Largan Precision Co, LTD v. Motorola Mobility, LLC.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LARGAN PRECISION CO, LTD, Case No. 21-cv-09138-JSW

8 Plaintiff, ORDER DENYING MOTION TO 9 v. STRIKE EXPERT REPORT OF JAMES SHANLEY, PH.D. 10 MOTOROLA MOBILITY LLC., Re: Dkt. No. 99 Defendant. 11

12 13 Now before the Court for consideration is the motion to strike the expert report of James 14 Shanley, Ph.D., filed by Plaintiff Largan Precision Co., Ltd. (“Largan”). The Court has 15 considered the parties’ papers, relevant legal authority, and the record in this case, and it finds this 16 matter suitable for disposition without oral argument. See N.D. Civ. L.R. 7-1(b). For the 17 following reasons, the Court DENIES Largan’s motion. 18 BACKGROUND 19 The Court issued a Case Management Order (Dkt. No. 92) setting an October 20, 2023 20 deadline for the parties to serve their respective expert reports for claim construction in connection 21 with Patent Local Rule 4-3. The Case Management Order further stated: 22 No provision of this order may be changed except by written order of this Court upon its own motion or upon motion of one or more parties made pursuant to Civil L.R. 7-1 upon a 23 showing of very good cause. . . . If the modification sought is an extension of a deadline contained herein, the motion must be brought before expiration of that deadline. . . . The 24 parties are advised that if they stipulate to a change in the discovery schedule, they do so at their own risk. The only discovery schedule that the Court will enforce is the one set in 25 this order. 26 (Dkt. No. 92, at 3.) 27 On October 20, 2023, Largan served Defendant Motorola Mobility LLC (“Motorola”) with 1 Motorola served Largan with Dr. Shanley’s expert report on October 24, 2023—four days 2 too late. Motorola did not submit a motion to modify the disclosure deadline prior to October 20, 3 2023 (or at all), and it appears to have erroneously believed that Rule 4-3’s deadline continued to 4 govern disclosure of the expert reports. Motorola points out that the parties mutually extended the 5 deadline to serve expert reports in 2022 without obtaining Court approval. 6 Motorola’s counsel submitted a declaration stating that Motorola has not provided a copy 7 of Dr. Bentley’s expert report to Dr. Shanley. (Dkt. No. 102-1, ¶ 6.) Motorola’s counsel further 8 declared under penalty of perjury that he offered to provide a redline of changes made to Dr. 9 Shanley’s report between October 20 and October 24, that the expert report is less than 10 pages 10 long, and that the parties agree that any deposition of Dr. Shanley would take less than two hours. 11 (Id. ¶¶ 8-9.) Finally, Motorola submitted a redlined version of the report. The redline shows no 12 significant changes made during the four days of delinquency. (Dkt. No. 102-5.) 13 Largan now moves to strike Dr. Shanley’s report on the basis that it is untimely. 14 Additionally, Largan requests the Court enter a ruling adopting Largan’s construction for the 15 “convex/concave . . . surface” term on the basis that Motorola does not propose a competing 16 construction for the term. 17 ANALYSIS 18 A district court has discretion to impose sanctions for failure to comply with its scheduling 19 orders. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) 20 (giving “particularly wide latitude to the district court’s discretion”). Under Rule 37(c)(1), a party 21 who fails to provide information required by Rule 26(a) or (e) “is not allowed to use that 22 information. . . unless the failure was substantially justified or is harmless.” Fed. R. Civ. Proc. 23 37(c)(1). Even so, striking an expert report is an “extreme remedy.” BLK Enters., LLC v. Unix 24 Packaging, Inc., No. CV 18-2151-SVW (KS), 2018 WL 5993839, at *3 (C.D. Cal. Oct. 2, 2018). 25 Largan argues that any failure to comply with a scheduling order, no matter how minimal, 26 merits sanctions. It cites Wong v. Regents of University of California, 410 F.3d 1052, 1062 (9th 27 Cir. 2005) for the proposition that “[d]isruption to the schedule of the court and other parties . . . is 1 one week late. See Guangzhou Yucheng Trading Co., Ltd. v. Dbest Prods., Inc., 644 F. Supp. 3d 2 ||} 637, 655 (C.D. Cal. 2022). In particular, Largan contends that Motorola unfairly used Dr. 3 Bentley’s report to strengthen Dr. Shanley’s report. 4 Motorola responds that any delay was harmless, and that the parties’ course of conduct 5 || justified its interpretation of the scheduling order. 6 The Court agrees that the delay was harmless. Wong and Dbest do not aid Largan. In 7 Wong, the plaintiff missed the deadline to disclose expert witnesses by more than two months. 8 || 410 F.3d at 1058-59. In Dbest, the defendant waited until after summary judgment motions were 9 || filed to serve its rebuttal expert report. 644 F. Supp. 3d at 656. The defendant’s gamesmanship 10 || caused the district court to continue all of the summary judgment-related motions by two weeks 11 and threatened to delay the trial schedule. 12 Here, in contrast, Motorola submitted its report only four days late. No major case 13 deadlines elapsed during that time. Moreover, Dr. Shanley’s report is short. Largan needs only a 14 || few hours to depose Dr. Shanley, which it has arranged to do prior to close of claim construction 3 15 discovery. Because Largan has sufficient opportunity to rebut Dr. Shanley’s report, it has failed to a 16 || show prejudice. The Court will not resort to the extreme remedy of striking Dr. Shanley’s report 2 17 || over four days and a handful of immaterial edits. Z 18 The Court cautions that prior course of conduct does not alter scheduling orders. Dbest, 19 || 644 F. Supp. 3d at 656. The Case Management Order superseded Local Patent Rule 4-3 for the 20 || deadline to exchange expert reports. The parties should adhere to this Court’s orders moving 21 forward. 22 CONCLUSION 23 For the foregoing reasons, Largan’s Motion to Strike is DENIED. 24 IT ISSO ORDERED. 25 Dated: November 17, 2023 SO } JEEFREY/§. WHITE 27 United Sates’ Digdrict Judge 28