Case 2:21-cv-00040-JRG Document 181 Filed 12/30/21 Page 1 of 8 PageID #: 9123
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CASE NO. 2:21-cv-00040-JRG
`(Lead Case)
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`JURY TRIAL DEMANDED
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`CASE NO. 2:21-cv-00041-JRG
`(Member Case)
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`JURY TRIAL DEMANDED
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`GESTURE TECHNOLOGY
`PARTNERS, LLC,
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`Plaintiff
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`v.
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`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
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`Defendants.
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`GESTURE TECHNOLOGY
`PARTNERS, LLC,
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`Plaintiff
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`v.
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
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`SAMSUNG DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO STRIKE
`SUPPLEMENTAL EXPERT REPORTS OF PLAINTIFF’S EXPERTS DAVID KENNEDY
`AND ANDREAS GROEHN 
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`

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`Case 2:21-cv-00040-JRG Document 181 Filed 12/30/21 Page 2 of 8 PageID #: 9124
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`I.
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`INTRODUCTION
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`The pertinent facts are unrebutted: (1) GTP’s experts had included in their draft opening
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`reports the same information GTP attempts to belatedly add in supplemental reports; (2) GTP’s
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`experts made the tactical decision to remove this information from their opening reports in the
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`hours before they were served; (3) only after Samsung served its rebuttal reports did GTP and its
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`experts decide they wanted to provide supplemental reports; (4) GTP then waited nearly a full
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`week to serve supplemental reports, five weeks after serving their opening reports on the Court
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`ordered deadline; and (5) GTP never sought the Court’s leave to serve the supplemental reports.
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`GTP’s claim that a “simple miscommunication” between the experts requires the supplemental
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`reports mischaracterizes the deliberate, tactical decision made by GTP and its experts to remove
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`the “facial recognition camera control feature” analysis from the opening reports. With expert
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`discovery already closed for nearly a month, Daubert motion briefing nearly complete, and trial
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`fast approaching, GTP provides no compelling basis for the Court to embrace GTP’s effort to
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`reverse its deliberate, tactical decision and allow the supplementation.
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`II.
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`ARGUMENT
`A.
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`GTP Does Not Justify its Delay in Serving the Supplemental Reports
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`GTP argues that in the hours before service of Mr. Kennedy’s and Dr. Groehn’s opening
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`reports
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`prompted Mr. Kennedy and Dr. Groehn
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`to exclude portions of their already-prepared reports on the assumption that the “facial recognition
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`camera control features” do not infringe. Dkt. No. 160 at 4. Claiming shortness of time, however,
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`does not excuse GTP’s five-week delay. GTP is the Plaintiff and should be expected to understand
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`long before its opening reports were due what features it was accusing of infringement. Even if
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`-1-
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`Case 2:21-cv-00040-JRG Document 181 Filed 12/30/21 Page 3 of 8 PageID #: 9125
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`there were a “miscommunication,” GTP’s counsel should have been aware of the contents of the
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`infringement and damages reports. If counsel neglected to review the reports for accuracy and
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`consistency, that should be no excuse. Further, if GTP believed it needed additional time for its
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`experts to complete their opening reports, it could have sought another extension. GTP never did
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`so. Samsung had already consented to, and the Court had granted, GTP’s request to extend the
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`opening report deadline by five days. See Dkt. No. 96–1. Samsung has agreed to every extension
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`GTP has requested thus far. Moreover, since the experts had allegedly already completed their
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`analysis of the “facial recognition camera control features,” they could have left it in their opening
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`reports and later provided notice of withdrawal, rather than blindsiding Samsung nearly a week
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`after its rebuttal reports were served and the night before Dr. Groehn’s deposition.
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`GTP does not explain why it took over one month to discover this “miscommunication” or
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`what—specifically—that miscommunication was. GTP thought to supplement the opening reports
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`only after Mr. Kennedy reviewed Dr. Ugone’s November 22 rebuttal report. See Ex. 4 at 21:5–13
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` (emphasis added)).
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`Notably absent from GTP’s opposition is any representation as to when GTP’s counsel discovered
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`this “miscommunication.” If counsel failed to note withdrawal of the “facial recognition camera
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`control features” from the draft opening reports until Mr. Kennedy informed them, GTP does not
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`explain why it should be excused for neglecting to give the opening reports even a cursory review
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`before they were finalized or at any time over the month after they were served. The intentional
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`decision to remove the “facial recognition camera control features” may have been a poor one in
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`hindsight, but that is not adequate reason for the Court to allow GTP’s untimely and prejudicial
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`supplementation.
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`-2-
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`Case 2:21-cv-00040-JRG Document 181 Filed 12/30/21 Page 4 of 8 PageID #: 9126
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`Lastly, GTP provides no explanation for why it took almost a full week after discovering
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`this “miscommunication” to serve supplemental reports containing the information its experts had
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`already included in, but then deliberately removed from, their opening reports. See Ex. 4 at 21:15-
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`18 (“
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`Decl. at ¶ 9 (“
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`” (emphasis added)); Williams
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`.”(emphasis added)). In fact, GTP waited until less than twelve
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`hours before Dr. Groehn’s deposition to serve the supplemental reports. GTP’s actions here are a
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`prime example of a party failing to exercise reasonable diligence, and the Court should not embrace
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`GTP’s effort to characterize the situation differently.
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`B.
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`Any Potential Importance of the Supplemental Opinions Is Outweighed by
`GTP’s Decision Not to Include the Information in Its Opening Reports
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`GTP’s counsel supervised the work of its three experts––Mr. Occhiogrosso, Mr. Kennedy,
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`and Dr. Groehn––in preparing their opening reports. GTP concedes Mr. Kennedy and Dr. Groehn
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`knew their “supplemental” opinions regarding the “facial recognition camera control features”
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`well before their opening expert reports were due; provided the opinions in drafts of their reports;
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`then made a deliberate decision to remove the opinions from their reports before finalizing them;
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`and five weeks later reversed course again and decided to include the exact same opinions in their
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`supplemental reports. GTP and/or its experts made a tactical choice to remove the “facial
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`recognition camera control feature” analysis from their opening reports. Estech Sys., Inc. v. Target
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`Corp.is directly on point. As here, the party knew the supplemental information “well before
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`opening expert reports were due and made the conscious decision not to include” those theories.
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`No. 2:20-cv-00123-JRG-RSP, 2021 U.S. Dist. LEXIS 135438, at *11 (E.D. Tex. July 21, 2021).
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`As in Estech, any importance of GTP’s belated attempted supplementation is strongly undercut by
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`GTP’s tactical decision to remove the “supplemental” opinions from the opening reports.
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`-3-
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`Case 2:21-cv-00040-JRG Document 181 Filed 12/30/21 Page 5 of 8 PageID #: 9127
`RESTRICTED – ATTORNEYS’ EYES ONLY
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`C.
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`Samsung Would Suffer Unfair Prejudice
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`GTP makes no mention of the factors considered in Estech when claiming that Samsung
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`would not suffer prejudice as a result of GTP’s belated supplementation. Like the defendant in
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`Estech, however, Samsung would need to re-open expert discovery, prepare for and take further
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`depositions of Mr. Kennedy and Dr. Groehn, prepare a supplemental rebuttal report by Dr. Ugone,
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`potentially prepare for and defend a deposition of Dr. Ugone, and prepare and brief supplemental
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`Daubert motions challenging the supplemental opinions, with the Court’s leave. Estech, 2021 U.S.
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`Dist. LEXIS 135438, at *10. These are significant, substantive tasks that Samsung should not
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`have to undertake at this very late stage of the case.1
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`GTP argues that
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` Dkt. No. 160 at 5. Yet, the supplemental reports (1) introduce an additional patent not
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`considered in Mr. Kennedy’s opening report; (2) more than double the total number of Accused
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`Products at issue; (3) more than double the number of allegedly infringing features; and (4) claim
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`$25 million in additional damages (nearly a 50% increase from the previous damages estimation).
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`The supplemental reports themselves refute GTP’s argument that they do not introduce new
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`theories. If allowed, they will dramatically expand the scope of the case with pretrial activities
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`underway and trial fast approaching.
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`GTP’s citation to Navico is also unavailing. As discussed infra, there the party properly
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`moved to supplement the expert’s report. Navico Inc. v. Garmin Int'l, Inc., No. 2:16-CV-00190-
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`JRG-RSP, 2017 U.S. Dist. LEXIS 103113 (E.D. Tex. July 4, 2017). Further, the expert had never
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`1 If GTP’s supplemental reports are not struck, Samsung respectfully submits that a continuance
`of the March 7, 2022 trial date would be necessary and appropriate. This factor further weighs in
`favor of striking the supplemental reports.
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`-4-
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`Case 2:21-cv-00040-JRG Document 181 Filed 12/30/21 Page 6 of 8 PageID #: 9128
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`considered the opinion the party was seeking to introduce in the supplemental report. Id. at *5
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`(“While Rose and Garmin arguably should have anticipated the issue, this is not a case where they
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`had considered and yet intentionally ignored it.”). Here, in contrast, not only had GTP’s experts
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`considered the information GTP now seeks to add by way of the supplemental reports, but they
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`made the deliberate decision to remove that information from their opening reports.
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`D.
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`GTP Did Not Seek Leave to Serve the Supplemental Expert Reports
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`A party wishing to provide an expert opinion after the deadline set by the Court must seek
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`leave of Court. See Albritton v. Acclarent, Inc., No. 3:16-cv-03340-M, 2020 WL 11627275, at
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`*15 (N.D. Tex. Feb. 28, 2020) (holding that “‘a party wishing to provide a sur-rebuttal [expert
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`report] must first seek leave of Court’” (alteration in original) (citation omitted)). Here, GTP
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`unilaterally served its untimely supplemental reports, over Samsung’s objections, without
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`obtaining or even seeking leave. This is a flagrant abuse of the expert discovery process and
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`independently merits striking the supplemental reports. GTP’s citation to Navico is inapposite. In
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`that case, “Garmin served the Supplemental Report on May 26, 2017—the close of expert
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`discovery and four days after Rose’s deposition. Navico objected, so Garmin now seeks leave
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`….” Navico, 2017 U.S. Dist. LEXIS 103113, at *3 (emphasis added). In Navico, the Court did
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`not consider a Motion to Strike, but rather “Garmin’s Opposed Motion for Leave . . . .” Id. at 6
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`(emphasis added). As GTP has never sought leave to serve the supplemental reports, much less
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`properly obtained it, they should be struck in their entirety. See Kumar v. Frisco Indep. Sch. Dist.,
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`476 F. Supp. 3d 439, 468 (E.D. Tex. 2020) (“Any filing after said date . . . required leave of court.
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`. . . Defendants did not seek leave of court . . . Morrison's Supplemental Expert Report is
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`consequently untimely).
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`-5-
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`Case 2:21-cv-00040-JRG Document 181 Filed 12/30/21 Page 7 of 8 PageID #: 9129
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`DATED: December 28, 2021
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`Respectfully submitted,
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`By: /s/ Christopher W. Kennerly
`Christopher W. Kennerly (TX Bar No. 00795077)
`chriskennerly@paulhastings.com
`Radhesh Devendran (pro hac vice)
`radheshdevendran@paulhastings.com
`Boris S. Lubarsky (pro hac vice)
`borislubarsky@paulhastings.com
`David M. Fox (pro hac vice)
`davidfox@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1900
`
`Allan M. Soobert
`allansoobert@paulhastings.com
`PAUL HASTINGS LLP
`2050 M Street NW
`Washington, D.C. 20036
`Telephone: 202-551-1700
`Facsimile: 202-551-1705
`
`Elizabeth L. Brann
`elizabethbrann@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`Telephone: (858) 458-3000
`Facsimile: (858) 458-3005
`
`Robert Laurenzi
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: (212) 318-6000
`Facsimile: (212) 319-4090
`
`Melissa R. Smith (TX Bar No. 24001351)
`GILLAM & SMITH, LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
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`-6-
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`Case 2:21-cv-00040-JRG Document 181 Filed 12/30/21 Page 8 of 8 PageID #: 9130
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`melissa@gillamsmithlaw.com
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`Attorneys for Defendants Samsung Electronics
`Co., Ltd and Samsung Electronics America, Inc.
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`CERTIFICATE OF SERVICE
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`I certify that a true and correct copy of the foregoing document was filed electronically in
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`compliance with Local Rule CV-5 on December 28, 2021. As of this date, all counsel of record
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`had consented to electronic service and are being served with a copy of this document through the
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`Court’s CM/ECF system under Local Rule CV-5(a)(3)(A) and by email.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`CERTIFICATE OF AUTHORIZATION TO SEAL
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`I hereby certify that under Local Rule CV-5(a)(7), the foregoing document is filed under
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`seal pursuant to the Court’s Protective Order entered in this matter.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-7-
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