Case 9:19-cv-81160-RS Document 936 Entered on FLSD Docket 05/26/2021 Page 1 of 8
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`Plaintiff,
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`APPLE INC.,
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`v.
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`CORELLIUM, LLC,
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`CASE NO: 9:19-cv-81160-RS
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`Defendant.
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`__________________________________/
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`DEFENDANT CORELLIUM, LLC’S RESPONSE IN OPPOSITION TO PLAINTIFF
`APPLE INC.’S MOTION FOR LEAVE TO FILE A MOTION IN LIMINE TO
`PRECLUDE CORELLIUM’S “DEMONSTRATIVE” THAT DOES
`NOT REPRESENT ITS ACTUAL PRODUCT
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`Defendant, Corellium, LLC (“Corellium”), by and through undersigned counsel, files this
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`Response in Opposition to Plaintiff Apple Inc.’s (“Apple”) Motion for Leave to File a Motion in
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`Limine to Preclude Corellium’s “Demonstrative” that does not Represent its Actual Product [ECF
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`No. 931] (the “Motion”), and in support states as follows:
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`COLE, SCOTT & KISSANE, P.A.
`ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX
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`Case 9:19-cv-81160-RS Document 936 Entered on FLSD Docket 05/26/2021 Page 2 of 8
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`I.
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`Introduction
`Plaintiff’s Motion should be denied because it proposes an improper motion in limine and
`has failed to show good cause to extend the Court’s deadline to file a motion in limine. The source
`code in question is intended solely as a demonstrative aid to facilitate the jury’s understanding of
`complex high-tech concepts at issue that will be the subject of testimony. It is not to be submitted
`as evidence or to the jury during deliberations. A motion in limine is an improper procedural
`vehicle to object to demonstrative aids. Moreover, the source code to be used to elucidate
`testimony has been disclosed to Plaintiff well in advance of trial; in fact, Plaintiff has had access
`to Corellium’s source code since April 2020 which contained the same source code as the
`demonstrative aid. Plaintiff has ample opportunity to prepare its cross-examination or other
`challenge to the aid within the context of trial as the testimony unfolds, during which time the
`Court can better assess its usefulness as an aid for the jury.
`Plaintiff’s proposed Motion is not only premature outside the context of trial testimony, it
`lacks merit on its face. Plaintiff has not and cannot make any showing that the only code that will
`not confuse the jury is the alleged product at issue. In fact, additional code could help the jury
`understand Corellium’s position that Apple does not have effective technological protection
`measures (“TPMs”) in place as iOS is able to run on non-Apple hardware without any patches or
`modifications. Further, the jury has every right to evaluate other code that may have been
`considered in the development of the product and/or contrasted or compared to the product in order
`to assist its understanding of a highly technical and specialized issue of computer science.
`Accordingly, the Plaintiff’s Motion should be denied.
`Factual Background
`On April 2020, Corellium produced its source code to Apple for review and inspection.
`ECF No. 909, at 4. In addition, on March 12, 2021, Corellium produced to Apple updates to its
`source code. Id., at 12. Importantly, on March 26, 2021, Corellium produced to Apple the source
`code to a “patchless” demonstrative aid it intends to use at trial (“demonstrative aid”). Wade Decl.
`¶ 3. Corellium was under no duty to produce this demonstrative aid and did so as a courtesy to
`Apple. To be clear, the demonstrative aid is Corellium’s source code without any patches. Id., ¶¶
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`II.
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`COLE, SCOTT & KISSANE, P.A.
`ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX
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`Case 9:19-cv-81160-RS Document 936 Entered on FLSD Docket 05/26/2021 Page 3 of 8
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`3, 6 This “patchless” change constitutes 138 lines of code that have been changed.1 Id., ¶ 6. The
`code was produced in a manner that makes it easy to identify which code has changed. Id., ¶¶ 4,
`5. This demonstrative aid containing Corellium’s code was created to accompany testimony
`explaining that the patches CORSEC includes are merely to provide its customers with a user-
`friendly security research environment for iOS, and have no effect relevant to the circumvention
`of Apple’s alleged TPMs. Id., ¶ 7. This testimony is at the heart of Corellium’s defense to the
`DMCA claims. Notably, Apple’s lack of effective TPMs is evidenced by this “patchless”
`demonstrative aid that allows iOS to run on non-Apple hardware without the alleged
`modifications. Wade Decl. ¶¶ 7, 8.
`Plaintiff admits that it has reviewed the demonstrative aid source code and even had its
`expert, Jason Nieh, inspect and scrutinize the demonstrative aid’s source code. Motion, at 2 and
`Ex. C. Corellium’s demonstrative aid contains the same source code that Apple has reviewed since
`at least April 2020, with the minor removal of patches. Wade Decl. ¶¶ 6-8. This demonstrative aid
`is highly relevant to the only issue in this case—Plaintiff’s DMCA claim—where Apple claims
`Corellium uses patches or modifications to circumvent Apple’s TPMs.
`III. Legal Argument
`Even if Plaintiff’s proposed motion were a proper motion in limine (it is not), “[a] motion
`for leave to file a motion in limine beyond [Court’s] deadline is effectively a motion seeking to
`modify [the Court’s] deadline.” Horowitch v. Diamond Aircraft Indus., Inc., No. 6:06-cv-1703,
`2009 WL 3790415, at *3 (M.D. Fla. Nov. 9, 2009). A Court’s “deadline will not be extended
`absent a showing of good cause and with the judge’s consent.” Id. (emphasis added). Plaintiff
`cannot make this showing with respect to the anticipated demonstrative aid.
`a. Plaintiff Cannot Show Good Cause to Extend the Court’s Deadline
`A motion in limine is not the vehicle to object to a demonstrative aid. Instead, this District
`reviews objected demonstrative aids prior to trial to make a determination of its use at trial.2
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`1 Contrary to Plaintiff’s contention that the demonstrative aid contains “substantial changes”
`(Motion, at 3), the demonstrative aid contains only 138 lines of changed code. Wade Decl. ¶ 6.
`2 Summit Towers Condo. Ass’n,, 2012 WL 12838460, at *1 (“If opposing counsel objects to the
`demonstrative aid, counsel shall bring the demonstrative aid to calendar call and the Court will
`rule on its use at trial.”); see also Exime v. E.W. Ventures, Inc., No. 08-60099-CIV, 2009 WL
`454278, at *4 (S.D. Fla. Feb. 11, 2009) (“In the event a party objects to the use of a particular
`demonstrative aid, then the Court shall examine each such item prior to trial.”).
`3
`COLE, SCOTT & KISSANE, P.A.
`ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX
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`Case 9:19-cv-81160-RS Document 936 Entered on FLSD Docket 05/26/2021 Page 4 of 8
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`Specifically, this Court has explained that demonstrative aids should be “[d]iscuss[ed] in advance
`with opposing counsel in effort to reach agreement.”3 Thus, a motion in limine is not the vehicle
`used to object to demonstrative aids.
`Plaintiff disingenuously claims that Corellium prevented it from learning about the
`demonstrative aid. First, Corellium was under no duty to provide its demonstrative aid so far in
`advance. See Summit Towers Condo. Ass’n, Inc. v. QBE Ins. Corp., No. 11-60601-CIV-
`SEITZ/SIMONTON, 2012 WL 12838460, at *1 (S.D. Fla. May 7, 2012) (finding that “[i]f the
`parties seek to use demonstrative aids they shall show them to opposing counsel at least 24 hours
`before [] calendar call.”). Second, Corellium not only disclosed to Plaintiff what it intended to use
`as a demonstrative aid at trial, but has given Apple unfettered access to review the few differences
`in the code for the demonstrative aid for the past two months. Third, the demonstrative aid has not
`been prepared by an expert because it does not constitute an expert opinion, it illustrates the
`knowledge of the creators of Corellium which will be the subject of extensive testimony. Cf.
`Hughes v. GEICO Gen. Ins. Co., 2018 WL 490506, at n. 2 (M.D. Fla. Jan. 19, 2018) (prohibiting
`expert from testifying on “demonstrative exhibits” because it constituted an “an analysis and
`methodology” of the expert and was not “timely provided by the expert.”).
`Accordingly, Apple has not shown good cause to extend the Court’s deadlines to file a
`motion in limine to preclude Corellium’s demonstrative aid.
`b. Corellium’s Demonstrative Aid is Highly Relevant
`Apple’s proposed motion lacks merit. Rule 611(a) of the Federal Rules of Evidence
`declares that the “court shall exercise reasonable control over the mode and order of interrogating
`witnesses and presenting evidence so as to (1) make the interrogation and the presentation effective
`for the ascertainment of the truth.” “Demonstrative aids are regularly used to clarify or illustrate
`testimony.” U.S. v. Salerno, 108 F.3d 730, 744 (7th Cir. 1997). Black’s Law Dictionary defines
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`3
`Practice
`Judicial
`Matthewman,
`William
`Donald
`https://www.floridabar.org/directories/courts/fed-corner/fcpc-guide/fcpc-
`survey/?doc=a2k1R000003awYzQAI, last visited May 25, 2021.
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`COLE, SCOTT & KISSANE, P.A.
`ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX
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`Survey,
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`at
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`Case 9:19-cv-81160-RS Document 936 Entered on FLSD Docket 05/26/2021 Page 5 of 8
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`demonstrative evidence as “[p]hysical evidence that one can see and inspect.”4 “Many
`[demonstratives] are not supposed to be actual evidence, but ‘aids’ to understanding.”5
`Here, the code for this “patchless” demonstrative aid provides a technical demonstration
`that no patches are required to run Apple’s copyrighted work, iOS, on non-Apple hardware and
`that Corellium knew the same to be true. Wade Decl. ¶ 7. This demonstrative aid is relevant
`because Plaintiff brings a DMCA claim in which it contends to have implemented effective TPMs
`prevent iOS to run on non-Apple hardware. ECF No. 589, ¶¶ 18-19. Further, Apple asserts that
`Corellium “enabl[es] its users to circumvent the technological protection measures that are
`designed to limit where and how Apple’s copyrighted works can be used.” Id., ¶ 28. What the
`demonstrative aid intends to show is at the crux of the DMCA issue in this case. Specifically, the
`demonstrative aid shows that Corellium knows that it is able to run iOS on non-Apple hardware
`without a single patch (alleged circumventions), and without changing a single byte of iOS code.
`Wade Decl. ¶ 7. Further, the demonstrative aid goes to show that the patches generated by
`Corellium are merely to make CORSEC user-friendly and not made to bypass any TPMs, because
`iOS can be run without any changes or bypasses. Id.
`A district court “may exclude relevant evidence only when unfair prejudice substantially
`outweighs probative value.” Williams, 2018 WL 3412858, at *2. Notably, there is no unfair
`prejudice to Plaintiff, which has had access to the demonstrative aid since March 26, 2021, and its
`expert has reviewed the demonstrative aid source code and to prepare its cross examination. ECF
`No. 931-3, Ex. C to Motion, ¶¶ 3-7. More importantly, Plaintiff has had access to Corellium’s
`source code since April 2020 (Motion, at 2) as well as the removal of patches to the source code,
`essentially this is the same source code that Apple has had access to since April 2020. Wade Decl.
`¶¶ 6-8; 0.01% has changed.
`Plaintiff complains that the demonstrative aid “will be confusing and misleading to jurors”
`because it is “not the version of its product at issue in this case.” Motion, at 1. Plaintiff gives no
`explanation for why a juror could not distinguish between the product at issue under the DMCA
`and all other source code, or why the jury could not be further instructed by the Court on the
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`4 Demonstrative Evidence, BLACK’S LAW DICTIONARY (10th ed. 2014).
`5
`Evidence,
`LAW.COM
`Demonstrative
`https://dictionary.law.com/Default.aspx?selected=486, last visited May 25, 2021.
`5
`COLE, SCOTT & KISSANE, P.A.
`ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX
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`DICTIONARY,
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`Case 9:19-cv-81160-RS Document 936 Entered on FLSD Docket 05/26/2021 Page 6 of 8
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`purpose of demonstratives, as opposed to admissible evidence. Whether the source code represents
`any actual product is irrelevant. The code helps illustrate the knowledge of the Corellium
`programmers that such patches are not necessary. It is not a “made-for-trial” version of the
`Corellium product as Plaintiff contends, but even if it were, it is proper to prepare demonstrative
`aids for trial that facilitate the jury’s understanding of complex technical issues.6 Motion, at 1.
`Plaintiff’s proposed motion in limine would also be improper because it can show no
`prejudice, even if it were a proper and timely motion in limine. “Motions in limine are most
`appropriate when filed to prevent a party from attempting to introduce such highly prejudicial
`evidence that mere mentioning of the evidence could not be remedied by an instruction to
`disregard.” Horowitch, 2009 WL 3790415, at *5. “Motions in limine are generally disfavored.”
`Williams v. Ross Dress for Less, Inc., No. 0:17-CV-61673-KMM, 2018 WL 3412858, at *2 (S.D.
`Fla. July 6, 2018). Despite the fact that Plaintiff is seeking protected attorney trial strategies and
`mental impressions, Corellium produced the demonstrative aid source code for Apple to review
`and for its expert to inspect. In contrast, Plaintiff has not disclosed any of the demonstrative aids
`it intends to use at trial. Contrary to Plaintiff’s allegations, Corellium has provided more
`information than required for a demonstrative aid and does not need to disclose its trial strategy,
`specifically, how the demonstrative aid “would actually be presented to the jury.” Motion, at 3.
`Similar to this case, in Tritek Technologies, the Court found “that the probative value of
`the demonstrative exhibit is not substantially outweighed by its prejudicial effect” when
`“Defendants were able to view [] modifications in advance of preparing their response, and
`therefore have had an adequate opportunity to address these changes in configuration in preparing
`their responding brief.” Tritek Technologies, Inc. v. U.S., 67 Fed.Cl. 727, 733 (2005). Therefore,
`because Plaintiff has been given access to Corellium’s “patchless” demonstrative aid for the past
`two months, like in Tritek Technologies, the value of Corellium’s “patchless” demonstrative aid is
`not substantially outweighed by any alleged prejudicial effect.
`Accordingly, the motion Plaintiff requests leave to file cannot be made in limine, lacks
`good cause to be filed in an untimely manner, and lacks all merit even if it was otherwise proper.
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`6 Am. Technical Ceramics Corp. v. Presidio Components, Inc., 490 F.Supp.3d 593, 642 (E.D. NY
`2020) (finding that “visual aids are indispensable to a lay juror’s comprehension of the advanced,
`often technical subjects that arise in patent cases.”).
`6
`COLE, SCOTT & KISSANE, P.A.
`ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX
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`Case 9:19-cv-81160-RS Document 936 Entered on FLSD Docket 05/26/2021 Page 7 of 8
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`IV. Conclusion
`For the foregoing reasons, Plaintiff’s Motion should be denied.
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`Dated: May 26, 2021
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` Respectfully submitted,
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`COLE, SCOTT & KISSANE, P.A.
`Counsel for Defendant CORELLIUM, LLC
`Esperante Building
`222 Lakeview Avenue, Suite 120
`West Palm Beach, Florida 33401
`Telephone (561) 612-3459
`Facsimile (561) 683-8977
`Primary e-mail: justin.levine@csklegal.com
`Secondary e-mail: lizza.constantine@csklegal.com
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`
`By:
`s/ Lizza C. Constantine
` JONATHAN VINE
`Florida Bar. No.: 10966
`JUSTIN B. LEVINE
`Florida Bar No.: 106463
`LIZZA C. CONSTANTINE
`Florida Bar No.: 1002945
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`and
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`HECHT PARTNERS LLP
`Counsel for Defendant
`125 Park Ave., 25th Floor
`New York, NY 10017
`Telephone (212) 851-6821
`David Hecht, Pro hac vice
`E-mail: dhecht@hechtpartnersllp.com
`Maxim Price, Pro hac vice
`E-mail: mprice@hechtpartnersllp.com
`Minyao Wang, Pro hac vice
`E-mail: mwang@hechtpartnersllp.com
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`CERTIFICATE OF SERVICE
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`IT IS HEREBY CERTIFIED that on May 26, 2021, the foregoing document was filed
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`electronically with the Clerk of the Court using CM/ECF. It is also certified the foregoing
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`COLE, SCOTT & KISSANE, P.A.
`ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX
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`Case 9:19-cv-81160-RS Document 936 Entered on FLSD Docket 05/26/2021 Page 8 of 8
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`document is being served on all counsel of record identified on the attached Service List in the
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`manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or
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`by some other authorized manner, or a combination thereof, so as to comply with the requirements
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`of Local Rule 5.4 and other applicable rules and procedures.
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`SERVICE LIST
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`
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`Martin B. Goldberg
`mgoldberg@lashgoldberg.com
`rdiaz@lashgoldberg.com
`Emily L. Pincow
`epincow@lashgoldberg.com
`gizquierdo@lashgoldberg.com
`LASH & GOLDBERG LLP
`100 Southeast Second Street
`Miami, FL 33131
`
`Kathryn Ruemmler (pro hac vice)
`kathryn.ruemmler@lw.com
`Sarang Vijay Damle (pro hac vice)
`sy.damle@lw.com
`Elana Nightingale Dawson (pro hac vice)
`elana.nightingaledawson@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street NW, Suite 1000
`Washington, DC 20004
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`Andrew M. Gass (pro hac vice)
`andrew.gass@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`
`Jessica Stebbins Bina (pro hac vice)
`jessica.stebbinsbina@lw.com
`LATHAM & WATKINS LLP
`10250 Constellation Blvd., Suite 1100
`Los Angeles, CA 90067
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`Attorneys for Plaintiff,
`Apple Inc.
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`COLE, SCOTT & KISSANE, P.A.
`ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX
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