Case 1:22-cv-00058-ADA Document 267 Filed 09/10/24 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`Civil Action No. 1:22:CV-00058-ADA
`JURY TRIAL DEMANDED
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`IDENTITY SECURITY LLC,
`Plaintiff,
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`v.
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`APPLE INC.,
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`Defendant.
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`DEFENDANT APPLE, INC.’S OPPOSITION
`TO PLAINTIFF IDENTITY SECURITY LLC’S
`MOTION IN LIMINE RE DAUBERT ORDERS
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`Case 1:22-cv-00058-ADA Document 267 Filed 09/10/24 Page 2 of 7
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Hillman Group, Inc. v. KeyMe, LLC,
`2021 WL 1248180 (E.D. Tex. Mar. 30, 2021) ................................................................... 2
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`Integra Lifesciences v. Hyperbranch Medical Technology,
`2018 WL 2186671 (D. Del. May 11, 2018) ........................................................................ 2
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`McConnell v. United States,
`393 F.2d 404 (5th Cir. 1968) .............................................................................................. 1
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`Sunoco Partners Mktg. & Terminals v. Powder Springs Logistics,
`2021 WL 5275780 (D. Del. Nov. 10, 2021) ....................................................................... 2
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`Vaporstream v. Snap,
`2020 WL 978731 (C.D. Cal. Feb. 28, 2020)....................................................................... 2
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`Case 1:22-cv-00058-ADA Document 267 Filed 09/10/24 Page 3 of 7
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`TABLE OF EXHIBITS
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`Exhibit
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`Description
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`1
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`2
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`3
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`4
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`September 3, 2024 email from Moore to Hoogendoorn
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`Expert Report of Dr. Eric Cole, dated April 30, 2024 (“Cole Sub.
`Rep.”) (highlighting added)
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`Expert Report of Dr. Eric Cole, dated November 30, 2023 (Cole Opn.
`Rep.) (highlighting added)
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`Deposition Transcript of Eric Cole, taken on June 11, 2024 (“Cole
`June Dep. Tr.”) (highlighting added)
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`Case 1:22-cv-00058-ADA Document 267 Filed 09/10/24 Page 4 of 7
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`While Apple does not oppose excluding “evidence, testimony, or argument about the
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`Court’s Daubert rulings in this case,” Apple opposes Plaintiff’s motion to the extent that it seeks
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`to exclude mention of the “the existence or contents of” Plaintiff’s experts’ previous opinions,
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`including for purposes of cross-examination or impeachment. See Mot. at 1.1, 2 Apple should be
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`permitted to cross-examine Plaintiff’s experts with their prior inconsistent statements. Plaintiff’s
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`motion should be denied for three reasons.
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`First, Plaintiff is wrong that “the contents of the prior opinions are irrelevant” simply
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`because “the Court has ruled that the jury cannot consider them on the merits in this case.” Id.
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`Plaintiff’s experts submitted new reports that include opinions inconsistent with those they
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`presented previously. For example, in his new report, Dr. Cole concludes that security and privacy
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`account for either
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`% of the iPhone’s value. Ex. 2 [Cole Sub. Rep.] ¶ 327. But in his first
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`report, Dr. Cole opined that security and privacy were worth % of the iPhone’s value—a number
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`he called “extremely conservative.” Ex. 3 [Cole Opn. Rep.] ¶ 117 (p. 66-67). Those sorts of
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`inconsistent opinions bear directly on Plaintiff’s experts’ credibility, and Apple is entitled to bring
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`them to light before the jury. McConnell v. United States, 393 F.2d 404, 407 (5th Cir. 1968) (“[T]he
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`district judge committed reversible error in not allowing a thorough and complete cross-
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`examination of [an expert on] a possible prior inconsistent opinion”).
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`Second, Plaintiffs inflate the propensity for jury confusion by overstating the differences
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`between its experts “prior and current models.” Mot. at 2. Contrary to Plaintiff’s assertions that its
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`experts will be offering “completely new opinions,” id., Dr. Cole testified during his deposition
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`that “[t]he general methodology [of his new Device Apportionment Analysis] is still the same” as
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`1 Apple communicated this position during the parties’ August 26, 2024 meet and confer. See
`Ex. 1 [Email from Moore].
`2 All emphasis added unless otherwise stated.
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`1
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`Case 1:22-cv-00058-ADA Document 267 Filed 09/10/24 Page 5 of 7
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`the methodology he advanced in his first, excluded report. Ex. 4 [Cole Dep. Tr.] at 90:21-25;
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`compare id. at 9:15-11:21 with id. at 89:2-90:20.3
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`Third, Plaintiff’s cited authorities do not support such broad exclusion. In Plaintiff’s first
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`cited case, Vaporstream v. Snap, the moving party sought only to exclude “references to motions,
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`rulings on motions, and orders,” not the entire existence and contents of prior reports that could
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`be used to test an expert’s credibility during cross-examination. 2020 WL 978731, at *10 (C.D.
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`Cal. Feb. 28, 2020). Likewise, in Sunoco Partners Mktg. & Terminals v. Powder Springs Logistics,
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`the court similarly excluded arguments “informing the jury of the Court’s prior rulings.” 2021 WL
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`5275780, at *2 (D. Del. Nov. 10, 2021) (emphasis added). In both cases, the court explained that
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`the rationale behind its decision was to prevent the jury from placing undue weight on something
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`the court itself had said or done. See id.; Vaporstream, 2020 WL 978731, at *10. But that concern
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`is not present here, where a party seeks only to cross-examine an expert on his own inconsistent
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`statements, without reference to the court’s earlier exclusion order. In Integra Lifesciences v.
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`Hyperbranch Medical Technology, the court expressly recognized the difference between the two
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`scenarios, granting a motion in limine precluding the parties from “informing the jury of what the
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`Court has ruled prior to trial,” but clarifying that it would not “preclude either side from cross-
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`examining a witness based on her prior inconsistent statement(s).” 2018 WL 218667, at *1 (D.
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`Del. May 11, 2018). And notably, this Court’s own Standing Motion in Limine No. 1 already
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`precludes “evidence, testimony, or argument regarding pretrial proceedings or issues,” but
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`appropriately stops short of excluding the existence or contents of excluded opinions.
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`3 To the extent Identity Security argues that introduction of such prior inconsistent statements
`would be “highly prejudicial” even for impeachment, Mot. at 2, courts can employ protective
`measures (short of wholesale exclusion) to mitigate that risk. See, e.g., Hillman Group, Inc. v.
`KeyMe, LLC, 2021 WL 1248180, at *3, *9 (E.D. Tex. Mar. 30, 2021) (allowing excluded evidence
`to be presented for impeachment purposes so long appropriate redactions were made).
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`2
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`Case 1:22-cv-00058-ADA Document 267 Filed 09/10/24 Page 6 of 7
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`Dated: September 4, 2024
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`By:
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`/s/ Cosmin Maier
`MORRISON FORESTER LLP
`Brian C. Nash (TX Bar No. 24051103)
`Regan J. Rundio (TX Bar No. 24122087)
`300 Colorado Street, Suite 1800
`Austin, TX 78701
`Telephone: 512.617.0650
`BNash@mofo.com
`RRundio@mofo.com
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`DESMARAIS LLP
`John M. Desmarais (pro hac vice)
`Cosmin Maier (pro hac vice)
`Leslie M. Spencer (pro hac vice)
`Kerri-Ann Limbeek (pro hac vice)
`Michael Wueste (pro hac vice)
`Jun Tong (pro hac vice)
`William Vieth (pro hac vice)
`Asim Zaidi (pro hac vice)
`Gillian Moore (pro hac vice)
`230 Park Avenue
`New York, NY 10169
`Tel: 212-351-3400
`Fax: 212-351-3401
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`ORRICK, HERRINGTON &
`SUTCLIFFE LLP
`Elizabeth R. Moulton (pro hac vice pending)
`405 Howard Street
`San Francisco, CA 94105
`Telephone: (415) 773-5700
`Facsimile: (415) 773-5759
`emoulton@orrick.com
`Jeffrey T. Quilici
`TX State Bar No. 24083696
`300 W. 6th Street, Suite 1850
`Austin, TX 78701
`Tel: (512) 582-6950
`Fax: (512) 582-6949
`jquilici@orrick.com
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`Attorneys for Defendant Apple Inc.
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`Case 1:22-cv-00058-ADA Document 267 Filed 09/10/24 Page 7 of 7
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that the foregoing sealed document and all attachments
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`thereto are being served via email on all counsel of record on September 4, 2024.
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`/s/ Cosmin Maier
`Cosmin Maier
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`4
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