Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 1 of 18 PageID #: 20683
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`HUAWEI DEVICE USA INC. ET AL.,
`
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`Case No. 2:17-CV-0513-JRG
`(LEAD CASE)
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`APPLE, INC.,
`
`
`Defendant.
`
`§
`§
`§
`§
`
`
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S RESPONSE IN
`OPPOSITION TO APPLE INC.’S SEALED MOTION TO STRIKE THE
`UNTIMELY DECLARATION OF AGIS’S TECHNICAL EXPERT,
`JOSEPH C. MCALEXANDER, ATTACHED TO DKT. 262 AS EXHIBIT 4 (DKT. 311)
`
`
`
`Case No. 2:17-CV-0516-JRG
`(CONSOLIDATED CASE)
`
`JURY TRIAL DEMANDED
`
`
`
`

`

`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 2 of 18 PageID #: 20684
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`TABLE OF CONTENTS
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`Page(s)
`
`I.
`
`II.
`
`III.
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`IV.
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`INTRODUCTION .............................................................................................................. 1
`
`BACKGROUND FACTS ................................................................................................... 2
`
`LEGAL STANDARD ......................................................................................................... 2
`
`ARGUMENT ...................................................................................................................... 3
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`A.
`
`The McAlexander Declaration Does Not Disclose New Sources,
`Information, or Opinions ........................................................................................ 3
`
`1.
`
`2.
`
`3.
`
`Paragraphs 7 and 8 Do Not Contain New Opinions ................................... 3
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`Paragraph 9 Does Not Contain New Opinions ........................................... 6
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`Paragraph 10 Should Not Be Struck ........................................................... 7
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`B.
`
`The Statements in the McAlexander Declaration are Substantially
`Justified and Harmless ............................................................................................ 8
`
`V.
`
`CONCLUSION ................................................................................................................. 11
`
`
`
`i
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`

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`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 3 of 18 PageID #: 20685
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Allergan Sales, LLC v. Sandoz, Inc., et al.,
`2016 WL 7209798 (E.D. Tex. Sep. 30, 2016) .....................................................................3, 10
`
`Avance v. Kerr-McGee Chem. LLC,
`2006 WL 3484246 (E.D. Tex. Nov. 30, 2006) ......................................................................8, 9
`
`Browning v. City of Balch Springs,
`1997 WL 361632 (N.D. Tex. June 20, 1997) (unpublished) .....................................................8
`
`Core Wireless Licensing S.a.r.l. v. LG Electronics, Inc.,
`2016 WL 1090351 (E.D. Tex. Mar. 19, 2016) ....................................................................3, 10
`
`CQ, Inc. v. TXU Min. Co., L.P.,
`565 F.3d 268 (5th Cir. 2009) .................................................................................................3, 8
`
`GEODynamics, Inc. v. DynaEnergetics US, Inc.,
`2018 WL 4732419 (E.D. Tex. Sep. 30, 2018) ...........................................................................9
`
`Heidtman v. County of El Paso,
`171 F.3d 1038 (5th Cir. Tex. 1999) ...........................................................................................3
`
`Metaswitch Networks Ltd. v. Genband US LLC,
`2016 WL 874737 (E.D. Tex. Mar. 5, 2016) ..........................................................................3, 8
`
`Salazar v. HTC Corp.,
`2018 WL 4252362 (E.D. Tex. May 1, 2018) .............................................................................9
`
`Other Authorities
`
`Fed. R. Civ. P. 26(a)(2)(A) ..............................................................................................................2
`
`Fed. R. Civ. P. 26(a)(2)(C) ..............................................................................................................2
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`Fed. R. Civ. P. 26(a)(2)(D) ..............................................................................................................2
`
`Fed. R. Civ. P. 26(c)(1) ....................................................................................................................2
`
`
`
`ii
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`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 4 of 18 PageID #: 20686
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`I.
`
`INTRODUCTION
`
`Plaintiff AGIS Software Development LLC (“AGIS”) hereby submits its Response in
`
`Opposition to Defendant Apple Inc.’s (“Apple”) Motion to Strike the Untimely Declaration of
`
`AGIS’s Technical Expert, Joseph C. McAlexander, Attached to Dkt. 262 as Exhibit 4 (Dkt. 311).
`
`The McAlexander declaration submitted in connection with AGIS’s opposition to Apple’s
`
`summary judgment motion does not contain any new opinions, but only clarifies the conclusions
`
`and opinions in Mr. McAlexander’s expert report and deposition. Apple’s motion to strike
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`essentially reargues its summary judgment motion and focuses on the incorrect conclusion that
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`selecting “Turn Off Lost Mode” on a sender device clears the required responses on the recipient
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`device. As AGIS explained in its opposition to summary judgment, Apple’s conclusion is not
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`supported by its expert report and contradicts the testimony of its own witnesses. See Dkt. 262.
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`Here, Apple’s motion to strike relies on a misinterpretation of Mr. McAlexander’s report and
`
`declaration. In response to Apple’s summary judgment motion, Mr. McAlexander submitted his
`
`declaration to highlight the portions of both his report and Mr. Clark’s rebuttal report that reflect
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`Apple’s incorrect factual assumptions, revealing questions of fact to be decided by the jury.
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`There is no harm to Apple if the McAlexander declaration remains part of the record in this case
`
`as it merely repeats and clarifies the evidence and opinions found in Mr. McAlexander’s report.
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`Moreover, Apple has not sufficiently articulated how it is harmed by the three-page-long
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`McAlexander declaration. Apple had a full and fair opportunity when it submitted its summary
`
`judgment reply to rebut the allegedly new opinions with its own expert declaration and will have
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`the opportunity to cross-examine Mr. McAlexander at trial.
`
`For these reasons, Apple’s motion should be denied.
`
`
`
`

`

`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 5 of 18 PageID #: 20687
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`II.
`
`BACKGROUND FACTS
`
`The Infringement Expert Report of Joseph McAlexander was served on October 29, 2018
`
`in accordance with the Court’s Docket Control Order. The Expert Rebuttal Report of Paul C.
`
`Clark was served on November 19, 2018. On December 14, 2018, Apple filed its motion for
`
`summary judgment of non-infringement of U.S. Patent No. 8,213,970. Dkt. 228. AGIS filed its
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`opposition to that motion on January 4, 2019, along with a Declaration of Mr. McAlexander.
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`Dkts. 262, 262-5.
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`
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`
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`III. LEGAL STANDARD
`
`Fed. R. Civ. P. 26(a)(2)(A) requires that an expert’s report “shall contain a complete
`
`statement of all opinions expressed and the basis and reason therefore.” A party must disclose
`
`the opinions of its experts “at the times and in the sequence that the court orders.” Fed. R. Civ. P.
`
`26(a)(2)(D). Rule 26(a)(2)(C) requires that expert testimony that is intended to contradict or
`
`rebut evidence identified by another party must be done within thirty (30) days after disclosure
`
`by the other party. A “party that without substantial justification fails to disclose information
`
`required by Rule 26(a) or 26(e)(1) . . . is not, unless such failure is harmless, permitted to use as
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`evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.”
`
`Fed. R. Civ. P. 26(c)(1).
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`2
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`

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`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 6 of 18 PageID #: 20688
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`A party’s failure to timely disclose its expert opinions is excusable if the party shows that
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`such failure is harmless. Metaswitch Networks Ltd. v. Genband US LLC, 2016 WL 874737, *6-
`
`*7 (E.D. Tex. Mar. 5, 2016), citing Heidtman v. County of El Paso, 171 F.3d 1038, 1040 (5th
`
`Cir. Tex. 1999). To determine whether the failure was harmless, a court considers four factors:
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`“(1) [the party’s] explanation for its failure to disclose the evidence, (2) the importance of the
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`evidence, (3) the potential prejudice to [the opposing party] in allowing the evidence, and (4) the
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`availability of a continuance.” Id. at *6 citing CQ, Inc. v. TXU Min. Co., L.P., 565 F.3d 268, 280
`
`(5th Cir. 2009).
`
`A party’s late disclosure of expert opinion is harmless where the expert’s disclosure
`
`“adjusted his prior opinions without changing them.” Core Wireless Licensing S.a.r.l. v. LG
`
`Electronics, Inc., 2016 WL 1090351 at *3 (E.D. Tex. 2016). When a party “has been afforded a
`
`full and fair opportunity to rebut the allegedly undisclosed opinions of [an opposing expert] with
`
`its own expert declaration, it suffers no prejudice or harm.” Allergan Sales, LLC v. Sandoz, Inc.,
`
`et al., 2016 WL 7209798, at *2 (E.D. Tex. 2016).
`
`IV. ARGUMENT
`
`A.
`
`The McAlexander Declaration Does Not Disclose New Sources, Information,
`or Opinions
`
`1.
`
`Paragraphs 7 and 8 Do Not Contain New Opinions
`
`Apple argues that the McAlexander declaration contradicts his initial expert report and
`
`his deposition testimony regarding clearing the response list on a device by selecting the “Turn
`
`Off Lost Mode” command on another device. Dkt. 311 at 6. However, Apple mischaracterizes
`
`Mr. McAlexander’s report and declaration. In support of its motion, Apple relies on a single
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`citation from Mr. McAlexander’s deposition. Dkt. 311 at 7. However, this portion of
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`3
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`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 7 of 18 PageID #: 20689
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`Mr. McAlexander’s deposition was in response to a compound question and Mr. McAlexander’s
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`response does not contradict his declaration.
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`Paragraphs 7 and 8 of Mr. McAlexander’s declaration first cite Dr. Clark’s expert report,
`
`and the test performed by Dr. Clark––a test that was only disclosed for the first time in Apple’s
`
`noninfringement report, despite AGIS’s interrogatories seeking this very information. See Ex. D
`
`[Apple’s response to Interrogatory No. 6].
`
`
`
`addressing Dr. Clark’s misleading report, Mr. McAlexander’s declaration does not introduce any
`
`new opinions regarding the entry of a passcode;
`
` In
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`Accordingly,
`
`Mr. McAlexander’s statement regarding the “Turn Off Lost Mode” button cannot be new
`
`opinion.
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`Apple argues that Mr. McAlexander in his declaration “opines for the first time that
`
`selecting ‘Turn Off Lost Mode’ does not clear the ‘response list’ because ‘a passcode must be
`
`entered to clear the display, regardless of whether ‘Turn Off Lost Mode’ was utilized.” Dkt. 311
`
`at 7. However, this information was in Mr. McAlexander’s initial report. For example,
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`4
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`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 8 of 18 PageID #: 20690
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`Regarding the purported “additional testing,” Mr. McAlexander’s statements in his
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`declaration merely confirm his opinion expressed in his original report,
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`The steps performed start with the process set forth in Mr. McAlexander’s infringement
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`charts then are followed by the “Turn Off Lost Mode” functionality used in Dr. Clark’s report.
`
`
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`
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`Apple also misapplies Mr. McAlexander’s deposition testimony. Mr. McAlexander was
`
`asked at his deposition,
`
`. This compound
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`question was misleading at best. Apple’s attorney asked the question from the point of view of
`
`the sender,
`
`.
`
`While Mr. McAlexander correctly pointed out the sequence of steps from the perspective of the
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`sender device, Mr. McAlexander was not asked whether any additional steps would be required
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`from the perspective of the recipient device in order to unlock and clear the device, returning
`
`5
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`

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`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 9 of 18 PageID #: 20691
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`control to the user.
`
` Accordingly,
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`Mr. McAlexander’s deposition testimony is also consistent with his declaration and report.
`
`2.
`
`Paragraph 9 Does Not Contain New Opinions
`
`Apple incorrectly asserts that “Mr. McAlexander provides the new opinion that the ‘Turn
`
`Off Lost Mode’ ‘functionality also constitutes equivalent infringement.” Dkt. 311 at 8. Apple
`
`misinterprets the McAlexander declaration. Mr. McAlexander already set forth his opinions
`
`regarding literal infringement, 112(6) literal equivalents, and doctrine of equivalents in his expert
`
`report. Paragraph 9 of the McAlexander declaration does not state that “Turn Off Lost Mode” is
`
`a feature that itself satisfies the claim. Instead, Mr. McAlexander rebuts Apple’s contention that
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`the “Turn Off Lost Mode” feature precludes infringement.
`
`
`
` Accordingly, this paragraph does not constitute a new
`
`opinion.
`
`As Apple admits, A
`
`. Moreover,
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` Thus, paragraph 9 simply repeats what is in Mr. McAlexander’s report -
`
`6
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`

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`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 10 of 18 PageID #: 20692
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` Accordingly,
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`paragraph 9 does not disclose a new opinion.
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`3.
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`Paragraph 10 Should Not Be Struck
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`Paragraph 10 references Mr. McAlexander’s review of the prosecution history and the
`
`prior art references cited therein. Dkt. 311-1 at ¶¶84-89. Mr. McAlexander’s declaration merely
`
`points out passages in the known prior art and prosecution history. Moreover, these passages
`
`were cited in Mr. McAlexander’s declaration in response to an argument raised by Apple for the
`
`first time in its motion for summary judgment.
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`As Apple admits, the determination of whether an alleged equivalent was surrendered
`
`during prosecution is a legal issue decided by the Court. Dkt. 311 at 10. Thus, there is no harm
`
`to Apple by the inclusion in Mr. McAlexander’s declaration of a summary of known prior art
`
`references and prosecution history of the patent. Moreover, Apple uses its motion to strike to
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`provide its own analysis of the prosecution history, eliminating any alleged prejudice. Dkt. 311
`
`at 10-11.
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`Additionally, Apple attempts to undermine Mr. McAlexander’s declaration by pointing
`
`out alleged inconsistencies in AGIS’s positions. More specifically, Apple identifies portions of
`
`AGIS’s infringement contentions as allegedly conflicting with this paragraph of Mr.
`
`McAlexander’s declaration. However, Apple’s argument in its motion is logically flawed. At
`
`summary judgment, Apple essentially argues that the claims include a negative limitation – i.e.
`
`that the forced message cannot be remotely disabled. Contrary to Apple’s assertions, AGIS’s
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`infringement contentions expressly address this position, and indicate that remotely disabling a
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`forced message does not prevent infringement. Indeed, AGIS set forth in its contentions that
`
`7
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`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 11 of 18 PageID #: 20693
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` Accordingly, Apple has not identified anything in the record that
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`contradicts AGIS’s equivalents position.
`
`B.
`
`The Statements in the McAlexander Declaration are Substantially Justified
`and Harmless
`
`Even if the McAlexander declaration is somehow construed as a supplemental expert
`
`report, because the purported failure to disclose those opinions was harmless, the Court should
`
`not strike the McAlexander declaration. The four factors relied upon by courts in this District to
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`decide whether to strike an untimely expert report strongly support this result. See Metaswitch
`
`Networks Ltd. v. Genband US LLC, 2016 WL 874737, *6-*7 (E.D. Tex. 2016) (declining to
`
`strike plaintiff’s expert report because defendant would suffer little prejudice); CQ, Inc., L.P.,
`
`565 F.3d at 280; Avance v. Kerr-McGee Chem. LLC, No. 5:04CV209, 2006 WL 3484246, at *6
`
`(E.D. Tex. Nov. 30, 2006); Browning v. City of Balch Springs, 1997 WL 361632, *4 (N.D. Tex.
`
`June 20, 1997) (unpublished).1
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`As to the first factor, the party’s explanation for its failure to disclose, AGIS has
`
`explained that there was no failure to disclose as all the opinions in the McAlexander declaration
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`were either previously disclosed to Apple or in direct response to evidence or testimony
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`disclosed by Apple at summary judgment and to which AGIS had not previously been afforded a
`
`response. The cases cited by Apple are inapposite. For example, in Avance, the plaintiff
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`attempted to submit affidavits in lieu of live testimony at a Daubert hearing that were very
`
`different from his earlier opinions. One of the affidavits contained new sources, a new
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`methodology and changed the expert’s conclusions; a second contained new sources and
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`justifications; a third relied on sources the expert had previously expressly disavowed; and a
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`1 Mr. McAlexander’s Declaration was served on January 4, 2019, 46 days after Mr. Meyer’s report was served on
`November 19, 2018.
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`8
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`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 12 of 18 PageID #: 20694
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`fourth contained never before disclosed sources. Id. at *2-5. The McAlexander declaration does
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`not contain any new methodologies, tests or conclusions, and any additional sources cited are
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`either publicly available or those relied on by Apple’s own expert. See supra IV.A.1, 3.
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`Additionally, Salazar v. HTC Corp., No. 2:16-cv-01096-JRG-RSP, 2018 WL 4252362 (E.D.
`
`Tex. May 1, 2018) is inapposite. In Salazar, the plaintiff’s expert report omitted analysis of the
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`Peel Smart Remote application installed on the One M9 accused smartphones. Id. at *1. The
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`plaintiff then submitted an expert declaration with a new infringement theory for the One M9,
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`and the court held that the declaration was not “simply elaboration to an existing conclusion.” Id.
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`at *2. The Court explained that “[w]hile new documentary or technical evidence may sometimes
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`warrant modifying an infringement theory midstream, the theory should generally not change.”
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`Id. The McAlexander declaration does not change AGIS’s infringement theory and only
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`elaborates on existing conclusions, and thus Salazar does not apply. Further, AGIS had asked
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`Apple for its positions on non-infringement in interrogatories during the discovery period. See
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`Ex. D. Apple’s responses to AGIS’s interrogatories did not include any of the detail regarding
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`“Turn Off Lost Mode” or the doctrine of equivalents, even though these theories were disclosed
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`in AGIS’s infringement contentions early in the case. AGIS should at least be afforded the
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`opportunity to respond to Apple’s new theories advanced at summary judgment. GEODynamics,
`
`Inc. v. DynaEnergetics US, Inc., 2018 WL 4732419 (E.D. Tex. Sep. 30, 2018) (denying motion
`
`to strike untimely expert report because plaintiff had “a sufficient justification since [plaintiff’s
`
`expert] did not see the need for an analysis of pure nickel and pure aluminum until [defendant’s]
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`criticisms were presented.)
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`With respect to the second factor, the importance of the disclosure, even though all of the
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`disputed portions of the McAlexander Declaration present no new theories or conclusions, they
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`9
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`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 13 of 18 PageID #: 20695
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`relate to points affecting infringement by the Apple products; more specifically, Apple’s theory
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`of non-infringement based on the remote “Turn Off Lost Mode” command. Thus,
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`Mr. McAlexander’s declaration, which is focused on that command and Apple’s evidentiary
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`failures, is important. Additionally, Apple bases its motion for summary judgment on the
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`alleged test performed by its expert Dr. Clark. See Dkt. 228 at 8; Dkt. 228-10 ¶¶427-428. Thus,
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`evidence pertaining to the test Dr. Clark performed, and the veracity of that test, are admittedly
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`important to Apple.
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`With respect to the question of prejudice, Apple asserts that it “was unable to respond”
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`and had no “opportunity to depose” Mr. McAlexander on the statements in his declaration. Dkt.
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`311 at 14. However, Apple had an opportunity to respond to the points raised in
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`Mr. McAlexander’s declaration in its reply papers on the summary judgment motion. Apple
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`“has been afforded a full and fair opportunity to rebut the allegedly undisclosed opinions of
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`[Mr. McAlexander] with its own expert declaration, [and as a result] it suffers no prejudice or
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`harm.” Allergan Sales, LLC v. Sandoz, Inc., et al., 2016 WL 7209798, at *2 (E.D. Tex. 2016).
`
`As to the argument that Apple will not have an opportunity to depose Mr. McAlexander
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`concerning the topics in his declaration, Apple, in conferring on the instant motion, did not
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`indicate any desire to take Mr. McAlexander’s deposition with regard to the declaration.2 Apple
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`asserts that it would be prejudiced if the Court allowed “AGIS to now change
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`Mr. McAlexander’s opinions only two months before trial.” Dkt. 311 at 15. However, Apple has
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`not pointed out any changed opinions of Mr. McAlexander and, as discussed in this brief, the
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`declaration contains no new opinions. A party’s late disclosure of expert opinion is harmless
`
`where the expert’s disclosure “adjusted his prior opinions without changing them.” Core
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`2 AGIS would make Mr. McAlexander available for a deposition limited to the topics in his declaration in order
`to resolve this dispute.
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`10
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`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 14 of 18 PageID #: 20696
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`Wireless Licensing S.a.r.l. v. LG Electronics, Inc., 2016 WL 1090351 at *3 (E.D. Tex. 2016).
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`Further, Apple argues that it would be prejudiced because it prepared summary judgement
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`motions and trial strategy. However, Apple’s summary judgment motions were based on
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`disputed facts, and Apple does not identify how its trial strategy would be affected–at the very
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`least AGIS would be permitted to cross examine Dr. Clark to reveal the inaccuracies in his test
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`and Apple will need to prepare to address this issue. Thus, any potential shift in “trial strategy”
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`is minimal. Accordingly, Apple has not identified any specific prejudice caused by
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`Mr. McAlexander’s declaration.
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`As to the final factor, while Apple has not argued that a continuance could not remedy
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`the supposed prejudice it suffered, a continuance is unnecessary here. The McAlexander
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`declaration was submitted more than two months prior to trial. Joint pre-trial disclosures were
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`not due to be filed until January 28, 2019, giving Apple almost a full month after receiving the
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`McAlexander declaration to adjust its pre-trial disclosures to respond to it. See Dkt. 333. The
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`declaration is roughly three pages long and there is simply no need for a continuance to address
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`the issues raised in this short declaration. This factor, like the others, weighs against striking the
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`McAlexander declaration.
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`V.
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`CONCLUSION
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`For all of the foregoing reasons, AGIS respectfully requests that the Court deny Apple’s
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`Motion to Strike the Untimely Declaration of AGIS’s Technical Expert, Joseph C. McAlexander,
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`Attached to Dkt. 262 as Exhibit 4 (Dkt. 311) in its entirety.
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`Dated: February 1, 2019
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`BROWN RUDNICK LLP
`
` /s/ Alfred R. Fabricant
`
`Alfred R. Fabricant
`NY Bar No. 2219392
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`11
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`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 15 of 18 PageID #: 20697
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`Lawrence C. Drucker
`NY Bar No. 2303089
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`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 16 of 18 PageID #: 20698
`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 16 of 18 PageID #: 20698
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`ATTORNEYS FOR PLAINTIFF, AGIS
`ATTORNEYS FOR PLAINTIFF, AGIS
`SOFTWARE DEVELOPMENT LLC
`SOFTWARE DEVELOPMENT LLC
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`13
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`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 17 of 18 PageID #: 20699
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`CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL
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`The undersigned certifies that the foregoing document is authorized to be filed under seal
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`pursuant to the Protective Order entered in this case.
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`/s/ Alfred R. Fabricant
` Alfred R. Fabricant
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`Case 2:17-cv-00513-JRG Document 340 Filed 02/06/19 Page 18 of 18 PageID #: 20700
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on February 1, 2019, all counsel of record who are
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`deemed to have consented to electronic service are being served with a copy of this document via
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`the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Alfred R. Fabricant
` Alfred R. Fabricant
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