Case 2:17-cv-00514-JRG Document 137 Filed 01/29/19 Page 1 of 12 PageID #: 9754
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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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`HTC CORPORATION,
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`Defendant.
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`LG ELECTRONICS INC.,
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`Defendant.
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`Case No. 2:17-CV-0514-JRG
`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`Case No. 2:17-CV-0515-JRG
`(CONSOLIDATED CASE)
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`JURY TRIAL DEMANDED
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`AGIS SOFTWARE DEVELOPMENT LLC’S OPPOSED MOTION
`TO STRIKE THE JANUARY 11, 2019 EXPERT REPORT OF EDWARD R. TITTEL
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`Case 2:17-cv-00514-JRG Document 137 Filed 01/29/19 Page 2 of 12 PageID #: 9755
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`I.
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`INTRODUCTION
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`Plaintiff AGIS Software Development LLC (“AGIS”) submits this Motion to Strike the
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`January 11, 2019 Expert Report of Edward R. Tittel (“Tittel Report”) relating to untimely
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`discovery and witnesses. The Tittel Report includes testimony based on discussions with
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`previously-undisclosed witnesses,
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`, who were not identified as
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`witnesses during the discovery period. These witnesses appeared for the first time over a month
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`after the close of fact discovery. Mr. Tittel also bases his testimony on non-produced source
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`code printouts in violation of the Court’s discovery order which requires LG to have produced all
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`relevant information related to its defenses and all documents received from third parties such as
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`Google. Dkt. 118 at 3-4 and 9. LG did not identify any Google source code printouts in its
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`discovery response to AGIS’s Interrogatory Request No. 8 seeking detailed non-infringement
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`contentions. LG could have and should have notified AGIS about any source code printouts
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`produced by Google and any other discovery from Google. Because LG failed to abide by the
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`Court’s discovery order ––and failed to move for leave to produce untimely discovery and
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`identify late witnesses––AGIS respectfully moves the Court to strike the portions including and
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`related to the untimely discovery.
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`II.
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`FACTUAL BACKGROUND
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`On August 29, 2018, AGIS served deposition and document subpoenas on Google
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`requesting, among other things, source code for (1) Google Maps’ features including location
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`sharing, dropping a pin, sending a message or link with locations or pins to another user , and
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`push notification features (2) Find My Device (and its predecessor Android Device Manager)
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`application; (3) the use of Google Identifiers such as Google and Gmail accounts in Find My
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`Device; and (4) the lock mode functionality of Find My Device and Android Device Manager.
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`Ex. A at 9-10. Proper notice was provided to LG of the subpoenas to Google. Id. at 1.
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`Case 2:17-cv-00514-JRG Document 137 Filed 01/29/19 Page 3 of 12 PageID #: 9756
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`is restrictive; it limits reviewers’ requests for printouts by number of total pages, number of
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`consecutive pages, number of copies, and even the number of lines to be included for each page.
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` The protective order in this case
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`Dkt. 119 at 14-16.
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`On December 14, 2018, AGIS served the Opening Expert Report of Mr. Joseph
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`McAlexander regarding infringement of the patents-in-suit by LG (“McAlexander Report”). On
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`Case 2:17-cv-00514-JRG Document 137 Filed 01/29/19 Page 4 of 12 PageID #: 9757
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`January 11, 2019, LG served its rebuttal expert report, the Tittel Report. Ex. E. Nearly a month
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`after the McAlexander Report, and virtually concurrently with the Tittel Report,
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` LG did not
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`notify AGIS about any communication with Google. LG did not notify AGIS about any
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`discovery or productions from Google to LG.
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`AGIS served Interrogatory Request No. 8 on January 8, 2018 which specifically
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`requested LG’s detailed non-infringement contentions, and
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`Case 2:17-cv-00514-JRG Document 137 Filed 01/29/19 Page 5 of 12 PageID #: 9758
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`Additionally, Mr. Tittel relies on facts discovered from two witnesses,
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` who were not disclosed by LG during the discovery period and remained
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`unidentified until service of the Tittel Report on January 11, 2019, over a month after the
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`December 7, 2018 close of discovery. LG could have and should have identified these witnesses
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`in any one of its supplemental initial disclosures on January 17, 2018, August 31, 2018,
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`November 14, 2018, and December 7, 2018 (the last day of discovery). Exs. K, L, M, N. Rather
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`than identify the witnesses during discovery, as required by the rules, the Tittel Report
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`surreptitiously advances testimony based on discussions with
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`LG did not move for leave to produce untimely disclosures or discovery. LG’s non-
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`compliance with the rules and failure to produce the untimely source code during discovery
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`prevented AGIS from amending its infringement contentions with the code and from providing
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`its expert, Mr. McAlexander, with the code for analysis and inclusion in his report.
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`––two applications which form the bases of AGIS’s infringement theories and were
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`accused in the complaint and asserted in AGIS’s November 28, 2017 infringement contentions––
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`is highly prejudicial to AGIS at this late stage. The testimony relating to the untimely code and
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`witnesses should be excluded from the Tittel Report, and LG should be precluded from relying
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`on the same.
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`III. LEGAL STANDARD
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`The Court’s discovery order requires that “[a] party receiving documents from a third
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`party will provide copies of those documents to each other party within 5 business days of
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`receiving those documents,” and that each party produce all documents, electronically stored
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`information, and tangible things in the possession, custody, or control of the party that are
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`Case 2:17-cv-00514-JRG Document 137 Filed 01/29/19 Page 6 of 12 PageID #: 9759
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`relevant to the pleaded claims or defenses involved in this action “without awaiting a discovery
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`request.” Dkt. 118 at 3-4 and 9.
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`If a party fails to provide information or identify a witness as required by Rule 26(a) or
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`(e), the party is not allowed to use that information or witness to supply evidence on a motion at
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`a hearing, or at a trial, unless the failure was substantially justified or is harmless. Fed. R. Civ. P.
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`37(c)(1). This Court has precluded the untimely discovery, and expert testimony based thereon,
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`that “could have, and should have, been produced prior to the close of discovery.” ContentGuard
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`Holdings, Inc. v. Amazon.com, Inc., No. 2:13-CV-1112-JRG, 2015 WL 6886957, at *2 (E.D.
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`Tex. Nov. 7, 2015) (granting motion to exclude portions of expert reports and testimony because
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`“the Court finds that Paragraphs 348–356, 367, 369–373, 380, 381, and 509 of Dr. Kelly’s report
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`must be stricken in view of Apple’s failure to produce the “correlation folders” for the iTunes
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`source code for Windows and for Mac within the prescribed discovery period.”)
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`IV. ARGUMENT
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`The Court should exclude references to and testimony based on untimely, non-produced
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`source code printouts, and LG should be precluded from relying on source code which was not
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`produced to AGIS during the discovery period.
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`Case 2:17-cv-00514-JRG Document 137 Filed 01/29/19 Page 7 of 12 PageID #: 9760
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`Ex. E at 101.
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` The untimely source code and any related
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`portions should be excluded from the Tittel Report. LG did not include the related non-
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`infringement theories for these undisclosed source code printouts in its interrogatory responses.
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`Ex. J. LG could have and should have produced the untimely source code printouts as relevant
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`discovery pursuant to the Court’s discovery order. Even if LG contends that the source code was
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`made available for inspection, LG had an obligation under the Court’s discovery order to
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`produce any source code documents received from third party Google produced under the
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`subpoena. Dkt. 118 at 3-4 and 9. LG cannot hide behind its business relationship with Google, a
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`supplier of the source code, to deny its obligations.
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`Additionally, the portions of the Tittel Report that rely on the discussions with two non-
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`disclosed witnesses,
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` should be stricken from the report.
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` LG failed to disclose
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`both of these individuals until the service date of the Tittel Report––over a full month after the
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`end of the discovery period. LG has known about AGIS’s allegations against the Google Maps
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`and Find My Device applications since the complaint and AGIS’s November 28, 2017
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`infringement contentions. During this period, LG supplemented its initial disclosures at least
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`four times, including a supplement on the last day of discovery on December 7, 2018. Despite
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`knowing AGIS’s detailed infringement contentions for over a year, LG failed to identify the
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`witnesses until long after the close of discovery. LG could have and should have disclosed its
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`Case 2:17-cv-00514-JRG Document 137 Filed 01/29/19 Page 8 of 12 PageID #: 9761
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`witnesses during the discovery period. The Court should strike paragraphs 137-146, 150, 151,
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`163, 167, and 228, and any other opinions that are derived from discussions with the untimely
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`witnesses.
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`V.
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`CONCLUSION
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`For the foregoing reasons, AGIS respectfully requests that the Court grant AGIS’s
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`motion to strike the January 11, 2019 Expert Report of Edward R. Tittel.
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`Dated: January 25, 2019
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`BROWN RUDNICK LLP
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` /s/ Alfred R. Fabricant
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: afabricant@brownrudnick.com
`Lawrence C. Drucker
`NY Bar No. 2303089
`Email: ldrucker@brownrudnick.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@brownrudnick.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@brownrudnick.com
`Alessandra C. Messing
`NY Bar No. 5040019
`Email: amessing@brownrudnick.com
`Shahar Harel
`NY Bar No. 4573192
`Email: sharel@brownrudnick.com
`John A. Rubino
`NY Bar No. 5020797
`Email: jrubino@brownrudnick.com
`Enrique W. Iturralde
`NY Bar No. 5526280
`Email: eiturralde@brownrudnick.com
`Timothy J. Rousseau
`NY Bar No. 4698742
`Email: trousseau@brownrudnick.com
`Daniel J. Shea, Jr.
`NY Bar No. 5430558
`Email: dshea@brownrudnick.com
`Justine Minseon Park
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`Case 2:17-cv-00514-JRG Document 137 Filed 01/29/19 Page 9 of 12 PageID #: 9762
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`NY Bar No. 5604483
`Email: apark@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
`
`Samuel F. Baxter
`Texas State Bar No. 01938000
`Email: sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`Texas State Bar No. 24012906
`Email: jtruelove@mckoolsmith.com
`McKOOL SMITH, P.C.
`104 East Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: 903-923-9000
`Facsimile: 903-923-9099
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`ATTORNEYS FOR PLAINTIFF, AGIS
`SOFTWARE DEVELOPMENT LLC
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`Case 2:17-cv-00514-JRG Document 137 Filed 01/29/19 Page 10 of 12 PageID #: 9763
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`CERTIFICATE OF CONFERENCE
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`I certify that on January 24, 2019, lead and local counsel for AGIS (Alfred R. Fabricant,
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`Vincent J. Rubino, and Jennifer Truelove) and for LG (Michael Berta, Justin Chi, and Mark
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`Mann) conferred via telephone in compliance with L.R. CV-7(h-i) regarding the issues presented
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`in the foregoing Motion. The Parties still were unable to resolve the issues and are at an impasse
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`regarding the relief sought. The Court assistance is thus necessary. LG opposes this Motion.
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`/s/ Alfred R. Fabricant
` Alfred R. Fabricant
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`Case 2:17-cv-00514-JRG Document 137 Filed 01/29/19 Page 11 of 12 PageID #: 9764
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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-00514-JRG Document 137 Filed 01/29/19 Page 12 of 12 PageID #: 9765
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on January 25, 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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