Case 6:12-cv-00799-JRG Document 263-1 Filed 01/26/15 Page 1 of 4 PageID #: 9471
`Case 6:12—cv—00799—JRG Document 263-1 Filed 01/26/15 Page 1 of 4 Page|D #: 9471
`
`EXHIBIT A
`
`EXHIBIT A
`
`

`
`Case 6:12-cv-00799-JRG Document 263-1 Filed 01/26/15 Page 2 of 4 PageID #: 9472
`
`DLA Piper LLP (US)
`1000 Louisiana Street, Suite 2800
`Houston, Texas 77002-5005
`www.dlapiper.com
`
`Claudia Wilson Frost
`claudia.frost@dlapiper.com
`T 713.425.8450
`F 713.300.6050
`
`January 26, 2015
`
`The Honorable Rodney Gilstrap
`U.S. District Court for the Eastern District of Texas
`211 W. Ferguson
`Tyler, Texas 75702
`
`Re:
`
`C.A. No. 6:12-cv-799-JRG; Invensys Systems, Inc. v. Emerson Electric Co., et al.
`
`Dear Judge Gilstrap:
`
`Invensys requests permission to file a motion to strike the Rule 26(a)(2)(C) expert
`disclosure of Bill Graber to the extent he seeks to offer opinions related to the accused
`flowmeters or the Coriolis flowmeter market before October 2013. Graber lacks personal
`knowledge on these topics, a requirement for an expert designated under Rule 26(a)(2)(C).
`
`I.
`
`Background
`
`On December 5, 2014, Defendants served Invensys with Graber’s Rule 26(a)(2)(C)
`expert disclosure in which he offers opinions about the U.S. Coriolis flowmeter market and
`Defendants’ historical pricing strategy for their 700 and 800 core processors. The 700 core
`processor was released for sale in 1999, and the 800 core processor was released for sale in 2006.
`Graber’s disclosure did not include any of the materials required by Rule 26(a)(2)(B)(i)-(vi).
`
`Before 2011, Graber worked for Rosemount (another Emerson subsidiary), not Micro
`Motion. Rosemount does not make Coriolis flowmeters. While he was at Rosemount, Graber
`had no formal responsibilities relating to Coriolis flowmeters and was not involved in marketing,
`competitive intelligence, or strategic planning for those flowmeters. Any information Graber
`had about the accused flowmeters before 2011 would have come second-hand from Micro
`Motion’s sales personnel. Graber also admitted in his deposition that he did not have personal
`knowledge about the pricing of the products Defendants developed as part of Project Pegasus,
`the 2003-2006 R&D program that developed Defendants’ infringing digital drive products,
`including the 800 enhanced core processor.
`
`Graber did not join Micro Motion until 2011. Even then, prior to October 2013 his job
`title was “Marketing Director, Asia Pacific,” and his responsibilities were limited to Asia.
`Before October 2013 he would not have had any personal knowledge about the U.S. Coriolis
`flowmeter market.
`
`

`
`Case 6:12-cv-00799-JRG Document 263-1 Filed 01/26/15 Page 3 of 4 PageID #: 9473
`
`The Honorable Rodney Gilstrap
`January 26, 2015
`Page Two
`
`II.
`
`Argument
`
`“The delineation between a 26(a)(2)(B) expert and a 26(a)(2)(C) expert is whether the
`expert has first-hand factual knowledge of the case so as to escape the requirement that he submit
`a full expert report.” Eagle Oil & Gas Co. v. Travellers Prop. Cas. Co. of Am., No. 7:12-cv-133-
`O, 2014 WL 3744976, at *7 (N.D. Tex. July 30, 2014) (quotations and alterations omitted); see
`also Skyeward Bound Ranch v. City of San Antonio, No. SA-10-CV-136 XR, 2011 WL 2162719,
`at *2 (N.D. Tex. June 1, 2011) (“SBR has not established that Canard has first-hand factual
`knowledge of this case so as to escape the requirement that he submit a full expert report.”).
`Thus, an expert may be designated under Rule 26(a)(2)(C), and avoid providing an expert report,
`only if he has first-hand knowledge of the facts supporting his opinions. In contrast, experts who
`receive their information from others must serve a report under Rule 26(a)(2)(B). As the party
`offering Graber as an expert, Micro Motion has the burden of showing that he was not required
`to produce a full expert report. See Eagle Oil, 2014 WL 3744976, at *7; Skyeward Bound, 2011
`WL 2162719, at *2.
`
`Graber admitted in his deposition that he did not have first-hand knowledge of the pricing
`strategy for the 800 enhanced core processor.
`In addition, before 2011, Graber worked at
`Rosemount, not Micro Motion, and his job responsibilities did not involve Coriolis flowmeters.
`Even after he moved to Micro Motion, until October 2013 Graber’s title was “Marketing
`Director, Asia Pacific,” and his responsibilities were limited to Asia.
`
`Because Graber lacks personal knowledge regarding the accused flowmeters or the U.S.
`Coriolis flowmeter market prior to 2013, Defendants’ attempt to designate him as a Rule
`26(a)(2)(C) expert on these topics was improper. Graber should have provided a full expert
`report containing all the information required by Rule 26(a)(2)(B)(i)-(vi), instead of the limited
`summary disclosure permitted under Rule 26(a)(2)(C). Because Graber failed to provide an
`expert report, his opinions should be stricken, and he should not be allowed to offer them at trial.
`See Eagle Oil, 2014 WL 3744976, at *8; Skyeward Bound, 2011 WL 2162719, at *3.
`
`For the foregoing reasons, Invensys requests permission to file a motion to strike
`Graber’s 26(a)(2)(C) disclosure and exclude his testimony to the extent he seeks to offer
`opinions related to the accused flowmeters or the Coriolis flowmeter market before October
`2013.1
`
`1 In his report, Dr. Keith Ugone, Defendants’ damages expert, also relies on Graber’s improper
`pre-2013 disclosures.
`Invensys requests that the portions of Dr. Ugone’s report that rely on
`Graber’s improper disclosures be stricken as well.
`
`

`
`Case 6:12-cv-00799-JRG Document 263-1 Filed 01/26/15 Page 4 of 4 PageID #: 9474
`
`The Honorable Rodney Gilstrap
`January 26, 2015
`Page Three
`
`cc:
`
`All Counsel of Record (via ECF)
`
`Respectfully submitted,
`/s/ Claudia Wilson Frost
`Claudia Wilson Frost