United States District Court, N.D. Texas, Dallas Division
FRACTUS, S.A. Plaintiff,
ZTE CORPORATION, ZTE USA, INC., and ZTE TX, INC., Defendants.
MEMORANDUM OPINION AND ORDER
KINKEADE UNITED STATES DISTRICT JUDGE.
the Court are multiple motions filed by the parties related
to the striking of expert reports and testimony. These
motions are Plaintiff Fractus' Motion to Strike Portions
of the Expert Reports of Chris Bartone and Vince Thomas (Doc.
No. 184); Defendant, ZTE (USA), Inc.
("ZTE")''s Motion to Strike Plaintiff
Fractus' Expert Reports of Dr. Stuart Long (Doc. No.
200), which was filed under seal as Doc. No. 200 and also
filed unsealed in redacted form as Doc. No. 186; and
Defendant ZTE (USA), Inc.'s Motion to Strike the Reports
and Testimony of Robert Mills Pursuant to Daubert
[Under Seal] (Doc. No. 194), which was filed under seal as
Doc. No. 194 and filed in redacted unsealed form as Doc. No.
188. After consideration of the pleadings, the arguments of
the parties, the evidence of record, and the applicable law,
the Court GRANTS in part and
DENIES in part Plaintiff Fractus' Motion
to Strike Portions of the Expert Reports of Chris Bartone and
Vince Thomas (Doc. No. 184) and DENIES
Defendant ZTE's Motion to Strike Plaintiff Fractus'
Expert Reports of Dr. Stuart Long (Doc. Nos. 200 and 186) and
Defendant ZTE's Motion to Strike the Reports and
Testimony of Robert Mills Pursuant to Daubert [Under
Seal] (Doc. Nos. 194 and 188).
Plaintiff Fractus' Motion to Strike Portions of The
Expert Reports of Chris Bartone and Vince Thomas (Doc. No.
Plaintiff, Fractus, S.A. ("Fractus") has moved the
Court to strike portions of the reports of two of ZTE's
experts. The reports at issue are the rebuttal report of
Chris Bartone, ZTE's non-infringement expert, and the
report of Vince Thomas, ZTE's damages expert.
asserts that two portions of Mr. Bartone's report should
be stricken. According to Fractus, the first portion of this
report that should be stricken raises an infringement defense
that was not previously disclosed and the second portion of
this report relates to a non-infringing alternative that was
also not previously disclosed. Fractus asserts that since ZTE
had not previously disclosed the theory of non-infringement
and the non-infringing alternative, ZTE should not be allowed
to introduce either of these into this litigation at this
the report of Mr. Thomas, ZTE's damages expert, Fractus
argues that a portion of this report should be stricken
because this portion relies on the previously undisclosed non
infringing alternative that is included in Mr. Bartone's
the non-infringing alternative issue, Fractus served on ZTE
an interrogatory that specifically requested ZTE to identify
any asserted non-infringing alternatives. This was
Fractus' Interrogatory No. 5 which read as follows:
For each asserted claim identify any products you contend are
acceptable non-infringing alternatives to the patented
products, identifying with specificity which claim elements
asserted in Fractus' infringement contentions you contend
are absent from such non-infringing alternatives, and stating
why those elements are missing and why the alternatives are
acceptable to consumers.
Appendix in Support of Fractus' Motion to Strike at 9
(Doc. No. 184-2). ZTE failed to substantively respond to this
interrogatory. In ZTE's response to this interrogatory,
ZTE stated, "Defendant objects to this interrogatory to
the extent that it seeks privileged information. Defendant
further objects to this interrogatory as premature, given the
stage of the case. Investigation continues."
Id. Even though ZTE amended its interrogatory
responses twice, it never amended or updated the response to
addition, Fractus, in a 30(b)(6) deposition notice, included
the topic of:
Any products you contend are acceptable non-infringing
alternatives to the patented products, including which claim
elements you contend are absent from such non-infringing
alternatives, why those elements are missing, why the
alternatives are acceptable to consumers, and the cost of
manufacturing the alternatives.
Id. at 15. ZTE failed to provide a witness for this
topic. Id. Instead, ZTE asserted "ZTE
incorporates its General Objections. ZTE objects to this
Topic as calling for the expert testimony." Id.
ZTE's failure to identify any alleged alternative
non-infringing devices or to provide a deposition witness for
this topic, Mr. Bartone, in his rebuttal report, offered an
opinion on a non-infringing alternative. Fractus asserts
that, since ZTE had not previously informed Fractus that ZTE
would assert this non infringing alternative, it cannot now
introduce this non infringing alternative at this late stage
of this case.
responds that striking the portions of these expert reports
is not warranted because Fractus was not harmed by any
asserted failure to disclose non-infringing alternatives and
if Fractus was harmed, this was due to Fractus' own
failure to further pursue discovery on the issue. In support
of these conclusions, ZTE asserts that ZTE made it clear to
Fractus that it was ZTE's position that the subject of
non-infringing alternatives is an area that requires expert
testimony; Fractus failed to complain about this assertion;
Fractus was aware of the issue when this Court reopened fact
discovery after this case was transferred to this Court; and
the expert's testimony was rebuttal testimony which
addressed non-infringing alternatives in response to
Fractus' infringement expert's report.
party fails to disclose information in response to a
discovery request or fails to identify a witness, "the
party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial,
unless the failure ...