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GoPro, Inc. v. C&A Marketing, Inc.

United States District Court, N.D. California

May 30, 2017

GOPRO, INC., Plaintiff,
v.
C&A MARKETING, INC., et al., Defendants.

          ORDER GRANTING MOTION TO STRIKE RE: ECF NO. 54

          JON S. TIGAR United States District Judge.

         Before the Court is Plaintiff GoPro, Inc.'s (“GoPro”) Motion to Strike the Declaration of Alan C. Bovik in Support of Defendants' Claim Construction Brief. ECF No. 54. The Court will grant the motion.

         I. BACKGROUND

         In this patent case, GoPro alleges infringement of U.S. Patent Nos. 9, 025, 896 (the “'896 patent”) and 9, 282, 226 (the “'226 patent”). ECF No. 1. The parties began making their respective claim construction disclosures in January of this year. See ECF No. 33. On February 21, 2017, Defendants C&A Marketing, Inc., C&A Licensing LLC, and PLR IP Holdings, LLC (collectively “C&A”) served on GoPro their disclosures pursuant to Patent Local Rule 4-2, providing proposed constructions and supporting evidence for the four disputed claim terms of the '896 patent.[1] ECF No. 54-2. In the cover pleading for these disclosures, C&A stated that it “may rely on expert testimony or [an expert] declaration . . . .” Id. at 2. In the accompanying table, C&A included for each term an identical statement that it “may rely upon the testimony of an expert to explain how one of skill in the art would understand [the claim term] at the time of the invention.” Id. at 4, 7, 10, 12. It did not identify any potential expert by name.

         Thereafter, the parties conferred as required by Patent Local Rule 4-2(c) in advance of filing the Patent Local Rule 4-3 Joint Claim Construction and Prehearing Statement. GoPro claims, and C&A does not deny, that C&A did not identify a claim construction expert during that conference. ECF No. 54-1 at 2, ¶ 5.

         On March 17, 2017, the parties filed their Joint Claim Construction and Prehearing Statement pursuant to Patent Local Rule 4-3. ECF No. 38. In that disclosure, the parties stated that they would not be calling any witnesses at the claim construction hearing. Id. at 4. In the accompanying exhibit providing both parties' proposed constructions and proffered support, C&A again provided the same statement it included in its Patent Local Rule 4-2 disclosures - namely, that it “may” rely on expert testimony regarding how one of ordinary skill in the art would understand the claim term. Id. at 3, 8, 14, 15. Once again, it did not identify an expert by name. The claim construction discovery period closed on April 7, 2017. ECF No. 33 at 1.

         On April 21, 2017, C&A Marketing filed a petition for inter partes review of the '896 patent, and included with its petition an expert declaration from Alan C. Bovik, Ph.D dated April 18, 2017. ECF No. 54-1 at 2, ¶¶ 4, 6, ECF No. 54-3. On April 28, 2017, GoPro filed its Opening Claim Construction Brief. ECF No. 42. GoPro's brief did not rely on expert testimony. On May 10, 2017, the parties conferred again regarding the upcoming tutorial and claim construction hearing. ECF No. 54-1 at 2, ¶ 7. During that conference, C&A did not identify Dr. Bovik as a claim construction expert and again confirmed that it would not be calling any witnesses at the claim construction hearing. Id. On May 12, 2017, C&A filed its Responsive Claim Construction Brief. ECF No. 48. C&A attached to that brief a declaration by Dr. Bovik, ECF No. 48-2. In it, Dr. Bovik offered an opinion as to the appropriate level of skill in the art for the '896 patent (¶¶ 19-21), described and summarized the '896 patent and the disclosed embodiments (¶¶ 22-28), and opined that the four disputed terms had no ordinary meaning to one of ordinary skill in the art and that C&A's proposed constructions were correct (¶¶ 29-31). On May 19, 2017, GoPro filed its Reply Claim Construction brief. ECF No. 53. In that brief, GoPro did not directly address Dr. Bovik's declaration. The same day, GoPro filed a motion to strike Dr. Bovik's declaration, which the Court now considers.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 37(c)(1) provides: “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), 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 was substantially justified or is harmless.” That rule “gives teeth” to Rule 26's disclosure and supplementation requirements, including the requirement that parties disclose expert reports “at the times and in the sequence that the court orders.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); Fed.R.Civ.P. 26(a)(2)(D).

         The Advisory Committee Notes to the 1993 amendments to Rule 37 describe subsection (c)(1) as a “self-executing, ” “automatic” sanction to “provide[] a strong inducement for disclosure of material” that must be disclosed pursuant to Rule 26. Rule 37(c)(1) sanctions based on failure to disclose evidence in a timely manner may be appropriate “even when a litigant's entire cause of action or defense” will be precluded. Yeti, 259 F.3d at 1106.

         Preclusion of late-filed evidence is not appropriate if the party's failure to provide information was “substantially justified” or “is harmless.” Fed.R.Civ.P. 37(c)(1). “Disruption to the schedule of the court and other parties . . . is not harmless.” Wong v. Regents of Univ. of California, 410 F.3d 1052, 1062 (9th Cir. 2005).

         III. DISCUSSION

         Patent Local Rule 4-2 requires the parties to exchange their preliminary proposed constructions for disputed claim terms, as well as the support - both within the patent (intrinsic evidence) and outside of the patent (extrinsic evidence) - for those proposed constructions. Patent L.R. 4-2(b). The rule requires parties who may rely on expert testimony to “provide a description of the substance of that witness' proposed testimony that includes a listing of any opinions to be rendered in connection with claim construction.” Patent L.R. 4-2(b).

         Patent Local Rule 4-3, which sets out the requirements for the Joint Claim Construction and Prehearing Statement, likewise requires identification of “any extrinsic evidence known to the party on which it intends to rely either to support its construction or to oppose any other party's proposed construction, ” ...


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