In this patent infringement action, the plaintiff filed a motion to exclude the defendants' claim construction experts. The plaintiff's motion was based on the argument that the defendants' disclosures did not comply with local rules in that they did not identify the actual opinions of the experts.
The district court agreed with plaintiff's position. "After consideration of the briefing and of Defendants' expert disclosures, the Court agrees with Plaintiff that Defendants' disclosures do not comply with Local Rule 4.2.d.2. insofar as Defendants simply identify the general subjects on which their experts may testify, but do not identify the actual opinions Defendants expect the experts to offer."
The district court, however, stopped short of excluding the experts, finding that exclusion was a drastic remedy. "Nevertheless, exclusion of the experts is a drastic remedy that is not appropriate in light of the early stage of the proceedings. Therefore, it is hereby ORDERED that the motions are DENIED without prejudice."
The district court therefore permitted the defendants to remedy the defective disclosures, but cautioned that failure to do so could result in subsequent exclusion. "However, it is further ORDERED that Defendants must supplement their expert disclosures to bring them into compliance with Rule 4.2.d.2, including in particular, summarizing the actual opinions Defendants expect the experts to offer."
The district court also provided an example. "By way of example, instead of the current statements in the claim construction charts that an expert "may provide a declaration and/or testimony explaining the meaning this term would have to one of ordinary skill in the art at the time of the alleged invention" [See, e.g., Doc. No. 55-1 at pp. 1-2 from Case No. 13-cv-2323], Defendants' supplemental disclosures must summarize the expert's actual expected testimony concerning the respective term's meaning. This concept applies to any opinions Defendants intend to offer from their experts. Defendants' must file and serve these supplemental disclosures on or before January 23, 2015."
The district court then concluded that a failure to comply with the order could result in exclusion of the experts.
SPH America, LLC v. AT&T Mobility, LLC, Case No. 13cv2318-CAB (KSC) (S.D. Cal. Jan. 19, 2015)