Case 3:15-cv-00700-JLS-NLS Document 81 Filed 12/16/16 Page 1 of 11
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`BLAST MOTION, INC., a California
`corporation,
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`Plaintiff,
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`v.
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`ZEPP LABS, INC., a Delaware
`corporation,
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`Defendant.
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` Case No.: 15-CV-700 JLS (NLS)
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`ORDER DENYING PLAINTIFF
`BLAST MOTION, INC.’S RENEWED
`MOTION TO PRECLUDE EXPERT
`TESTIMONY
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`(ECF No. 68)
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`Presently before the Court is Plaintiff Blast Motion, Inc.’s Renewed Motion to
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`Preclude Claim Construction Expert Testimony. (“Mot.,” ECF No. 68.) Also before the
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`Court are Defendant Zepp Labs, Inc.’s Response in Opposition to, (“Opp’n,” ECF No. 75),
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`and Plaintiff’s Reply in Support of Plaintiff’s Motion, (“Reply,” ECF No. 76). The Court
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`vacated the hearing on the matter and took it under submission pursuant to Civil Local Rule
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`7.1(d)(1). (ECF No. 72.) After considering the parties’ arguments and the law, the Court
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`DENIES Plaintiff’s Renewed Motion to Preclude Expert Testimony.
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`The Court set the following claim construction schedule pursuant to the Court’s
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`BACKGROUND
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`Scheduling Order, (ECF Nos. 28, 42):
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`Action
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`Due Date
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`Exchange List of Proposed Claim Terms
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`November 16, 2015
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`Exchange Preliminary Constructions (Patent L.R. 4.1(a)) and
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`November 20, 2015
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`Identify Extrinsic Evidence (Patent L.R. 4.1(b))
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`Exchange Responsive Constructions (Patent L.R. 4.1(c)) and
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`December 11, 2015
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`Identify Extrinsic Evidence (Patent L.R. 4.1(d))
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`Complete and File Joint Claim Construction Chart, Joint
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`December 21, 2015
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`Claim Construction Worksheet, Joint Hearing Statement
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`(Patent L.R. 4.2)
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`Close of Claim Construction Discovery
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`Opening Claim Construction Briefs
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`Responsive Claim Construction Briefs
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`January 25, 2016
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`March 10, 2016
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`March 24, 2016
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`On November 20, 2015, the parties exchanged Preliminary Claim Constructions and
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`identified extrinsic evidence. (Mot. 5,1 ECF No. 68-1.) At that juncture, Defendant
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`provided a preliminary list of extrinsic evidence on which it would rely, including that it
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`intended to rely on testimony from its expert, Dr. Steven Nesbit, to support Defendant’s
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`claim construction positions. (Id.) Defendant also provided the following summary of the
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`substance of Dr. Nesbit’s testimony:
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`Dr. Nesbit will opine as to the level of understanding of a person of
`ordinary skill in the art at the relevant time, and how such a person
`would understand the meaning and scope of the claim terms identified
`in the charts above. Dr. Nesbit will also opine as to whether any terms
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`1 Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each
`page.
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`would not have been understood by a person of ordinary skill in the art
`as of the priority dates of the asserted patents and whether the
`specification is inadequate or fails to teach one of ordinary skill in the
`art to make and use the claimed invention.
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`(Opp’n 7, ECF No. 75 (citing Declaration of Lauren E. Whittemore (“Whittemore Decl.”),
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`Ex. A, at 6).)
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`On December 11, 2015, the parties exchanged responsive claim construction
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`positions, including their identifications of extrinsic evidence. (Mot. 5, ECF No. 68-1.) In
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`connection with these disclosures, Defendant stated that it intended to use additional
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`testimony from Dr. Nesbit regarding the disputed terms and content of Defendant’s
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`asserted patents. (Opp’n 7, ECF No. 75 (citing Whittemore Decl., Ex. B, at 7–8).) That
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`statement read:
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`Dr. Nesbit will opine as to the level of understanding of a person of
`ordinary skill in the art at the relevant time, and how such a person
`would understand the meaning and scope of the claim terms identified
`in the charts above. Dr. Nesbit will also opine as to whether the terms
`would be understandable to a person of ordinary skill in the art as of the
`priority dates of the ’441 Patent and the ’610 Patent, respectively, and
`whether the specification teaches one of ordinary skill in the art to make
`and use the claimed invention.
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`(Id.)
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`At no point during these preliminary exchanges did Plaintiff object to the substance
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`of Defendant’s above statements. To the contrary, Plaintiff acknowledged Defendant’s
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`disclosure and stated that “[w]hile [Plaintiff] does not believe any expert testimony is
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`needed, [Plaintiff] hereby reserves the right to offer rebuttal expert testimony to rebut any
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`[Defendant] expert testimony, to the extent [Plaintiff] finds such rebuttal testimony
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`necessary.” (Id. (citing Ex. C, at 29).) On December 18, 2015, Plaintiff emailed Defendant
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`disclosing Dr. Kenneth A. Zeger as an expert and stated that “[w]hile [Plaintiff] maintains
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`the position that expert testimony is not necessary for these claim construction proceedings,
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`[Plaintiff] would reserve the right to use Dr. Zeger for rebuttal expert testimony to the
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`extent [Defendant] intends to introduce any such testimony.” (Opp’n 8, ECF No. 75.)
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`The parties met and conferred to finalize the Joint Claim Construction Worksheet,
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`Sheets and Hearing Statement, which they filed on December 21, 2015. (Mot. 5, ECF No.
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`68-1.) In the Joint Hearing Statement, Defendant again indicated that it would rely on the
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`expert testimony of Dr. Nesbit in connection with its claim construction positions. (Id.)
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`That statement read:
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`Zepp proposes to call Dr. Steve Nesbit to provide testimony regarding
`the understanding of one of ordinary skill in the art as to the meaning
`of the proposed terms for construction. Dr. Nesbit will testify that based
`on teachings in U.S. Pat. No. 8,989,441 and knowledge of one of
`ordinary skill in the art, he understands what the “modules” are as well
`as the scope of claims including the “module” terms. Dr. Nesbit will
`also testify that the use of “said data” in U.S. Pat. Nos. 8,944,928,
`8,905,855, 8,941,723, and 8,903,521 is indefinite due to a lack of a clear
`antecedent basis. Specifically, Dr. Nesbit will testify that based on the
`disclosures in the Blast Motion patents as well as the language of the
`claims, it would not be clear to one of ordinary skill in the art what “said
`data” refers to in the claims. Dr. Nesbit will also testify as to the
`meaning of the terms “avatar” and “virtual reality display/virtual reality
`system” to one of ordinary skill in the art based on the teachings in the
`’928 and ’855 patents and the statements made during prosecution of
`those patents. Finally, Dr. Nesbit will also testify that based on the
`disclosures and knowledge of one of ordinary skill in the art he does
`not understand the scope of the claims including the term “slow motion
`display…at normal speed.” Zepp reserves the right to call Dr. Nesbit to
`the stand to provide rebuttal testimony, if required.
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`(ECF No. 38, at 8–9.)
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`In a draft prior to filing the Joint Hearing Statement, Plaintiff officially objected to
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`Defendant’s use of Dr. Nesbit’s testimony on the grounds that the Patent Local Rules
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`require a more substantive disclosure so that Plaintiff could determine if it disputed Dr.
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`Nesbit’s positions and/or whether it needed a rebuttal expert. (Mot. 6, ECF No. 68-1 (citing
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`ECF No. 38, at 9); Opp’n 8–9, ECF No. 75.) Thus, Plaintiff requested that there be no
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`expert testimony at the claim construction hearing and alternatively reserved its right to
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`provide rebuttal expert testimony. (Mot. 6, ECF No. 68-1.) At no point during this time
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`did Defendant supplement its statements regarding Dr. Nesbit’s testimony, nor did
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`Defendant provide Plaintiff with Dr. Nesbit’s CV. (Id.) Claim construction discovery
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`concluded on January 25, 2016. (ECF No. 28.) Plaintiff never issued a notice of deposition
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`or propounded any discovery relating to Dr. Nesbit or his testimony. (Opp’n 9, ECF No.
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`75.)
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`On March 21, 2016, Plaintiff filed its original Motion to Preclude Claim
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`Construction Expert Testimony. (ECF No. 56.) The Court denied as moot Plaintiff’s
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`original motion after it issued a stay of the case on March 29, 2016. (ECF No. 62.) On
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`October 4, 2016, roughly a month after the Court lifted the stay, (ECF No. 66), Plaintiff
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`filed the instant Renewed Motion to Preclude Claim Construction Expert Testimony. (ECF
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`No. 68.)
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`LEGAL STANDARD
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`Federal Rule of Civil Procedure 12(f) permits a court to “strike from a pleading an
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`insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.
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`R. Civ. P. 12(f).2 The function of a motion to strike is to avoid the unnecessary
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`expenditures that arise throughout litigation by dispensing of any spurious issues prior to
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`trial. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). However,
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`courts generally disfavor motions to strike “because of the limited importance of pleading
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`in federal practice, and because they are often used as a delaying tactic.” Neilson v. Union
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`Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003); see also State of Cal. ex
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`rel State Lands Comm’n v. United States, 512 F. Supp. 36, 38 (N.D. Cal. 1981) (“Motions
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`2 Plaintiff characterizes its motion as a motion to strike. (Mot. 4 n.1, ECF No. 68-1.) Accordingly, the
`Court considers Plaintiff’s arguments with this standard in mind.
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`to strike are often looked on with disfavor because of the tendency for such motions to be
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`asserted for dilatory purposes.”).
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`Moreover, the motion “should not be granted unless the matter to be stricken clearly
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`could have no possible bearing on the subject of the litigation. If there is any doubt whether
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`the portion to be stricken might bear on an issue in the litigation, the court should deny the
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`motion.” Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004)
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`(citations omitted). Courts should freely grant leave to amend stricken pleadings, unless
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`doing so would prejudice the opposing party. Wyshak v. City Nat’l Bank, 607 F.2d 824,
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`826 (9th Cir. 1979). “Ultimately, whether to grant a motion to strike lies within the sound
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`discretion of the district court,” Neilson, 290 F. Supp. 2d at 1152, and the court “views the
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`pleadings in the light most favorable to the non-moving party,” id. “This is particularly
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`true if the moving party demonstrates no resulting prejudice,” id., and “[e]xclusion of
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`testimony for failure to make required disclosure should only be imposed if the party
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`seeking exclusion suffered some prejudice.” DR Sys., Inc. v. Eastman Kodak Co., No. 08-
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`CV-669-H (BLM), 2009 WL 3756765, at *14 (S.D. Cal. Nov. 9, 2009) (citing Pfingston v.
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`Ronan Eng’g Co., 284 F.3d 999, 1005 (9th Cir. 2002)).
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`ANALYSIS
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`Plaintiff moves to preclude Dr. Nesbit’s expert declaration in support of
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`Defendant’s claim construction positions and any upcoming testimony at the claim
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`construction hearing (collectively, “testimony”) either because (1) Defendant failed to
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`timely provide the substance of Dr. Nesbit’s testimony, or, in the alternative, (2) Dr.
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`Nesbit’s “opinions” are unsupported legal conclusions. (Mot. 14–15, ECF No. 68-1.) The
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`Court considers each argument in turn.
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`I. Whether Dr. Nesbit’s Testimony Is Procedurally Admissible
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`Plaintiff argues that Defendant’s disclosures of Dr. Nesbit’s testimony fail to satisfy
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`Patent Local Rules 4.1 and 4.2, which thus precluded Plaintiff from conducting meaningful
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`discovery of Dr. Nesbit before the end of claim construction discovery. (Mot. 6–9, ECF
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`No. 68-1; Reply 5–10, ECF No. 76.) Defendant argues that its disclosures are sufficient
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`under the Patent Local Rules, (Opp’n 13–20, ECF No. 75), and, alternatively, that
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`Plaintiff’s motion should be denied based on Plaintiff’s failure to satisfy the meet and
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`confer requirements of Civil Local Rule 26.1, (id. at 10–13).
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`The Patent Local Rules apply to all civil actions filed in this court which, among
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`other things, allege infringement of a patent. Patent L.R. 1.3. However, the court “may
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`accelerate, extend[,] eliminate, or modify the obligations or deadlines set forth in these
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`Patent Local Rules based on the court’s schedule or the circumstances of any particular
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`case, including, without limitation, the complexity of the case or the number of patents,
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`claims, products, or parties involved.” Id.
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`In connection with the exchange of their Preliminary and Responsive Claim
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`Constructions, the parties “must also provide a preliminary identification of extrinsic
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`evidence, including . . . testimony of percipient and expert witnesses they contend support
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`their” claim constructions. Patent L.R. 4.1(b), (d). For expert witness testimony, the Patent
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`Local Rules further require that the parties “provide a brief description of the substance of
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`that witness’s proposed testimony.” Id.
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`Patent L.R. 4.2(b), parties are again required to “identify any extrinsic evidence known to
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`the party on which it intends to rely either to support its proposed construction of the claim
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`or to oppose any party’s proposed construction of the claim, including . . . testimony of
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`percipient and expert witnesses.” The Joint Hearing Statement must further include
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`“[w]hether any party proposes to call one or more witnesses, including experts, at the Claim
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`Construction Hearing, the identify [sic] of each such witness, and for each expert, a
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`summary of each opinion to be offered in sufficient detail to permit a meaningful
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`deposition of that expert . . . .” Id. at 4.2(d).
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`First, the Court finds that Defendant’s expert witness disclosures are sufficient under
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`the requirements for filing its Preliminary and Responsive Claim Constructions. The
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`expert disclosures for the Preliminary and Responsive Claim Constructions simply require
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`“a brief description of the substance of that witness’s proposed testimony.” Patent L.R.
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`4.1(b), (d). Defendant’s disclosure of Dr. Nesbit’s testimony satisfies this requirement.
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`Specifically, Defendant’s statement (1) identified Dr. Nesbit, (2) notified Plaintiff that Dr.
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`Nesbit would opine as to the level of understanding of a person of ordinary skill in the art
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`at the relevant time as to (3) the meaning and scope of the claim terms during their priority
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`dates, and (4) whether the specification is inadequate or fails to enable the claims. The
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`Court finds that this is an adequate “brief description of the substance” of Dr. Nesbit’s
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`testimony.
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`Equally as important, Plaintiff did not object to these disclosures prior to the filing
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`of the Joint Hearing Statement. To the contrary, Plaintiff acknowledged receipt of these
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`disclosures and simply reserved the right to offer rebuttal expert testimony, which it
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`eventually did, (see ECF No. 59-1 (Declaration of Kenneth A. Zeger in Support of Plaintiff
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`Blast Motion’s Responsive Claim Construction Brief)). Thus, the Court finds that Plaintiff
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`suffered no prejudice with regard to Defendant’s expert disclosures at the Preliminary and
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`Responsive Claim Construction stages. Accordingly, Plaintiff’s disclosures satisfy the
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`requirements of Patent Local Rules 4.1(b) and (d).
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`Second, with regard to Defendant’s expert disclosure submitted in conjunction with
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`the parties’ Joint Hearing Statement, the Court declines to assess whether its disclosure
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`satisfies Patent Local Rule 4.2(d) because the Court concludes that Plaintiff failed to satisfy
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`its meet and confer obligations pursuant to Civil Local Rule 26.1.3 (Opp’n 10–13, ECF
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`No. 75.)
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`This is a discovery and disclosure dispute that triggers, among others, Federal Rule
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`of Civil Procedure 37 and Civil Local Rule 26.1. See Pulse Eng’g, Inc. v. Mascon, Inc.,
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`No. 08CV0595JM(AJB), 2009 WL 250058, at *3 (S.D. Cal. Feb. 3, 2009). Yet Plaintiff
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`fails to convince the Court that it satisfied its Civil Local Rule 26.1 obligations with respect
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`3 In so concluding, the Court agrees with Plaintiff that the “Southern District of California Patent Local
`Rules were created to avoid sandbagging the party with less information,” (Mot. 9, ECF No. 68-1), but
`the Court reminds Plaintiff—and others—that other Rules, including Civil Local Rule 26.1, similarly exist
`to avoid sandbagging the other party with less information (e.g., filing a motion to preclude without first
`notifying the party or even attempting to meet and confer).
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`to Defendant’s expert testimony disclosures. For one, Plaintiff’s objection to Defendant’s
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`disclosure occurred in a draft of the Joint Hearing Statement a few hours before it was filed.
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`This would be less concerning if Plaintiff thereafter sought to meet and confer with
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`Defendant regarding the disclosure. But Plaintiff apparently did not even attempt to meet
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`and confer with Defendant to remedy the issue before bringing a motion to this Court.
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`(Opp’n 12, ECF No. 75.) Nor did Plaintiff submit a certificate of compliance upon filing
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`either its original or its renewed motion pursuant to Civil Local Rule 26.1(b).4 Instead,
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`Plaintiff chose not to conduct any claim construction discovery related to Defendant’s
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`expert and filed its original Motion to Preclude on March 21, 2016, roughly two weeks
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`after the parties exchanged their opening claim construction briefs and a few days before
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`responsive briefs were due. (Id. (citing ECF Nos. 42, 48, 49, 56).)
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`Plaintiff responds that the “purpose of the meet and confer obligations under Civil
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`Local Rule 26.1 is to determine whether the parties may resolve the issues without resorting
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`to motion practice.” (Reply 13, ECF No. 76.) Thus, Plaintiff argues, it satisfied its
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`obligations “as soon as it realized that [Defendant] would not provide an adequate
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`‘summary of opinions to permit a meaningful deposition,’” which, apparently, was after
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`Plaintiff objected to Defendant’s disclosure in the Joint Hearing Statement and Defendant
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`responded that it believed its disclosure satisfied the Patent Local Rules.5 (Id.)
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`The Court is not convinced. That certainly is a purpose of Civil Local Rule 26.1.
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`But the Rule also exists to give the party notice of and an opportunity to cure any alleged
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`deficiency before the moving party, as Plaintiff puts it, “resort[s] to motion practice.” Here,
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`Plaintiff certainly documented its objection to Defendant’s expert disclosures, but there is
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`no indication that Plaintiff notified Defendant of its intention to file its motion to preclude,
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`much less any evidence that Plaintiff sought to meet and confer pursuant to Civil Local
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`4 Plaintiff admits as much. (Reply 14 n.3, ECF No. 76.)
`5 These electronic communications are separately insufficient under Civil Rule 26.1(a) because “[u]nder
`no circumstances may the parties satisfy the meet and confer requirement by exchanging written
`correspondence.”
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`Case 3:15-cv-00700-JLS-NLS Document 81 Filed 12/16/16 Page 10 of 11
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`Rule 26.1 in order to resolve this issue before filing the instant motion. Without more,
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`Defendant was left suspended in a world of infinite possibilities—including one where
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`perhaps Plaintiff’s objection would remain just that, or one where Plaintiff would file a
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`motion to preclude without first seeking to meet and confer, months after the close of claim
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`construction discovery. Then the latter happened. The Court will not reward such tactics.
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`Accordingly, because Plaintiff failed to make an effort to meet and confer—much less a
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`good faith effort6—regarding its concerns over Defendant’s expert disclosures, the Court
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`DENIES Plaintiff’s Amended Motion to Preclude Expert Testimony based on its
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`procedural arguments.7 Cf. GameTek LLC v. Facebook, Inc., No. 12-CV-501 BEN RBB,
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`2013 WL 1412195, at *2 (S.D. Cal. Apr. 8, 2013) (emphasis removed) (“Big Viking Games
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`does not assert that it requested the required meet and confer, nor does it otherwise address
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`this argument by GameTek. Because Big Viking Games was obligated to make a good
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`faith effort to meet and confer to resolve this dispute before bringing the present motion,
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`Big Viking Games’ Motion to Strike Undisclosed Construction and Extrinsic Evidence is
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`DENIED.”).
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`II. Whether Dr. Nesbit’s Testimony Is Substantively Admissible
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`Plaintiff also argues that Dr. Nesbit’s testimony should be precluded because he sets
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`6 As above, the Court separately denies Plaintiff’s motion on the grounds that whatever prejudice it claims
`to have suffered was largely self-inflicted. To illustrate, Plaintiff argues that the Court should grant its
`motion, in part, because Defendant did not provide Dr. Nesbit’s CV. (Mot. 6, ECF No. 68-1.) However,
`Plaintiff provides no authority demonstrating that Defendant was required to provide Dr. Nesbit’s CV.
`More importantly, if Plaintiff was so concerned over this lack of information, it should have asked for it.
`Indeed, Defendant notes that “had [Plaintiff] requested Dr. Nesbit’s CV during the claim construction
`discovery period, [Defendant] would have willingly produced it.” (Opp’n 16, ECF No. 75).
`7 Plaintiff argues that it made a good faith effort to meet and confer regarding its Renewed Motion to
`Preclude on September 20 and September 30, 2016. (Reply 14–15, ECF No. 76.) While the Court
`appreciates Plaintiff’s renewed compliance with Civil Local Rule 26.1, this does not, as Plaintiff suggests,
`“fully satisfy[] its obligations under Civil Local Rule 26.1” as to its renewed motion. (Reply 14 n.3, ECF
`No. 76.) That is because the core dispute between the parties—including their alleged respective failures
`to abide by certain local rules—took place prior to Plaintiff filing its original motion to preclude. In other
`words, Plaintiff’s recent meet and confer does not change the fact that Plaintiff failed to do so at a time
`where it would have had a more significant impact: namely, when the doors of expert claim construction
`discovery were wide open, yet ignored.
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`Case 3:15-cv-00700-JLS-NLS Document 81 Filed 12/16/16 Page 11 of 11
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`forth improper legal conclusions and only advances conclusory, irrelevant opinions. (Mot.
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`10–15, ECF No. 68-1; Reply 10–13, ECF No. 76). Defendant counters that Dr. Nesbit’s
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`testimony is proper and can be helpful to the Court in construing the disputed terms of the
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`parties’ patents. (Opp’n 20–27, ECF No. 78.)
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`The Court declines, at this juncture, to strike or otherwise preclude Dr. Nesbit’s
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`testimony under Plaintiff’s substantive arguments for inadmissibility. As Plaintiff
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`acknowledges, even if Dr. Nesbit’s opinions are legal in nature, “courts enjoy complete
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`discretion in expert testimony and may opt to ‘adopt the expert’s legal opinion as [the
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`court’s] own, to find guidance from it, or to ignore it entirely, or even to exclude it.’”
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`(Reply 13, ECF No. 76 (citing Markman v. Westview Instruments, Inc., 52 F.3d 967, 983
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`(Fed. Cir. 1995)).) Instead, the Court will consider the totality of Dr. Nesbit’s testimony
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`in construing the disputed claims and will accord it the weight the Court finds it deserves,
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`which is consistent with Plaintiff’s alternate request that “Dr. Nesbit’s conclusory,
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`unsupported testimony be accorded no weight,” (id.). See, e.g., Applied Signal Tech., Inc.
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`v. Emerging Markets Commc’ns, Inc., No. C-09-2180-SBA, 2011 WL 500786, at *3 (N.D.
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`Cal. Feb. 9, 2011) (citation omitted) (“The Court may hear all relevant testimony—
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`including expert testimony—so long as it does not accord weight to expert testimony which
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`contradicts the clear language of the claim.”). To that end, the Court is mindful of the
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`parties’ competing arguments regarding the substantive admissibility and usefulness of Dr.
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`Nesbit’s testimony, and the Court will consider these arguments—and others, including
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`Plaintiff’s rebuttal expert testimony—while construing the parties’ disputed terms.
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`CONCLUSION
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`For the foregoing reasons, the Court DENIES Plaintiff’s Renewed Motion to
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`Preclude Expert Testimony. (ECF No. 68.)
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`IT IS SO ORDERED.
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`Dated: December 16, 2016
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