Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE POLAROID CORPORATION Plaintiff, v. HEWLETT-PACKARD COMPANY, Defendant. ) ) ) ) ) ) ) ) )

C.A. No. 06-738 (SLR)

POLAROID'S OPENING BRIEF IN SUPPORT OF ITS MOTION TO PRECLUDE HEWLETT-PACKARD FROM RELYING ON UNTIMELY DISCLOSED OPINIONS AND WITNESSES MORRIS, NICHOLS, ARSHT & TUNNELL LLP Jack B. Blumenfeld (#1014) Julia Heaney (#3052) 1201 N. Market Street Wilmington, Delaware 19801 (302) 658-9200 [email protected] [email protected] Attorneys for Plaintiff, Polaroid Corporation

OF COUNSEL: Russell E. Levine, P.C. G. Courtney Holohan Michelle W. Skinner David W. Higer Maria A. Meginnes KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, IL 60601 (312) 861-2000 June 25, 2008

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TABLE OF CONTENTS NATURE AND STAGE OF THE PROCEEDING.........................................................................1 SUMMARY OF ARGUMENT .......................................................................................................1 STATEMENT OF FACTS ..............................................................................................................1 A. B. HP's Untimely Disclosure Of The New Rangayyan Declaration................1 HP's Untimely Disclosure Of Fact Witnesses. ............................................2

ARGUMENT...................................................................................................................................3 I. II. THE LEGAL STANDARD FOR A MOTION TO PRECLUDE SUPPORTS EXCLUSION. .....................................................................................3 THE PENNYPACK FACTORS SUPPORT EXCLUSION OF THE RANGAYYAN DECLARATION AND WITNESSES..........................................4 A. B. Incurable Prejudice To Polaroid Favors Exclusion. ....................................5 HP's Conduct Evidencing Bad Faith And Willfulness Favors Exclusion......................................................................................................6

CONCLUSION................................................................................................................................7

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TABLE OF AUTHORITIES Cases Amaya v. York Hospital, Civil Action No. 1:04-CV-1081, 2005 WL 5988683 (M.D. Pa., Dec. 28, 2005)............... 5 Anchor Wall Sys., Inc. v. Rockwood Retaining Walls, Inc., 340 F.3d 1298 (Fed. Cir. 2003)........................................................................................... 5 Aventis Pharm. Inc. v. Barr Laboratories, Inc., C.A. No. 06-286-GMS (D. Del. May 16, 2008) ................................................................. 4 Bridgestone Sports Co., Ltd. v. Acushnet Co., No. Civ. A. 05-132 JJF, 2007 WL 521894 (D. Del. Feb. 15, 2007)........................... 3, 4, 5 Chimie v. PPG Indus., Inc., 402 F.3d 1371 (Fed. Cir. 2005)........................................................................................... 5 Finch v. Hercules, Inc., No. Civ. A 92-251 MMS, 1995 WL 785100 (D. Del. Dec. 22, 1995) ............................... 3 In re TMI Litigation, 193 F.3d 613 (3d Cir. 1999)............................................................................................ 1, 5 Philips Elecs. N. Am. Corp. v. Contec Corp., No. Civ. A. 02-123-KAJ, 2004 WL 769371 (D. Del. Apr. 5, 2004) .............................. 1, 3 Praxair, Inc. v. ATMI, Inc., 445 F.Supp.2d 460 (D. Del. 2006).............................................................................. 1, 5, 6 Praxair, Inc. v. ATMI, Inc., 231 F.R.D. 457 (D. Del. 2005) ................................................................................... 3, 4, 5 Quinn v. Consol. Freightways Corp. of Del., 283 F.3d 572 (3d Cir. 2002)................................................................................................ 4 Stambler v. RSA Security, Inc., 243 F. Supp.2d 70 (D. Del. 2003)................................................................................... 5, 6

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NATURE AND STAGE OF THE PROCEEDING Document production was to be completed by August 31, 2007. D.I. 51 ("Scheduling Order") at 3. Fact discovery closed on February 8, 2008. D.I. 173, Ex. 1, 1/31/08 email between Blumenfeld and Marsden. Expert discovery concluded on May 9, 2008, with initial expert reports due on March 14 and rebuttal reports due April 18. D.I. 124. Opening summary judgment briefs were due May 16, 2008. The disclosure of fact witnesses occurred on June 9, 2008. Trial is set to begin on December 8, 2008. Polaroid moves to exclude as untimely new expert opinions and witnesses. SUMMARY OF ARGUMENT (1) The Court should exclude as untimely two categories of evidence recently and

untimely produced by HP: (a) the previously undisclosed expert opinions contained in a new declaration from HP's expert Dr. Rangaraj Rangayyan; and (b) witnesses not previously disclosed, including Chris Hayes, Jim Ruder, and Paul Ruiz. (2) HP's unjustified and inexcusable late disclosure of these new opinions and

witnesses has resulted in prejudice to Polaroid in deposing fact and expert witnesses, in summary judgment briefing, and in its expert reports and analysis. See, e.g., In re TMI Litigation, 193 F.3d 613, 722 (3d Cir. 1999); Praxair, Inc. v. ATMI, Inc., 445 F.Supp.2d 460, 471 (D. Del. 2006); Philips Elecs. N. Am. Corp. v. Contec Corp., No. Civ. A. 02-123-KAJ, 2004 WL 769371, at *1 (D. Del. Apr. 5, 2004). STATEMENT OF FACTS A. HP's Untimely Disclosure Of The New Rangayyan Declaration.

Under the Scheduling Order, HP's expert report on invalidity was due on March 14, 2008. HP submitted a report from Dr. Rangayyan on that date. D.I. 173, Ex. 4. HP also

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submitted a "supplemental" report on April 18, and an "errata" on May 9. Id., Exs. 2, 6.1 On June 5, in opposition to Polaroid's opening summary judgment briefing, HP submitted a new Rangayyan Declaration that includes additional expert opinions never before disclosed. See D.I. 188, Opp'n; D.I. 190, Decl. at ¶¶ 6­21 (offering opinions regarding prior art). With these new opinions, HP attempts to correct deficiencies in Rangayyan's expert report related to the motivation to combine references. See id. HP improperly relies on these new opinions in its opposition. See D.I. 188 at 16, 18­20, 22­29. B. HP's Untimely Disclosure Of Fact Witnesses.

HP's May 22, 2007 initial disclosures did not include Chris Hayes, Jim Ruder or Paul Ruiz. See Ex. A, HP's Initial Disclosures at 2­3. HP supplemented its initial disclosures during the last week of fact discovery on February 1, 2008, and after the close of fact discovery on March 18, 2008. At no time, however, did HP identify Hayes, Ruder, or Ruiz as individuals likely to have discoverable information. Ex. B, HP's First Supplemental Initial Disclosures at 2­ 4; Ex. C, HP's Second Supplemental Initial Disclosures at 2­4. On June 9, 2008 --after the close of fact discovery, after opening expert reports, and after the parties had exchanged summary judgment briefs -- HP disclosed Hayes, Ruder and Ruiz as fact witnesses to be called at trial, without any indication of the subject matter of their expected trial testimony. Ex. D, Defendant Hewlett-Packard Co.'s Disclosure of Fact Witnesses

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Because of HP's disregard of the Court's Scheduling Order, Polaroid filed a motion to preclude HP's use of, or reliance on, late-disclosed materials and opinions. D.I. 171 Motion; D.I. 172 Opening Br. ("First Motion"). Dr. Rangayyan's late-disclosed "supplement" and "errata" are among the materials that are the subject of Polaroid's First Motion. A significant number of other untimely HP materials are not addressed in Polaroid's First Motion or herein. To the extent that HP seeks to rely on these additional materials in motions, on its exhibit list, or in any other capacity, Polaroid reserves the right to seek to preclude those additional late materials at that time.

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("Witness List"). In response to Polaroid's objection to these late witnesses, HP has confirmed that it intends to call these witnesses at trial and states that it may even add more new witnesses to its list. Ex. E, 6/17/2008 Higer Ltr. to Bernstein; Ex. F, 6/19/08 Bernstein Email to Higer. ARGUMENT I. THE LEGAL STANDARD FOR A MOTION TO PRECLUDE SUPPORTS EXCLUSION.

"If a party fails to provide information or identify a witness as required by [the rules of discovery], 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." Fed. R. Civ. P. 37(c)(1). Rule 37(c) "`was added to the Rules to serve as an `automatic sanction' intended to provide `a strong inducement for disclosure of material that the disclosing party would expect to use as evidence[.]'" Philips 2004 WL 769371, at *1 (citing Advisory

Committee Note to 1993 Amendments). The party seeking to submit and rely on late material is not simply excused for using its "best efforts" to provide the material on time, and instead, has the burden of providing a reasonable justification for its delay. Id. ("An `A' for effort does not excuse CMT's failure to abide by its disclosure obligations."). Because "`fidelity to the constraints of Scheduling Orders and deadlines is critical to the Court's management responsibilities,'" this Court has frequently excluded late produced material. See, e.g., Praxair, Inc. v. ATMI, Inc., 231 F.R.D. 457, 463 (D. Del. 2005) (quoting Finch v. Hercules, Inc., No. Civ. A 92-251 MMS, 1995 WL 785100 at *9 (D. Del. Dec. 22, 1995) (The "flouting of discovery deadlines causes substantial harm to the judicial system")); Bridgestone Sports Co., Ltd. v. Acushnet Co., No. Civ. A. 05-132 JJF, 2007 WL 521894, at *4 (D. Del. Feb. 15, 2007) (holding that the exclusion of critical evidence should not normally occur

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"absent a showing of willful deception or `flagrant disregard' of a court order by the proponent of the evidence"). Factors courts consider in deciding whether exclusion is appropriate include the party's ability to have discovered the materials earlier, the validity of the excuse offered, the willfulness of the failure to comply with the court's order, the party's intent to mislead or confuse his adversary, and the importance of the excluded materials. Praxair, 231 F.R.D. at 463 (discussing Pennypack factors). Based on these considerations, the court weighs: (1) the prejudice or surprise to the non-disclosing party; (2) the ability to cure the prejudice; (3) the extent to which allowing the belatedly produced material would disrupt trial; and (4) bad faith or willfulness in failing to comply with the court's order. Id.; Aventis Pharm. Inc. v. Barr Laboratories, Inc., C.A. No. 06-286-GMS (D. Del. May 16, 2008). As is the case here, "[c]ourts applying the Pennypack factors in the case of sophisticated, complex litigation involving the parties represented by competent counsel have been less indulgent in their application and more willing to exclude evidence without a strict showing that each of the Pennypack factors has been satisfied." Bridgestone Sports Co., 2007 WL 521894, at *4; Aventis, C.A. No. 06-286-GMS (D. Del. May 16, 2008) (granting motion to preclude plaintiff from asserting an invention date that differed from the date disclosed during discovery). II. THE PENNYPACK FACTORS SUPPORT EXCLUSION OF THE RANGAYYAN DECLARATION AND WITNESSES.

The Rangayyan Declaration was submitted almost three months after the due date for expert reports and HP has provided no justification for the delay. The portion of Rangayyan's Declaration containing new invalidity opinions (¶¶ 6­21) should be stricken and HP should be precluded from making the arguments raised for the first time in that declaration at trial or in summary judgment. See Chimie v. PPG Industries, Inc., 402 F.3d 1371, 1374­75 (Fed. Cir. 4

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2005) (excluding untimely evidence proffered to rebut summary judgment); Anchor Wall Sys., Inc. v. Rockwood Retaining Walls, Inc., 340 F.3d 1298, 1313­14 (Fed. Cir. 2003) (finding no genuine issue of material fact for trial after striking expert declaration as untimely); Praxair, 231 F.R.D. at 463 (excluding an expert's supplemental report because it was filed a month after the close of discovery); In re TMI Litigation, 193 F.3d at 721-22; Amaya v. York Hospital, Civil Action No. 1:04-CV-1081, 2005 WL 5988683, at *1-2 (M.D. Pa., Dec. 28, 2005). HP also should not be permitted to introduce any evidence or testimony through Hayes, Ruder, or Ruiz, who were disclosed after the close of discovery. See Praxair, 445 F.Supp.2d at 471; Stambler v. RSA Security, Inc., 243 F. Supp.2d 70, 73 (D. Del. 2003) (excluding testimony because defendants failed to identify the individual as a potential trial witness in a timely manner). A. Incurable Prejudice To Polaroid Favors Exclusion.

HP's late-disclosed expert opinions and witnesses have prejudiced Polaroid. See, e.g., Bridgestone, 2007 WL 521894, at *5 (finding prejudice and declining to modify the scheduling order where plaintiff would be required to conduct additional fact and expert discovery to formulate a proper response to late-disclosed materials); Praxair, 445 F.Supp.2d at 471 (excluding a witness disclosed months after the close of fact discovery because the witness had never been disclosed as having knowledge, Praxair did not have the opportunity to take a proper deposition or follow-up with discovery, and ATMI had no justification for delay). Not only was Polaroid denied the opportunity to depose Rangayyan on his new opinions or to use such material in its summary judgment briefing, but HP has improperly relied on these untimely opinions in a summary judgment opposition. See, e.g., In re TMI Litigation, 193 F.3d at 721-22.

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Similarly, Polaroid has been prejudiced by HP's identification of Hayes, Ruder, and Ruiz as fact witnesses. See, e.g., Praxair, 445 F.Supp.2d at 471; Stambler, 243 F. Supp.2d at 73 (excluding the testimony of one of defendants' witnesses because defendants failed to identify the witness as a potential trial witness in a timely manner). Polaroid has been deprived of an opportunity to take a proper deposition of these witnesses, to propound follow-up discovery, or to use any of the admissions or discovery materials it could have sought in expert reports or in support of, or defense against, summary judgment motions. Allowing the new Rangayyan Declaration and witnesses would require the reopening of fact discovery (including depositions), a re-do of expert reports, expert rebuttal reports and associated expert discovery, and rewriting and resubmission of summary judgment motions. This expensive and time consuming process would be an unreasonable accommodation for HP particularly where HP has no reasonable justification for its failure to provide this information during discovery. Praxair, 445 F.Supp.2d at 471. Even if all of these events and "re-do's" caused by HP's delay were allowed, Polaroid would still be prejudiced by the additional costs necessitated by reopening discovery and any change to the current trial date. See id. at 470 ("The only way to have cured this untimely disclosure was to extend discovery and reschedule trial, a resolution patently unfair to plaintiff."). As a result, the prejudice to Polaroid cannot be cured. B. HP's Conduct Evidencing Bad Faith And Willfulness Favors Exclusion.

HP's conduct evidences bad faith and a continuing willful disregard for the Scheduling Order. HP's conduct in repeatedly serving late-disclosed expert opinions and failing to disclose fact witnesses evidences HP's bad faith.

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CONCLUSION For the foregoing reasons, Polaroid respectfully requests that this Court grant its motion to preclude.

MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Julia Heaney
OF COUNSEL: Russell E. Levine, P.C. G. Courtney Holohan Michelle W. Skinner David W. Higer Maria A. Meginnes KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, IL 60601 (312) 861-2000 June 25, 2008
2383896

Jack B. Blumenfeld (#1014) Julia Heaney (#3052) 1201 N. Market Street Wilmington, Delaware 19801 (302) 658-9200 [email protected] [email protected] Attorneys for Plaintiff, Polaroid Corporation

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CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on June 25, 2008, I electronically filed the foregoing with the Clerk of the Court using CM/ECF, which will send notification of such filing(s) to the following: William J. Marsden, Jr. FISH & RICHARDSON P.C. I also certify that copies were caused to be served on June 25, 2008 upon the following in the manner indicated: BY E-MAIL William J. Marsden, Jr. FISH & RICHARDSON P.C. 919 N. Market Street, Suite 1100 Wilmington, DE 19801 Matthew Bernstein John E. Giust MINTZ LEVIN COHN FERRIS GLOVSKY AND
POPEO PC

Bradley Coburn FISH & RICHARDSON P.C. One Congress Plaza, Suite 810 111 Congress Avenue Austin, TX 78701 Daniel Winston CHOATE HALL & STEWARD, LLP Two International Place Boston, MA 02110

5355 Mira Sorrento Place Suite 600 San Diego, CA 92121-3039

/s/ Julia Heaney
Julia Heaney (#3052)

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Exhibit A

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Exhibit B

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Exhibit C

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Exhibit D

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE POLAROID CORPORATION, Plaintiff and Counterclaim Defendant, v. HEWLETT-PACKARD COMPANY, Defendant and Counterclaim Plaintiff. C.A. No. 06-738-SLR

DEFENDANT HEWLETT-PACKARD COMPANY'S DISCLOSURE OF FACT WITNESSES Defendant Hewlett-Packard Company ("HP") hereby submits the following disclosure of fact witnesses and expert witnesses who may give fact testimony, pursuant to Paragraph 3(f) of the Court's Scheduling Order filed April 24, 2007. HP specifically reserves the right to supplement or amend this list by adding by adding or removing fact witnesses as appropriate. To the extent anything in the reports or deposition testimony of HP' experts could be construed to be fact testimony, HP reserves the right to call the s experts to testify regarding the substance of what was disclosed in their expert reports and in their depositions. In addition to the witnesses identified by name below, HP also reserves the right to call at trial any individuals identified in Polaroid Corporation' s disclosure of fact witnesses. Subject to these representations, HP identifies the following individuals as potential fact witnesses: · · · · · · · Bailey, Rusty Berge, Tom Bhaskar, Ranjit Bullitt, Julian Cazier, Robb Dansky, Michael Dogan, Eleanore

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· · · · · · · · · · · · · · · · · · · · ·

Fredrickson, Paul Goldman, William Greer, Steve Haasl-Martinez, Ted Hayes, Chris Kullberg, Brad Lee, Juli Levinstone, Donald Lorenz, Lori Lyons, Jim Moore, Charles Moroney, Nathan Reiling, Ron Roman, Ed Ruder, Jim Ruiz, Paul Schioldager, Richard Srinivisan, Anand Tabar, Anton Thornton, Jay Yennadhiou, Peter

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Dated: June 9, 2008

FISH & RICHARDSON P.C.

By: /s/ William J. Marsden, Jr. William J. Marsden, Jr. (#2247) Raymond N. Scott, Jr. (#4949) 919 N. Market Street, Suite 1100 P.O. Box 1114 Wilmington, DE 19899-1114 Tel: (302) 652-5070 Fax: (302) 652-0607 Robert S. Frank, Jr. Daniel C. Winston CHOATE, HALL & STEWART LLP Two International Place Boston, MA 02109 Tel.: (617) 248-5000 Fax: (617) 248-4000 John E. Giust Matthew E. Bernstein MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO PC 3580 Carmel Mountain Road, Suite 300 San Diego, CA 92130 858-314-1500 - telephone 858-314-1501 ­ facsimile Attorneys for Plaintiff HEWLETT-PACKARD COMPANY

80061650 (2).doc

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CERTIFICATE OF SERVICE I hereby certify that on June 9, 2008, I served DEFENDANT HEWLETTPACKARD COMPANY'S DISCLOSURE OF FACT WITNESSES to the following counsel: Via Email Jack B. Blumenfeld (#1014) Julia Heaney (#3052) Morris, Nichols, Arsht & Tunnell, LLP 1201 North Market Street Wilmington, DE 19899-1347 Phone: 302-658-9200 Fax: 302-658-3989 Emails: [email protected]; [email protected] Attorneys for Plaintiff and Counterclaim-Defendant Polaroid Corporation

In addition, service will be made on the following counsel of record as indicated: Via Email Russell E. Levine, P.C. Michelle W. Skinner/David W. Higer Maria A. Meginnes/Courtney Holohan/C. Beasley Kirkland & Ellis LLP 200 East Randolph Drive Chicago, IL 60601 Phone: 312-861-2000 Fax: 312-861-2200 Emails: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected] Courtesy Copy Via Federal Express Michelle W. Skinner Kirkland & Ellis LLP 200 East Randolph Drive Chicago, IL 60601 Phone: 312-861-2000 Fax: 312-861-2200 /s/ William J. Marsden, Jr. William J. Marsden, Jr. Attorneys for Plaintiff and Counterclaim-Defendant Polaroid Corporation

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Exhibit E

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Exhibit F

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