Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 1 of 9
`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE WESTERN DISTRICT OF TEXAS
`
`WACO DIVISION
`
`FLYPSI, INC. (D/B/A FLYP),
`
`Plaintiff,
`
`vs.
`
`GOOGLE LLC,
`
`Defendant.
`
`Civil Action No. 6:22-cv-31-ADA
`
`JURY TRIAL DEMANDED
`
`es
`
`
`
`PLAINTIFF FLYP’S REPLY IN SUPPORT OF ITS MOTION TO
`STRIKE CERTAIN EXPERT OPINIONS OF CHRIS MARTINEZ (ECF NO.153)
`
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`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE WESTERN DISTRICT OF TEXAS
`
`WACO DIVISION
`
`FLYPSI, INC. (D/B/A FLYP),
`
`Plaintiff,
`
`vs.
`
`GOOGLE LLC,
`
`Defendant.
`
`Civil Action No. 6:22-cv-31-ADA
`
`JURY TRIAL DEMANDED
`
`es
`
`
`
`PLAINTIFF FLYP’S REPLY IN SUPPORT OF ITS MOTION TO
`STRIKE CERTAIN EXPERT OPINIONS OF CHRIS MARTINEZ (ECF NO.153)
`
`
`
`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 2 of 9
`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 2 of 9
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`A.
`
`Martinez’s Acceptability and Availability Opinions Must be Excluded as
`Unreliable.
`
`Acknowledging that Martinez’s acceptability and availability opinions lack a reliable
`
`foundation in either Dr. Gottesman or engineerfil Google begins its Response (ECF No.176)
`
`with an attempt to manufacture some analysis by Martinez himself. (Resp. at 2.) But Martinez did
`
`not analyze either the acceptability or the availability of his two proposed non-infringing
`
`alternatives. For the BE2!temative, Google argues that MartinezPo
`pspo have no relevance to the acceptability or availability. (Resp. at 2 (citing
`Martine: Report 133, Fie15
`eee
`ee
`a. po also does not indicate whether Po would be
`technically acceptable today. For the BE21temative, Google argues that Martinez’s Report
`ee. (Resp. at 2 (citing Martinez Report §j 27, 131).) But a factual
`summaryiii does not independently analyze
`whether aould be commercially available or technically acceptable today.
`Finally, Google and Martinez both assume that becausePO
`ee. (Responseat 2 (citing Martinez Depo. 124:1—
`
`23).) But
`
`that conclusory assumption is not sufficient proof of present-day availability or
`
`acceptability. No one has done any analysis to test that assumption whatsoever. It is wholly
`
`conclusory and,as a result, unreliable.
`
`Far from analyzing acceptability and availability, Martinez conducted no analysis himself
`
`into either. Rather, his opinions on both rely on (1) untested, conclusory assumptionsor (2) on Dr.
`
`Gottesman and engineerfil And Martinez’s reliance on Dr. Gottesman and engineera is
`
`
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`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 3 of 9
`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 3 of 9
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`flawed.
`
`Asfor Dr. Gottesman,his opinionsare unreliable as explained in Flyp’s co-pending Motion
`
`to Strike (ECF No. 152) and reply. And Martineztestified thatPo
`
`eeMc. Ex. 2 at 125:21-126:5.)' And no such analysis can be found anywhere
`
`in Dr. Gottesman’s report. So while Googleis correct that one expert can rely on another expert in
`
`forming their opinions (Resp. at 2), the other expert’s opinions must themselves be reliable and
`
`admissible under Rule 702, which is not true here. 2M Sols. LLC v. Motorola Sols., Inc., No. CV
`
`12-33-RGA, 2016 WL 767900, at *7 (D. Del. Feb. 25, 2016).
`
`Asfor engineerJ Martinez’s reliance here fails because|| only supplies a non-
`
`factual conclusion—andthat conclusion is an impermissible lay opinion. Again, the full sum of
`
`a input to Martinez on acceptability is found in paragraph 134 ofthe Martinez Report:
`
`
`
`(Mot. Ex. 1 at § 134.) As can be seen,|| does not supply Martinez with foundational facts
`about these alternatives. Instead,a supplies only the ultimate conclusion that both
`Po (Id.) Thus, Google cannot rely on Oracle and that case supports Flyp’s
`
`position. (Resp. at 2-3 (citing Oracle Am., Inc. v. Google Inc., No. 10-cv-03561-WHA, 2011 WL
`
`5914033, at *1 (N.D. Cal. Nov. 28, 2011)).)
`
`In Oracle, the Court found “foundational facts
`
`
`
`
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`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 4 of 9
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`supplied by Google’s engineers can be properso long as they testify to the foundational facts with
`
`firsthand knowledge.” Oracle, 2011 WL 5914033, at *1. But as seen in paragraph 134 above,
`
`S| is not supplying facts—he is supplying a conclusion. And Martinez admitted that om
`SS»: «
`es
`
`(Mot. Ex. 2 at 121:25-123:12 (emphasis added).)
`
`
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`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 5 of 9
`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 5of9
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`
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`A. I didn’t ask him. I asked him about whether it would be
`
`(Id. at 125:3-20 (emphasis added).)
`
`Far from the foundational facts permitted in Oracle,|| instead proffers the ultimate
`
`conclusion—the type of lay-opinion testimony that the court in Webasto declared improper and
`
`struck. See Webasto Thermo & Comfort N. Am., Inc. v. BesTop, Inc., Case No. 16-cv-13456, 2019
`
`WL 3334563, at *5-7 (E.D. Mich. Jul. 25, 2019) (precluding expert opinion on non-infringing
`
`alternatives based on lay testimony of commercial acceptability as “manifestly beyond the scope
`
`of [engineer’s] percipient factual knowledge and personal experiences’’).
`
`Evenif}a input could be spun asfact rather than opinion (andit cannot), Google has
`not established that drasticf| Po would be within a firsthand
`
`knowledge.It is well-settled that the proponent of expert testimony must prove its admissibility
`
`by a preponderance of the evidence. Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579, 592
`
`(1993). Here, Google only argues thatJi is an engineer working on Google Voice. But Google
`supplies no evidenceatall that|| has any firsthand knowledge of Google’s ability tof|
`EEould be commercially acceptable.
`No evidence ofa understanding of the commercial market for these products is in this
`record. And by Google’s own admission,||Pe (Resp. at 3), so
`nothing suggests that he would have any firsthand knowledge ofPo
`ee
`
`4
`
`
`
`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 6 of 9
`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 6 of 9
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`So not only is a input an impermissible lay opinion that Martinez admits is
`conclusory rather than factual, the record cannot establish firsthand knowledgeofthe type
`(fim at issue.
`
`B.
`
`Martinez’s Cost Opinion Must be Excluded as Unreliable and Untimely.
`
`Because Martinez’s opinions on the availability and acceptability of the proposed
`
`alternatives are fundamentally flawed, Martinez’s opinions on both alternatives fail. Longhorn HD
`
`LLC v. NetScout Sys., Inc., Case No. 2:22-CV-349, 2022 WL 991696, at *4 (E.D. Tex. Mar. 31,
`
`2022) (“{a] reliable opinion on whether a product is or is not a non-infringing alternative is
`
`incomplete without opining whether the productis both ‘available’ and ‘acceptable’”). As such, if
`
`the Court has already struck Martinez’s opinions on acceptability and availability, then Martinez’s
`
`related opinion on cost must also be struck. But even if Martinez is allowed to testify as to
`
`acceptability and availability, his conclusory cost opinion should be independently struck as
`
`unreliable and untimely.
`
`The Martinez Report only presents the bare conclusion that costs to implement these
`
`alternatives would “take minimal resources.” (Mot. Ex. 1 at ¢ 134.) While Google tries to rely on
`
`supplemental testimony to suggest that Martinez conducted his own analysis (Resp. at 6), that
`
`supplemental analysis falls flat. Martinez’s testimonythat theaPO
`2as
`
`provides zero analysis of the steps or resources needed. That testimony is superficial by its own
`
`terms and merely states the end conclusion. Martinez can only superficially assume ease of
`
`implementation because he confirmed that he did no analysis himself whatsoever:
`
`
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`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 7 of 9
`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 7 of 9
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`
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`(Mot. Ex. 2 at 124:12-23 (emphasis added).) Moreover, because Martinez confirmed that
`I (2 125:15-25), Cooate ins as
`failed to present any evidence that a cost estimate associated withPo is
`something within percipient knowledge.
`p| bare conclusion on costs is also untimely. In its Response, Google ignores its
`
`obligation to supplement its discovery responses. (Resp. at 8.) Flyp served an interrogatory on
`
`non-infringing alternatives, which included a requestfor cost estimates.Pe
`ee) The onuswasnoton Flyp to request it a second,third, or fourth
`
`time via challenge. Once Google believed it had the requested cost information, it needed to
`
`supplementits response to provide it. Google did not.
`
`Google’s failure to supplement demonstrates that Google, Martinez, and a have
`
`conducted no actual analysis on the cost of these alternatives. If they had, Google would have
`
`needed to present such analysis during fact discovery—by supplementing their interrogatory
`
`responses and presenting a 30(b)(6) witness on Flyp’s Topic 6. If Google is correct that there was
`
`nothing to disclose during fact discovery, then that only confirms that Google now wishesto
`
`present bare, untested assumptions underthe cover of expert testimony. Such bare conclusions are
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`unreliable and cannot survive Rule 702 scrutiny.
`
`
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`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 8 of 9
`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 8 of 9
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`DATED:December5, 2023
`
`Respectfully submitted,
`
`/s/ Thomas M. Melsheimer
`Thomas M. Melsheimer
`
`Texas Bar No. 13922550
`tmelsheimer@winston.com
`M.Brett Johnson
`
`Texas Bar No. 00790975
`mbjohnson@winston.com
`Michael A. Bittner
`Texas Bar No. 24064905
`mbittner@winston.com
`C. Charles Liu
`Texas Bar No. 24100410
`ccliu@winston.com
`Steven R. Laxton
`
`Texas Bar No. 24120639
`slaxton@winston.com
`WINSTON & STRAWN LLP
`2121 North Pearl Street, Suite 900
`Dallas, TX 75201
`Telephone: (214) 453-6500
`
`Matthew R. McCullough
`California Bar No. 301330
`mrecullough@winston.com
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`Telephone: (650) 858-6500
`
`William M. Logan
`Texas Bar No. 24106214
`wlogan@winston.com
`Evan D. Lewis
`Texas Bar No. 24116670
`edlewis@winston.com
`WINSTON & STRAWN LLP
`800 Capitol Street, Suite 2400
`Houston, TX 77002
`Telephone: (713) 651-2766
`
`ATTORNEYS FOR PLAINTIFF
`
`
`
`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 9 of 9
`Case 6:22-cv-00031-ADA Document 216 Filed 12/12/23 Page 9 of 9
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`aT
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on December 5, 2023, a true and correct copy of the foregoing
`documentwasfiled electronically with the Clerk of Court using the CM/ECFsystem. As ofthis
`date, all counsel of record have consented to electronic service and are being served with a copy
`of this document through the Court’s CM/ECF system and by email. Administrative Policies and
`Procedures for Electronic Filing in Civil and Criminal Cases, Western District of Texas, Section
`14.
`
`/s/ Michael A. Bittner
`Michael A. Bittner
`
`
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