Case 6:12-cv-00799-JRG Document 309-1 Filed 02/20/15 Page 1 of 4 PageID #: 9769
`Case 6:l2—cv—00799—JRG Document 309-1 Filed 02/20/15 Page 1 of 4 Page|D #: 9769
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`EXHIBIT A
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`EXHIBIT A
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`Case 6:12-cv-00799-JRG Document 309-1 Filed 02/20/15 Page 2 of 4 PageID #: 9770
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`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
`
`
`
`February 20, 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.
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`Dear Judge Gilstrap:
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`I.
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`Defendants’ response to Invensys’s opening letter brief request does not address the
`inadequacies of Dr. Blair’s survey and his testimony should be excluded. Further, because Dr.
`Blair and Defendants refused to produce the survey respondents’ identifying information, the
`Court should strike Dr. Blair’s testimony and his survey without awaiting further briefing.
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`Dr. Blair’s and Defendants’ Refusal to Provide the Data Underlying His Survey Is
`An Improper Sword and Shield Strategy That Should Bar His Testimony.
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`Dr. Blair’s and Defendants’ refusal to produce the survey respondents’ identifying
`information is an independent ground to bar his testimony and strike the survey. This
`information is indisputably relevant to facts of consequence, i.e., who purchased the accused
`products and why. It cannot be shielded from discovery by Dr. Blair’s assertion of an ethical
`obligation that is not recognized in the Federal Rules.1 Defendants have improperly used the
`survey as a sword against damages and simultaneously shielded the underlying data to preclude
`Invensys from attacking the survey’s results. Defendants cannot have it both ways.2 Cf. Willy v.
`Admin. Review Bd., 423 F.3d 483, 497 (5th Cir. 2005) (the attorney-client privilege prohibits
`simultaneous use of “confidential information as both a shield and a sword” (citations omitted)).
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`Additionally, Defendants reliance on United States v. Dentsply International, Inc., No.
`99-5 MMS, 2000 U.S. Dist. LEXIS 6994 (D. Del. May 10, 2000), is misplaced. Dentsply
`supports Invensys’s position. In Dentsply, the defendant moved for sanctions against the
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`1 It is notable that Dr. Blair’s survey did not ask respondents if their responses or identifying information needed to
`remain confidential nor did his script include a commitment to do so.
`2 Defendants refusal is part of a continuing course of conduct. During discovery Defendants repeatedly refused to
`produce their customer list, claiming the information was irrelevant—the very same customer list that was used by
`Dr. Blair as the basis for his survey. Indeed, Defendants only produced the list some four months after the close
`of discovery on the eve of the motion to compel hearing. And, in a later meet and confer, Defendants’ counsel
`specifically told Invensys that they were not using or relying on the customer list or the underlying data for any
`purpose—which is inconsistent with what they have in fact done.
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`Case 6:12-cv-00799-JRG Document 309-1 Filed 02/20/15 Page 3 of 4 PageID #: 9771
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`
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`The Honorable Rodney Gilstrap
`February 20, 2015
`Page Two
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`plaintiff for failure to produce with its Rule 26(a)(1) disclosure a survey (and its identifying
`information) where the survey was performed prior to complaint filing. Id. at *2, *25-26
`(plaintiff later produced the requested data two months before fact discovery cutoff and prior to
`expert discovery). The court distinguished case law cited by the defendant—some of the same
`law cited by Invensys (e.g., United States Surgical Corp. v. Orris, Inc., 983 F. Supp. 963 (D.
`Kan. 1997))—as addressing “whether” the identifying information had to be produced, not
`“when.” Id. at *17 n.9. Thus, Dentsply involved the timing of the production of the identities of
`the survey respondents (i.e., in the initial Rule 26(a)(1) disclosures), not whether production was
`required. Id.; see also Sharp v. Chase Manhattan Bank USA, N.A. (In re Commercial Fin.
`Servs., Inc.), Bankr. No. 98-5162-R, 2005 WL 6725897, at *12 n.9 (Bankr. N.D. Okla. May 10,
`2005) (distinguishing Dentsply on this basis). Moreover, the court explicitly distinguished the
`pre-suit survey in Dentsply from surveys that used open-ended questions and “verbatim” answers
`(like Dr. Blair’s survey). Id. at *31-32. Open-ended questions and verbatim answers require the
`identifying information to test validity. Id. Invensys agrees and asks that Dr. Blair’s survey
`and testimony be struck without further briefing to avoid wasting the Court’s time and resources.
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`II.
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`Blair’s Survey Is Methodologically Unreliable.
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`Even without production of the identifying information, the methodological flaws in Dr.
`Blair’s survey are indisputable: (1) open-ended questions without follow up to the answer’s
`meaning, (2) non-mutually exclusive response categories overlapping each other and the
`patented technology, (3) an insufficient vetting process to ensure the respondent was actually in a
`position to know the answer, and (4) no tie between the most recent purchase and the relevant
`damages period. These “purposeful” flaws were introduced by Dr. Blair to achieve a litigation
`driven result, in contrast to Defendants’ methodologically sound surveys conducted years earlier
`when Defendants were surveying the importance of two-phase flow solutions to customers.
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`III. Blair’s Two-Supplier Market Opinion Is Still Not Relevant to the Market Segment.
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`Defendants only argument for relevance is that no respondent used the specific words:
`“two-phased flow,” “batch processing,” or “slug flow.” However, that does not mean they were
`not attributing the accused products’ two-phase flow capability to improvements in “accuracy,”
`“reliability,” and “fit for purpose.” Nor does the survey support the conclusion that there is not a
`two supplier market for two-phase flow Coriolis flowmeters. The survey did not ask one
`question specific to the two-phase flow market segment or its suppliers. Dr. Blair’s methodology
`was akin to asking Ford F-150 buyers why they bought their truck, and concluding truck owners
`in Houston do not care about air conditioning simply because no one specifically said “because it
`had air conditioning.” That conclusion, like Dr. Blair, requires too great an analytical gap. See
`G.E. v. Joiner, 522 U.S. 136, 146 (1997).
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`Case 6:12-cv-00799-JRG Document 309-1 Filed 02/20/15 Page 4 of 4 PageID #: 9772
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`The Honorable Rodney Gilstrap
`February 20, 2015
`Page Three
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`cc:
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`All Counsel of Record (via ECF)
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`Very truly yours,
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`/s/ Claudia Wilson Frost
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`Claudia Wilson Frost