Case 9:19-cv-81160-RS Document 984 Entered on FLSD Docket 07/13/2021 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`Civil No. 19-81160-cv-Smith/Matthewman
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`Plaintiff,
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`APPLE INC.,
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`vs.
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`CORELLIUM, LLC,
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`Defendant.
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`______________________________________________/
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`ORDER DENYING CORELLIUM’S MOTION TO STRIKE [DE 963]
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`THIS CAUSE is before the Court upon Defendant Corellium, LLC’s (“Corellium”) Motion
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`to Strike Apple’s Untimely June 4, 2021, Supplemental Expert Reports and Preclude [ ] from
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`Testifying about New Opinions (“Motion”) [DE 963]. The Motion was referred to the undersigned
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`by the Honorable Rodney Smith, United States District Judge. See DE 30. Plaintiff Apple Inc.
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`(“Apple”) has filed a response to the Motion [DE 970, 972], and Corellium has filed a reply [DE
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`983]. This matter is now ripe for review.
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`MOTION, RESPONSE AND REPLY
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`Corellium moves, pursuant to Federal Rules of Civil Procedure 12(f) and 37(c), to strike
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`Apple’s second and third supplemental expert reports for Dr. Jason Nieh, Dr. Michael D. Siegel,
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`and Mr. David Connell which Apple submitted on June 4, 2021. [DE 963]. According to
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`Corellium, the second and third supplemental reports “contain new opinions including, but not
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`limited to supposed copyrights and new operating systems such as iOS 12.3, 12.4, 13.0, 13.2, 13.4,
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`13.6, and 14.0, as well as the FRIDA third-party app, that were never before asserted in this case,
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`Case 9:19-cv-81160-RS Document 984 Entered on FLSD Docket 07/13/2021 Page 2 of 7
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`and as to which Corellium has had no opportunity to take either fact or expert discovery and
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`depositions.” Id. at p. 4. Corellium asserts that the supplemental reports are untimely, that Apple
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`should not be permitted to introduce new arguments and opinions, and that Apple is causing undue
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`prejudice to Corellium. Id. at pp. 8-18.
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`In response, Apple asserts that, “[b]y supplementing its own production with
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`unquestionably relevant documents and information in this case over the last six months (and long
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`after the April 20, 2020 cut-off for the close of discovery), Corellium itself created the need for
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`expert witnesses to address newly produced evidence now.” [DE 970, p. 1]. The evidence at issue
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`“relates to Corellium’s constantly changing iOS virtualization product and business model,” and
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`Apple claims that its supplemental expert reports, timely served on June 4, 2021, “address only
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`the supplemental discovery produced by Corellium over the preceding six months.” Id. Apple
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`maintains that “[t]he best, and fairest, approach is to permit both sides to rely upon the
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`supplemental evidence Corellium produced in spring 2021, including Apple’s expert witnesses
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`who have timely disclosed their reliance on the evidence in supplemental expert reports. But if
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`Apple is precluded from relying on the evidence, Corellium must likewise be barred.” Id. at p. 2.
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`In reply, Corellium first argues that the “30 day before trial” provision of Rule 26(a)(3)(B).
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`is inapplicable, and the supplemental expert reports are clearly untimely because they were not
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`served in accordance with expert report timeline set forth in this Court’s Scheduling Order. [DE
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`983, p. 3]. Corellium next argues that the three reports are prejudicial because Corellium was not
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`able to examine, test, or rebut these new opinions before trial. Id. at p. 7. Finally, according to
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`Corellium, Apple’s alternative request to exclude post-discovery facts is improper. Id. at p. 8.
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`Case 9:19-cv-81160-RS Document 984 Entered on FLSD Docket 07/13/2021 Page 3 of 7
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`APPLICABLE LAW
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`Rule 26(a) requires experts to disclose a written report containing “a complete statement
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`of all opinions [they] will express and the basis and reasons for them.” Fed. R. Civ. P
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`26(a)(2)(B)(i). Under Fed. R. Civ. P. 26(e), parties must supplement an expert’s report “in a timely
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`manner if the party learns that in some material aspect the disclosure or response is incomplete or
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`incorrect” and the additional or corrective information must “not otherwise been made known to
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`the other parties during the discovery process or in writing[.]” This does not mean, however, that
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`parties can belatedly add new opinions or untimely rebuttal opinions under the guise of
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`supplemental reports.
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`“Because the expert witness discovery rules are designed to allow both sides in a case to
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`prepare their cases adequately and to prevent surprise ... compliance with the requirements of Rule
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`26 is not merely aspirational.” Cooper v. Southern Co., 390 F.3d 695, 728 (11th Cir. 2004)
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`(internal citations omitted). Fed. R. Civ. P. 37(c)(1) instructs that where “a party fails to provide
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`information ... as required by Rule 26(a) or (e), the party is not allowed to use that information or
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`witness ... unless the failure was substantially justified or harmless.” See, e.g., Potish v. R.J.
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`Reynolds Tobacco Co., 9:15-cv-81171, 2017 WL 5952892, at *2-4 (S.D. Fla. Nov. 30,
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`2017); Managed Care Sols., Inc. v. Essent Healthcare, Inc., 09-cv-60351, 2010 WL 1837724, at
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`*3 (S.D. Fla. May 3, 2010). Exclusion is also an appropriate remedy under Fed. R. Civ. P. 16(b),
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`which authorizes the court to control and expedite pretrial discovery through a scheduling order
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`and gives the court broad discretion to preserve the integrity and purpose of a pretrial order,
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`including the exclusion of evidence. Companhia Energetic Potiguar v. Caterpillar Inc., No. 14-
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`cv-24277, 2016 WL 3102225, at *5 (S.D. Fla. June 2, 2016).
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`Courts have broad discretion to exclude untimely-disclosed expert reports, even ones
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`designated as “supplemental” reports. Id.; see also, e.g., Cook v. Royal Caribbean Cruises, No.
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`11-cv-20732, 2012 WL 2319089 (S.D. Fla. June 15, 2012); Goodbys Creek, LLC v. Arch Ins. Co.,
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`No. 7-cv-0947, 2009 WL 1139575, at *2 (M.D. Fla. Apr. 27, 2009). Parties thus cannot abuse Rule
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`26(e) and use a supplemental report to “merely bolster a defective or problematic expert witness
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`report.” Caterpillar Inc., 2016 WL 3102225, at *6. Rule 26(e) “is not a device to allow a party's
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`expert to engage in additional work, or to annul opinions or offer new ones to perfect a litigating
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`strategy.” Cochran v. The Brinkmann Corp., No. 8-cv-1790, 2009 WL 4823858, at *5 (N.D. Ga.
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`Dec. 9, 2009), aff'd by, 381 Fed. Appx. 968 (11th Cir. 2020). The only purpose of Rule 26(e)
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`supplementation is “for the narrow purpose of correcting inaccuracies or adding information that
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`was not available at the time of the initial report.” Potish, 2017 WL 5952892, at *3; All-Tag Corp.
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`v. Checkpoint Sys., Inc., No. 9:17-CV-81261, 2019 WL 5073499, at *2–3 (S.D. Fla. Oct. 9, 2019).
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`The purpose of the rules governing expert disclosure is to safeguard against surprise. United States
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`v. Marder, 318 F.R.D. 186, 192 (S.D. Fla. 2016).
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`ANALYSIS
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`The first issue is whether the supplemental expert reports were timely. The parties both
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`discuss the Paperless Order entered on February 20, 2020, as supportive of their positions as to the
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`timeliness issue. That Paperless Order stated,
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`The parties may exchange supplemental expert reports and shall confer and agree
`on the appropriate dates by which they will do so. Except as provided below, the
`parties' exchange of supplemental expert reports SHALL NOT affect any date in
`the Court's Scheduling Order, including the deadline for summary judgment and
`Daubert motions. The parties may, however, exchange supplemental expert reports
`after the expert discovery deadline, keeping in mind that the dispositive motions
`deadline will not be moved, and the Court will not permit untimely Daubert
`challenges in any form.
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`Case 9:19-cv-81160-RS Document 984 Entered on FLSD Docket 07/13/2021 Page 5 of 7
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`[DE 159]. The undersigned does not read this Paperless Order as barring Apple from
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`supplementing its expert reports on June 4, 2021. In fact, it appears that, if Corellium had properly
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`conferred and agreed, the entire timeliness issue would be moot. See DE 970-1, ¶¶ 17-22
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`(evidencing that Apple tried to confer on a deadline, and Corellium refused).
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`Next, as there was no court-imposed deadline for supplemental expert reports, the Court
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`turns to the Federal Rules of Civil Procedure. Under Rule 26(e)(2), “[a]ny additions or changes to
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`th[e] information [included in the report and to information given during the expert’s deposition]
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`must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.” Fed. R.
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`Civ. P. 26(e)(2); see also Fed. R. Civ. P. 26(a)(3)(B) (stating “[u]nless the court orders otherwise,
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`these disclosures must be made at least 30 days before trial”). Apple served the supplemental
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`expert reports on June 4, 2021, which was, at the time they were served, more than 30 days before
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`trial. The Court finds that the supplemental reports are timely and were drafted and produced
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`within a reasonable time after Corellium provided Apple with supplemental discovery.
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`Further, the Court has reviewed the Third Supplemental Report of David B. Connelly [DE
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`972-2], the Third Supplemental Report of Michael D. Siegel, Ph.D. [DE 972-3], and the Second
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`Supplemental Expert Report of Dr. Jason Nieh [DE 972-4]. It does appear to the Court that the
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`supplementation was made for the narrow purpose of correcting inaccuracies or adding
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`information that was not available at the time of the initial reports. Here, Corellium produced code
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`and other discovery over the last seven months. Specifically, Corellium made four separate
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`supplemental productions on December 10, 2020, March 5, 2021, March 15, 2021, and April 2,
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`2021. [DE 970-1, ¶ 8]. It also supplemented its interrogatory responses on December 10, 2021 and
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`March 5, 2021. Id. ¶ 9. Corellium produced updated source code for its iOS-virtualizing product
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`on March 12, 2021. Id. And Corellium also produced source code related to a new technical
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`demonstrative aid on March 26, 2021, and provided declarations related to that new source code
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`on May 26 and June 11, 2021. Id. ¶ 10; DEs 951-1, 936-1.
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`Three of Apple’s experts supplemented their reports after all of this additional production
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`and after Apple received supplemented discovery responses from Corellium. Now, Corellium
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`moves to strike the supplemental expert reports. Had Corellium not recently produced additional,
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`relevant discovery after the discovery cut-off date and after Apple’s experts had already issued
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`their reports, the result here would be different. But the newly produced discovery by Corellium
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`is the sole cause of the supplementation of the reports of Apple’s experts. The supplementation of
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`the experts’ reports was both substantially justified and harmless.
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`The Court wants to be fair to both sides and has three options. It could grant the Motion,
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`but this would give Corellium an unfair advantage as Corellium could still introduce the recently
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`disclosed discovery through its fact witnesses at trial (which it clearly intends to do in light of its
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`arguments in its reply). The Court could grant the motion, preclude supplementation by Apple,
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`and preclude Corellium from relying on the newly disclosed discovery, but this would not assist
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`in the search for truth. Clearly, the best option here, and the only option which would be fair to
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`both sides, is to deny the Motion, permit Apple’s experts to testify as to the information in their
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`supplemental reports, and also allow Corellium’s fact and expert witnesses to address the belatedly
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`produced discovery to the extent permitted under the Rules.
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`Finally, the Court must again note that the ongoing, underlying problem in this case is that
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`the parties are unable or unwilling to properly communicate, confer, and act collaboratively. As
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`stated above, there would seemingly not be a timeliness issue if Corellium had just agreed to a
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`supplemental expert report deadline. The Court also emphasizes that Corellium’s statement in its
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`reply that it “properly raised a motion to strike untimely expert reports, and such a motion should
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`not equate to any punitive recourse against Corellium” [DE 983, pp. 8-9] is just one example of
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`when the parties have engaged in a game of “gotcha” and demonstrated their disregard for fairness
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`to all parties in this litigation.
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`Based on the foregoing, it is hereby ORDERED and ADJUDGED that Corellium’s
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`Motion to Strike Apple’s Untimely June 4, 2021, Supplemental Expert Reports and Preclude [ ]
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`from Testifying about New Opinions [DE 963] is DENIED.
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`DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida,
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`this 13th day of July, 2021.
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`WILLIAM MATTHEWMAN
`United States Magistrate Judge
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