Defendant filed a motion to strike plaintiff's expert report on infringement, asserting that the report failed to comply with Fed.R.Civ.P. 26 because, among other things, the report did not constitute a written report under Rule 26. Instead, the plaintiff had provided a declaration from its CEO, who was also the inventor of the patents-in-suit.

The district court began its analysis by noting that "Rule 26 of the Federal Rules of Civil Procedure provides that an expert witness must provide a written report to the other parties 'if the witness is one retained or specifically employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.' FED. R. Civ. P. 26(a)(2)(B). The Declaration of Mr. Paul Marshall states that Chief Executive Officer of Plaintiff Maxus Strategic Systems, Inc. ("Maxus") and inventor of the patents in suit in this cause."

The declaration provided by the CEO rendered an opinion that Defendant Aqumin LLC ("Aqumin")'s AlphaVision product infringed the claims of the patents in suit.

Aqumin did not allege that the CEO was retained or specifically employed to provide expert testimony in the case or that duties regularly involve giving expert testimony. As a result, the district court concluded that "[f]rom the face of the declaration, the court concludes that Marshall is an employee of Maxus, but the court finds no evidence that Marshall's employment regularly involves giving expert testimony. Because Marshall does not qualify as a witness whose duties as the party's employee regularly involve giving expert testimony, the court finds that Marshall is not required submit a report in accordance with Rule 26(a)(2)(B)."

Accordingly, the district court denied the motion to exclude.

Maxus Strategic Systems, Inc. v. Aqumin LLC, Case No. A-11-CV-073-LY (W.D. Tex. Aug. 14, 2015)