Case 6:12-cv-00799-JRG Document 290-1 Filed 02/12/15 Page 1 of 4 PageID #: 9629
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`Exhibit 1
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`Case 6:12-cv-00799-JRG Document 290-1 Filed 02/12/15 Page 2 of 4 PageID #: 9630
`ATTORNEYS AT LAW
`777 EAST WISCONSIN AVENUE
`MILWAUKEE, WI 53202-5306
`414.271.2400 TEL
`414.297.4900 FAX
`foley.com
`
`FOLEY & L ARDN ER LLP
`
`CLIENT/MATTER NUMBER
`087886-0122
`
`February 12, 2015
`
`The Honorable Rodney Gilstrap
`United States District Court for the Eastern District of Texas
`100 East Houston Street
`Marshall, TX 75670
`
`Re:
`
`Invensys Systems, Inc. v. Emerson Electric Co. and Micro Motion, Inc.
`Civil Action No. 6:12-cv-00799-JRG
`
`Dear Judge Gilstrap:
`
`Defendants Emerson Electric Co. and Micro Motion, Inc. (collectively, “Micro Motion”)
`submit this answering letter brief to Invensys’s January 26, 2015 letter requesting permission to
`file a motion to strike the Rule 26(a)(2)(C) disclosure of Micro Motion employee, Bill Graber, to
`the extent he seeks to offer certain opinions related to the accused flow meters or the Coriolis
`flow meter market before October 2013. (See Dkt. No. 263-1.) Because such a motion would be
`futile, Invensys’s request to file a motion on this issue should be denied.
`
`It is without question that Mr. Graber is a current Micro Motion employee whose duties
`do not regularly involve giving expert testimony. Thus, Mr. Graber is squarely within the
`confines of Rule 26(a)(2)(C) and its less extensive disclosure requirements. Consistent with
`Rule 26(a)(2)(C), Mr. Graber’s detailed 26 paragraph disclosure sets forth both the subject
`matter on which he is expected to present evidence under Federal Rule of Evidence 702, 703,
`and 705 as well as a summary of the facts and opinions Mr. Graber may address in his testimony.
`
`Invensys has not (and cannot) challenge Mr. Graber’s contemplated testimony as
`unsupported or unreliable. Instead, Invensys imports a requirement that Mr. Graber’s testimony
`must exclusively be grounded in “personal knowledge.”1 There is no such “personal knowledge”
`requirement for employee experts. Both Rule 703 of the Federal Rules of Evidence and the
`relevant case law clearly provide to the contrary. Moreover, much of Mr. Graber’s testimony is
`offered to rebut Invensys’s lost profits damages claim, two-thirds of which is based on sales
`allegedly lost during the period 2012-2015, relating to competitive conditions in the Coriolis
`flow meter market during the time he has been employed by Micro Motion.
`
`
`1 Invensys also appears to suggest that because Mr. Graber’s Coriolis flow meter-related
`employment was outside the United States prior to October 2013, his ability to testify to facts
`and opinions he otherwise has is undermined. Invensys provides no support for this argument,
`likely because there is none.
`
`BOSTON
`BRUSSELS
`CHICAGO
`DETROIT
`
`JACKSONVILLE
`LOS ANGELES
`MADISON
`MIAMI
`
`MILWAUKEE
`NEW YORK
`ORLANDO
`SACRAMENTO
`
`SAN DIEGO
`SAN DIEGO/DEL MAR
`SAN FRANCISCO
`SHANGHAI
`
`SILICON VALLEY
`TALLAHASSEE
`TAMPA
`TOKYO
`WASHINGTON, D.C.
`
`4844-6557-5458.
`
`

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`Case 6:12-cv-00799-JRG Document 290-1 Filed 02/12/15 Page 3 of 4 PageID #: 9631
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`FOLEY & L ARDN ER LLP
`Page 2
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`I.
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`RULE 26(a)(2)(C) GOVERNS MR. GRABER’S DISCLOSURE
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`Invensys styles its letter brief as a request to limit the testimony of Mr. Graber, premised
`on the mistaken belief that Mr. Graber should be treated as a Rule 26(a)(2)(B) witness for
`subjects, facts, or opinions regarding activities prior to October 2013, the date his employment
`began with Micro Motion in the United States.2 Invensys argues that because Mr. Graber failed
`to prepare and serve an expert report containing the information required by Rule 26(a)(2)(B)(i)-
`(vi), Mr. Graber’s testimony should be stricken. Invensys has no support for its position. Rule
`26(a)(2)(C) clearly governs Mr. Graber’s disclosure.
`
`The delineation between a Rule 26(a)(2)(B) witness and Rule 26(a)(2)(C) witness does
`not, as Invensys contends, hinge on first-hand factual knowledge of the witness. Rather, the
`relationship of the witness to the offering party dictates which provision of Rule 26 controls. A
`written report is only required “if the witness is one retained or specially employed to provide
`expert testimony in the case or one whose duties as the party’s employee regularly involve
`giving expert testimony.” Fed. R. Civ. P. 26(a)(2)(B). Thus, if the expert is an employee who is
`not “retained or specially employed to provide expert testimony” or “one whose duties as the
`party’s employee regularly involve giving expert testimony,” the considerably less extensive
`requirements of Rule 26(a)(2)(C) control. “The requirement of a written report in paragraph
`(2)(b), however, applies only to those experts who are retained or specially employed to provide
`such testimony in the case or whose duties as an employee of the company regularly involve the
`giving of such testimony.” Official Comment to Rule 26(a)(2) (1993).
`
`Mr. Graber has been employed by Micro Motion as a sales executive since before this
`case was filed; his duties do not regularly involve the giving of expert testimony. Invensys does
`not (and cannot) assert that Mr. Graber was retained or specially employed to provide expert
`testimony in this case. Nor can Invensys credibly contend that Mr. Graber’s duties regularly
`involve giving expert testimony. Thus, Mr. Graber had no need to serve an expert report
`adhering to the requirements of Rule 26(a)(2)(B). Invensys’s challenge to Mr. Graber’s
`disclosure on this basis is futile and must be rejected.
`
`II.
`
`IS SUFFICIENT TO SATISFY THE
`MR. GRABER’S DISCLOSURE
`REQUIREMENTS OF RULE 26(a)(2)(C)
`There is no support for Invensys’s position that Mr. Graber’s disclosure is deficient
`because of his purported lack of personal knowledge. First, as demonstrated during his
`deposition, Mr. Graber is knowledgeable about the accused Micro Motion flow meters and the
`Coriolis flow meter market, the particular details of which are set forth in his disclosure.
`
`Second, Invensys’s position is contradicted by the Rules of Evidence. A plain reading of
`Federal Rule of Evidence 703 rejects Invensys’s “personal knowledge” requirement. “An expert
`
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`2 Invensys admits – or at least does not credibly challenge – that Mr. Graber’s disclosure is
`sufficient as to the information he discloses relating to Coriolis flow meter activity after October
`2013.
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`

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`FOLEY & L ARDN ER LLP
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`may base an opinion on facts or data in the case that the expert has been made aware of or
`personally observed.” Fed. R. Evid. 703 (emphasis added).
`
`Third, not only is Invensys’s “personal knowledge” argument belied by the facts and the
`Rules, it has been squarely rejected by the courts. “The Court's opinion should not be construed
`as finding that all 26(a)(2)(C) witnesses can only offer testimony based on their personal
`knowledge. Indeed, 26(a)(2)(C) envisions that experts not providing a report can ‘present
`evidence under Federal Rule of Evidence 702, 703, or 705.’” LaShip, LLC v. Hayward Baker,
`Inc., 296 F.R.D. 475, 480 (E.D. La. 2013) (emphasis added). Contrary to Invensys’s position,
`Skyebound Ranch does not adopt a hard-and-fast rule to the contrary; rather, that court said only
`that “[r]equiring less of an expert who is not retained or specially employed is logical because
`type of witness usually
`that
`has
`firsthand
`factual knowledge about
`the case.”
`Skyeward Bound Ranch v. City of San Antonio, No. SA-10-CV-0316 XR, 2011 U.S. Dist. LEXIS
`59304, at *8-9 (W.D. Tex. June 1, 2011) (emphasis added). The cases Invensys relies on relate to
`experts who were not employees of the party offering their testimony, and who were in fact
`“retained or specially employed to provide expert testimony.” For instance, in the Eagle Oil
`case, the defendant was an insurance company, and the proposed expert was an expert on oil and
`gas wells who had been retained by the insurance company specifically to investigate the
`particular well explosion being litigated: “Travelers retained Sones in March 2012, five and a
`half months after the well blowout, for an ‘engineering and operations review and evaluation of
`[the Well’s] failure.’” Eagle Oil & Gas Co. v. Travelers Prop. Cas. Co. of Am., No. 7:12-cv-
`00133-O, 2014 U.S. Dist. LEXIS 103537, at *22 (N.D. Tex. July 30, 2014) (emphasis in the
`original). Because Travelers did not meet its burden of showing that the witness was not a
`retained expert or an employee, then the court concluded that Rule 26(a)(2)(B) applied, and the
`witness should have submitted a written report. Id. at *24-25. Likewise, in the Skyeward Bound
`case, none of the experts were an employee of the party. 2011 U.S. Dist. LEXIS 59304 at *8-11.
`Unlike the non-employee experts in these cases, Micro Motion employee, Mr. Graber, properly
`disclosed subjects, facts, and opinions of which he has been made aware of or personally
`observed.
`
`III.
`
`CONCLUSION
`For at least these reasons, Micro Motion respectfully requests that Invensys’s request to
`file a motion to strike the Rule 26(a)(2)(C) expert disclosure of Mr. Graber be denied.3
`
`Sincerely,
`/s/ Kadie M. Jelenchick
`Kadie M. Jelenchick
`
`cc: all counsel of record (by ECF)
`
`3 Because Mr. Graber’s disclosure is proper, there is no basis for Invensys to object or move to
`strike those portions of Dr. Ugone’s report that rely on Mr. Graber’s contemplated testimony.
`(See Dkt. No. 263-1 at n.1.)