by stating that his declaration purportedly “address[es] facts which I have
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`never had an opportunity to render an opinion on . . . .” Dkt. 250, Ex. C ¶ 2. But Mr. Ratliff is not
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`4 “In addition to or instead of this sanction,” the court “may impose other appropriate sanctions.”
`Id.
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` 5
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` Where “portions of [challenged] affidavits present new information,” “the Court is not
`required . . . to parse out those portions of the affidavits that are new and those portions that were
`timely disclosed . . . .” Avance, 2006 WL 3484246, at *7. Thus, where portions of a challenged
`affidavit presents new information in violation of Rule 26, and that violation is not substantially
`justified and is not harmless, a court may strike the entirety of the affidavit without parsing the
`minutiae of the affidavit. Id.
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`4
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`permitted a reply damages report and Mr. Ratliff could have—and should have—provided his new
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`opinions on these matters when he was required to submit his damages report.
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`A. Mr. Ratliff’s New Opinions Were Not Previously Disclosed.
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`1.
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`Mr. Ratliff Improperly Provided New Opinions Regarding The
`.
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`Mr. Ratliff provided new opinions regarding the
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`. Thus, Mr.
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`Ratliff’s opinions at paragraphs 4-6 of his declaration are unquestionably new.
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`2.
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`Mr. Ratliff Improperly Provided New Opinions In An Insufficient
`Attempt To Fix The Holes Apple Identified In His Analysis.
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`Mr. Ratliff improperly attempts to supplement his original damages opinion by providing
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`new testimony to patch holes identified by Apple’s damages expert, Mr. Meyer. In particular, Mr.
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`Meyer explained in his rebuttal damages report that (1) Mr. Ratliff’s upward adjustment for a
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`purported “insurance benefit” is unsupported by evidence; (2) the basis for Mr. Ratliff’s damages
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`opinion—a third-party app with limited distribution—is unreliable; and (3) application of Mr.
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`Ratliff’s damages model produces unrealistic and nonsensical results. Ex. 5 [Meyer Rebuttal] ¶¶
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`6 The blue column on the right indicates
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`186-187; 192-193; 195-203; 220-223; 225-233. Seeking to cure these deficiencies, Mr. Ratliff (1)
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`provides new opinions; (2) relies on documents he admittedly did not consider prior to submitting
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`his report (see, e.g., Dkt. 250, Ex. C ¶ 7 (citing materials considered list provided over a month
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`after serving his report)); and (3) attempts to backfill his opinions to explain his nonsensical results.
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`But regardless of Mr. Ratliff’s motivations, there can be no dispute that the opinions were not
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`previously disclosed.7
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`B. Mr. Ratliff’s New Opinions Are Not Substantially Justified.
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`Mr. Ratliff cannot substantially justify his failure to provide timely opinions in his opening
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`damages report.
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`1.
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`The Information Regarding The
` Was Available To Mr. Ratliff At The Time He Submitted
`His Opening Damages Report.
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`As explained above, Apple produced the
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`. Apple
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`produced documents regarding
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`7 Mr. Ratliff’s new opinions also do not cure the fundamental flaws in his analysis.
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`. To do so, he generally asserts that fewer people have, over time, purchased
`insurance. Dkt. 250, Ex. C [Ratliff Decl.] ¶ 7. But Mr. Ratliff provides no evidence linking any
`decline in insurance purchases to the Accused Apps—let alone the allegedly patented features.
`Second, Mr. Ratliff speculates that the third-party app on which he bases his damages analysis and
`similar apps have a hundred thousand or even millions of downloads. Id. ¶¶ 8-9.
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` Third, Mr. Ratliff attempts to
`explain away the unrealistic and nonsensical results of his damages model. Dkt. 250, Ex. C [Ratliff
`Decl.] ¶¶ 10-11. Yet the distinctions Mr. Ratliff attempts to draw—which are not even clear—are
`irrelevant and Mr. Meyer’s criticisms stand. See Dkt. 231 at 1-2.
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` Thus, not only were all of the documents Mr. Ratliff cites to support his new opinions
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`available to him at the time he submitted his opening damages report on October 29, 2019, but
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` until over two months after he submitted his expert report (and over a
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`month after Mr. Meyer served his rebuttal report).8
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`2.
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`The Information Mr. Ratliff Relies On To Rehabilitate His Damages
`Analysis Was Available At The Time He Submitted His Opening
`Damages Report.
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`AGIS provides no justification—substantial or otherwise—for its late disclosure of the new
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`opinions, information, and materials disclosed in paragraphs 7-11 of his declaration. All of the
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`information Mr. Ratliff cites to purportedly cure the deficiencies in his analysis was available to
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`him at the time he submitted his opening damages report. “Rule 26(a) clearly requires that the
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`initial disclosure be complete and detailed.” Avance, 2006 WL 3484246, at *6 (citing Sierra Club,
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`Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 569 (5th Cir.1996)). Neither the Federal
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`Rules of Civil Procedure nor the Court’s local rules permit Mr. Ratliff to supplement his analysis
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`once its flaws are identified. It was incumbent upon Mr. Ratliff to provide all of his opinions—
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`and all of the bases therefor—in his opening expert report. Fed. R. Civ. P. 26(a)(2)(B). Having
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`failed to timely disclose Mr. Ratliff’s opinions, and having failed to avoid the Rule 37 mandatory
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`exclusion by showing that such failure was substantially justified or is harmless for the reasons
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`discussed in this brief, AGIS “is not allowed to use that information . . . to supply evidence on a
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`8 Furthermore,
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` Ex. 6 [Apple Invalidity Contentions] at 29 and 48-52 (highlighted).
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`7
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`Case 2:17-cv-00513-JRG Document 296 Filed 01/16/19 Page 12 of 15 PageID #: 19178
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`motion, at a hearing, or at a trial.” Fed. R. Civ. P. 37(c)(1); see also Buxton v. Lil’ Drug Store
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`Prod., Inc., No. 2:02-cv-178KS, 2007 WL 2254492, at *5 (S.D. Miss. Aug. 1, 2007), aff’d, 294 F.
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`App’x 92 (5th Cir. 2008) (“Courts have similarly made it clear that supplemental expert reports
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`cannot be used to ‘fix’ problems in initial reports. . . . ‘District judges have the power to control
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`their dockets by refusing to give ineffective litigants a second chance to develop their case.’”)
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`(quoting Reliance Ins. Co. v. Louisiana Land & Exploration Co., 110 F.3d 253, 258 (5th Cir.
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`1997)).
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`C. Mr. Ratliff’s Failure To Include His New Opinions In His Opening Damages
`Report Is Not Harmless At Least Because It Deprived Apple Of The
`Opportunity To Respond.
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`This district has recognized that it would be “unfair and prejudicial” to allow “the
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`introduction of new information . . . for use in the Court's consideration of the parties' Daubert
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`motions.” Avance, 2006 WL 3484246, at *7 (emphasis in original). Similarly, it would be unfair
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`and prejudicial to allow AGIS to present Mr. Ratliff’s untimely opinions at trial. Mr. Ratliff’s
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`untimely disclosure is not harmless for at least three reasons.
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`First, Apple was provided with a single opportunity to articulate its expert opinions on
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`damages, which Apple did according to the Court’s procedural schedule on November 19, 2018.
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`Allowing AGIS to belatedly add additional opinions to which Apple was unable to respond is
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`prejudicial to Apple.
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`Second, like in Avance, expert discovery has closed; and with it, Apple’s opportunity to
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`depose Mr. Ratliff on the newly disclosed opinions, information, and materials. Avance, 2006 WL
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`3484246, at *7.
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`Third, Apple has been laboring for over two months with the understanding that Mr.
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`Ratliff’s Rule 26 disclosure was, as was required, complete and detailed. Those preparations have
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`included a significant fraction of pre-trial disclosures and strategy. Allowing AGIS to now change
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`Mr. Ratliff’s opinions only two months before trial would prejudice Apple by allowing AGIS to
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`supplement its theories at the last moment.
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`V.
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`CONCLUSION
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`For the reasons set forth above, Apple respectfully requests that the Court grant its motion
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`to strike the untimely declaration of Mr. Alan Ratliff attached to Dkt. 250 as Exhibit C.
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`Dated: January 14, 2019
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`By: Respectfully submitted:
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`/s/ Melissa R. Smith
`Melissa Richards 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
`
`ATTORNEYS FOR DEFENDANT
`APPLE INC.
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`10
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`Case 2:17-cv-00513-JRG Document 296 Filed 01/16/19 Page 15 of 15 PageID #: 19181
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing document was filed electronically in
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`compliance with Local Rule CV-5(a). Plaintiff’s counsel of record were served with a true and
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`correct copy of the 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. Counsel for AGIS indicated that they are opposed to the relief sought in this
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`motion.
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`11
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