UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
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`
`
`Before The Honorable Theodore R. Essex
`Administrative Law Judge
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`
`
`In the Matter of
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`CERTAIN MOBILE DEVICES AND
`RELATED SOFTWARE
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`Investigation No. 337-TA-750
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`COMPLAINANT APPLE INC.’S MOTION IN LIMINE NO. 8 TO EXCLUDE THE
`WITNESS STATEMENT OF DR. ROBERT ELLETT (RX-1867) AND TO PRECLUDE
`TESTIMONY
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`Pursuant to Commission Rule 210.15, Complainant Apple Inc. (“Apple”) hereby
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`respectfully moves in limine to preclude Respondent Motorola Mobility’s (“Motorola’s”) expert
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`witness, Dr. Robert Ellett, from testifying or offering opinions at the hearing in this
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`Investigation. The Ground Rules in this Investigation and Commission precedent prohibit
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`experts from testifying outside the scope of their reports, and Dr. Ellett has not submitted any
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`expert reports in this Investigation, nor was he timely disclosed as an expert by Motorola.
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`Accordingly, the Administrative Law Judge should preclude Dr. Ellett from offering opinions at
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`the hearing.
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`Pursuant to Ground Rule 3.2, Apple certifies that it has made reasonable, good-faith
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`efforts to contact and resolve the matter presented in this motion with counsel for Motorola and
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`the OUII Staff Attorney at least two business days prior to filing this motion. Motorola indicated
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`that it will oppose this motion. The OUII Staff indicated that it will state its position after
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`reviewing the motion.
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`

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`Dated: September 6, 2011 (cid:9)
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`Respectfully submitted,
`
`Mark G. Davis
`Brian E. Ferguson
`Robert T. Viasis
`Edward S. Jou
`Christopher T. Marando
`Weil, Gotshal & Manges LLP
`1300 Eye Street, N.W., Suite 900
`Washington, D.C. 20005
`Tel.: (202) 682-7000
`
`Anne M. Cappella
`Jill J. Ho
`Jacqueline T. Harlow
`Erin C. Jones
`Brian C. Chang
`Weil, Gotshal & Manges LLP
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`Tel: (650) 802-3000
`
`Matthew D. Powers
`Steven S. Cherensky
`Paul T. Ehrlich
`Stefani C. Smith
`Robert L. Gerrity
`Tensegrity Law Group LLP
`201 Redwood Shores Parkway, Suite 401
`Redwood Shores, CA 94065
`Tel: (650) 802-6000
`
`Attorneys for Complainant Apple Inc.
`
`N
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`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`
`
`Before The Honorable Theodore R. Essex
`Administrative Law Judge
`
`
`
`
`
`
`
`
`In the Matter of
`
`CERTAIN MOBILE DEVICES AND
`RELATED SOFTWARE
`
`Investigation No. 337-TA-750
`
`
`
`MEMORANDUM IN SUPPORT OF COMPLAINANT APPLE INC.’S MOTION IN
`LIMINE NO. 8 TO EXCLUDE THE WITNESS STATEMENT OF DR. ROBERT
`ELLETT (RX-1867) AND TO PRECLUDE TESTIMONY
`
`
`Complainant Apple Inc. (“Apple”) respectfully submits this Memorandum in Support of
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`its Motion In Limine to Exclude the Witness Statement of Dr. Robert Ellett and to Preclude
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`Testimony (RX-1867). Dr. Ellett should be precluded from offering any opinion testimony at the
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`hearing because: (1) Respondent Motorola Mobility (“Motorola”) failed to disclose Dr. Ellett as
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`an expert witness pursuant to Ground Rule 6 and the Procedural Schedule; and (2) Dr. Ellett has
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`not submitted any expert reports in this Investigation.
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`I.
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`FACTUAL BACKGROUND
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`Motorola’s expert, Dr. Robert Ellett, submitted no expert reports in this Investigation and
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`was not even identified by Motorola as an expert witness pursuant to Ground Rule 6 and the
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`Procedural Schedule. Nevertheless, Dr. Ellett’s Direct Witness Statement (RX-1867) consists
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`entirely of Dr. Ellett utilizing specialized library and information science databases and
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`techniques, along with his twenty years of consulting experience in the field of library and
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`information sciences (RX-1867, Q.7) to render opinions regarding the dates of public availability
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`of various references. Apple has had no opportunity to depose Dr. Ellett regarding these
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`opinions, which Dr. Ellett offers for the first time in his Witness Statement. The Ground Rules
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`
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`in this Investigation and Commission precedent prohibit experts from testifying outside the scope
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`of their expert reports. Accordingly, the Administrative Law Judge should preclude Dr. Ellett
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`from offering any opinions at the hearing.
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`II.
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`ARGUMENT
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`Ground Rule 6 of this Investigation addresses expert reports and requires that, on or
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`before the dates set forth in the procedural schedule, the parties must disclose to each other any
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`individuals “retained or employed to provide expert testimony at the hearing” and “provide to the
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`other parties a written report prepared and signed by the witness.” G.R. 6. The procedural
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`schedule for this investigation required disclosure of all expert witnesses by May 20, 2011 and
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`set the close of expert discovery on August 12, 2011. Motorola’s expert witness disclosure on
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`May 20 failed to disclose Dr. Ellett, Dr. Ellett did not submit any expert reports prior to the
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`August 12 close of expert discovery, and to date he still has not submitted any such reports.
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`Notwithstanding Motorola’s failure to identify Dr. Ellett as an expert witness and the complete
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`absence of any expert reports by Dr. Ellett, Motorola has now submitted a Direct Witness
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`Statement for Dr. Ellett consisting entirely of previously undisclosed expert opinion regarding
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`the dates upon which certain publications were available to the public.
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`This is not the first time that Motorola has failed to timely disclose and provide expert
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`discovery regarding Dr. Ellett’s opinions. In Investigation No. 337-TA-753 (“the 753
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`Investigation”), also before the ALJ, Motorola and other respondents attempted to rely upon Dr.
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`Ellett’s opinions to establish the public availability of prior art publications, just as Motorola
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`does in this investigation. There, the respondents acknowledged—belatedly—that Dr. Ellett’s
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`opinions required an expert disclosure and moved to add Dr. Ellett to their expert witness
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`identification one month after the cutoff for identification of experts established in the procedural
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`4
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`

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`
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`schedule. Certain Semiconductor Chips and Products Containing Same, Inv. No. 337-TA-753,
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`Order No. 48 at 2 (Aug. 24, 2011) (Essex, ALJ). The ALJ denied the motion, finding that the
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`respondents lacked good cause for their month-long delay and provided “absolutely no
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`explanation why they could not have identified Dr. Ellett” before the established deadline. Id.
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`In the present investigation, instead of similarly acknowledging that Dr. Ellett is an expert
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`witness whom they failed to identify during expert discovery, Motorola is taking the untenable
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`position that Dr. Ellett is merely a third-party lay witness. This position is contrary to
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`Motorola’s position and the ALJ’s ruling in the 753 Investigation and should be rejected. It is
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`also contrary to Dr. Ellett’s Witness Statement in this investigation, in which Dr. Ellett draws on
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`his knowledge of library and information science, gained through education, training, and
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`experience, to interpret data pulled from highly specialized cataloging databases. At no point
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`does Dr. Ellet claim to have personal knowledge of the prior existence of the references in
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`question or the manner in which they were or were not made available to the public. Clearly, Dr.
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`Ellett’s opinions fall squarely within the realm of expert testimony requiring an expert report
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`under the Ground Rules.
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`Ground Rule 6 requires that expert witnesses provide “a complete statement of all
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`opinions to be expressed” in their expert reports. G.R. 6. Similarly, Federal Rule of Civil
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`Procedure 26(a)(2)(B) notes that expert reports “must contain a complete statement of all
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`opinions the [expert] witness will express.” Fed. R. Civ. P. 26(a)(2)(B). Experts who fail to
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`disclose their opinions in expert reports are routinely prohibited from testifying regarding those
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`topics at trial. See Certain Semiconductor Integrated Circuits Using Tungsten Metallization and
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`Products Containing Same, Inv. No. 337-TA-648, Order No. 108, 2009 ITC LEXIS 1202 at *2
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`(July 14, 2009) (precluding expert opinion where no expert report submitted); see also Certain
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`5
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`Baseband Processor Chips and Chipsets, Inv. No. 337-TA-543, Final ID, 2006 ITC LEXIS 803
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`at *187 n. 381 (Oct. 10, 2006) (expert was precluded from offering opinions regarding claim
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`terms “not addresses in his expert report”); Certain HSP Modems, Software and Hardware
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`Components Thereof, Inv. No. 337-TA-439, Order No. 76, 2002 ITC LEXIS 149 at *22 (Mar.
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`13, 2002) (permitting expert testimony only to the extent the content was included in expert
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`report). This policy “prevents evidentiary chaos” and exists because “[i]n the interest of fairness,
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`parties should not have to guess at what the opposing expert might say at the hearing.” Certain
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`Semiconductor Integrated Circuits Using Tungsten Metallization and Products Containing
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`Same, Inv. No. 337-TA-648, Order No. 108, 2009 ITC LEXIS 1202 at *2 (July 14, 2009);
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`Certain Display Controllers, Inv. No. 337-TA-491, Order No. 39, 2003 ITC LEXIS 651 at *4
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`(Nov. 10, 2003) (excluding expert testimony not addressed in expert report).
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`Dr. Ellett should be precluded from offering his opinions at the hearing. Because
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`Motorola failed to disclose Dr. Ellett as an expert witness and Dr. Ellett has not submitted any
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`expert reports, Apple has had no opportunity to depose Dr. Ellett regarding his opinions or
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`provide expert rebuttal. To allow Dr. Ellett’s newly-disclosed opinions would facilitate precisely
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`the guesswork and “evidentiary chaos” that the Ground Rules, Federal Rules of Civil Procedure,
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`and Commission precedent seek to eliminate. Accordingly, Dr. Ellett’s Witness Statement
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`should be stricken, and Dr. Ellett should be prohibited from presenting his opinions at the
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`hearing.1
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`1
`Motorola should not be heard to argue that Dr. Ellett is merely offering factual testimony.
`Federal Rule of Evidence 602 states that “[a] witness may not testify to a matter unless evidence
`is introduced sufficient to support a finding that the witness has personal knowledge of the
`matter.” The purpose of this rule “is to assure reliability.” United States ex. rel. El-Amin v.
`George Washington University, 533 F.Supp.2d 12, 25 (D.D.C. 2008) (citing United States v.
`Lemire, 720 F.2d 1327, 1347 (D.C. Cir. 1983)). Similarly, Federal Rule of Evidence 701 limits
`opinion testimony by lay witnesses to those that are “rationally based on the perception of the
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`
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`6
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`

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`III. CONCLUSION
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`For the foregoing reasons, Apple's Motion In Limine No. 8 should be granted.
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`Dated: September 6, 2011 (cid:9)
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`Respectfully submitted,
`
`Mark G. D is
`Brian E. Ferguson
`Robert T. Vlasis
`Edward S. Jou
`Christopher T. Marando
`Weil, Gotshal & Manges LLP
`1300 Eye Street, N.W., Suite 900
`Washington, D.C. 20005
`Tel.: (202) 682-7000
`
`Anne M. Cappella
`Jill J. Ho
`Jacqueline T. Harlow
`Erin C. Jones
`Brian C. Chang
`Weil, Gotshal & Manges LLP
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`Tel: (650) 802-3000
`
`Matthew D. Powers
`Steven S. Cherensky
`Paul T. Ehrlich
`Stefani C. Smith
`Robert L. Gerrity
`Tensegrity Law Group LLP
`201 Redwood Shores Parkway, Suite 401
`Redwood Shores, CA 94065
`Tel: (650) 802-6000
`
`Attorneys for Complainant Apple Inc.
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`witness," which is "the familiar requirement of firsthand knowledge or observation." Fed. R.
`Evid. 701 advisory committee note (emphasis added). FRE 701 also excludes opinion testimony
`from a lay witness that is "based on scientific, technical, or other specialized knowledge within
`the scope of Rule 702." Id. Here, Dr. Ellett has no "firsthand knowledge" of the facts alleged in
`his witness statement, and the subject matter of his statement, in its entirety, is based on
`"scientific, technical, or other specialized knowledge."
`
`7
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`

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`CERTIFICATE OF SERVICE
`
`I hereby certify that a copy of the foregoing was served on September 6, 2011 as indicated, on
`the following:
`
`Via EDIS
`The Honorable James R. Holbein
`Secretary
`U.S. International Trade Commission
`500 E Street SW, Room 112
`Washington, D.C. 20436
`
`Via Email
`Lisa Kattan
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street, S.W., Room 401
`Washington, D.C. 20436
`Lisa. kattan@usitc. gov
`
`Via Hand Delivery & Email (2 copies)
`The Honorable Theodore R. Essex
`Office of the Administrative Law Judge
`U.S. International Trade Commission
`500 E Street SW, Room 317
`Washington, D.C. 20436
`gregory.moldafsky@usitc.gov
`
`Via Email and Hand -Delivery
`Charles F. Schill
`STEPTOE & JOHNSON LLP
`1330 Connecticut Avenue, N.W.
`Washington, DC 20036
`motorola750@steptoe.com
`
`Via Email
`Charles K. Verhoeven
`Quinn Emanuel Urquhart & Sullivan LLP
`50 California Street, 22nd Floor
`San Francisco, CA 94111
`
`Via Email
`Robert T. Haslam
`Covington & Burling LLP
`333 Twin Dolphin Drive, Suite 700
`Redwood Shores, CA 94065-1418
`
`David A. Nelson
`Quinn Emanuel Urquhart & Sullivan LLP
`500 West Madison Street, Ste. 2450
`Chicago, IL 60661
`
`Robert D. Fram
`Covington & Burling LLP
`One Front Street
`San Francisco, CA 941110
`
`Edward J. DeFranco
`Quinn Emanuel Urquhart & Sullivan LLP
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`
`Moto-Apple-750 (cid:9) quinnemanuel.com
`
`AppleCov@cov.com
`
`lleen Sph
`Paralegal