UNITED STATES INTERNATIONAL T
`WASHINGTON, D.C.
`
`Before Honorable Charles E.
`Administrative Law Judg
`
`In the Matter of
`
`CERTAIN NOISE CANCELLING
`
`______ 6
`
`- 07 L.. -----
`
`I______.___---------
`OfflL? -If ‘hie
`St ~ i t t d r . 4
`#+9.T~77T&6$6,
`
`A
`
`COMPLAINANT BOSE CORPORATION’S MOTION IN LIMINE TO PRECLUDE
`RESPONDENTS FROM PRESENTING EXPERT OPINIONS AT TRIAL
`WHICH WERE NOT PREVIOUSLY DISCLOSED
`IN RESPONDENTS’ EXPERT REPORTS OR DEPOSITIONS
`
`Complainant Bose Corporation (“Bose”) submits this motion in limine, pursuant to Order
`No. 2’s Ground Rule Nos. 6 and 10.5.6 and 19 C.F.R. 5 210.37 to preclude Respondents from
`N
`presenting expert testimony at trial which was not previously disclosed in Respondents’ exp&
`
`)I
`
`c?
`’-’
`
`reports or depositions.
`
`“3
`-4 -
`2
`I w
`The Court’s Ground Rule No. 6, which states that “[tlhe [expert] report shall contain4
`--
`N
`.c
`(emphasis added), mirrors the language of Fed.R.Civ.Pro. 26(a)(2)(B)(i).’ The principal goax of
`
`complete statement of all opinions to be expressed and the basis and reasons therefore,”
`
`I..
`
`t-.
`
`Fed.R.Civ.Pro. 26(a)(2)(B)(i) are twofold: (1) to impose an affirmative duty on experts to
`
`disclose complete information in order to prevent “surprise[s] as to the scope of testimony,” and
`
`to prevent the tactic of surprise from determining the outcome of litigation, Anderson v. Ridge
`
`Tool Co., slip. op. 2008 WL 3849923 (E.D. Ky. August 14,2008) (citing Fielden v. CSX
`
`Transp., Inc., 482 F.3d 866, 871 (6th Cir. 2007)); Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir.
`
`I See Order No. 2, Ground Rule No. 6, “Expert Witnesses and Reports” (January 4,2008); the language of
`Fed.R.Civ.Pro. 26(a)(2)(B)(i) differs from that of Ground Rule No. 6 only in minutia: “The report must contain: a
`complete statement of all opinions the witness will express and the basis and reasons for them.” 26(a)(2)(B)(i).
`
`
`WASHINGTON, D.C.
`
`Before Honorable Charles E.
`Administrative Law Judg
`
`In the Matter of
`
`CERTAIN NOISE CANCELLING
`
`______ 6
`
`- 07 L.. -----
`
`I______.___---------
`OfflL? -If ‘hie
`St ~ i t t d r . 4
`#+9.T~77T&6$6,
`
`A
`
`COMPLAINANT BOSE CORPORATION’S MOTION IN LIMINE TO PRECLUDE
`RESPONDENTS FROM PRESENTING EXPERT OPINIONS AT TRIAL
`WHICH WERE NOT PREVIOUSLY DISCLOSED
`IN RESPONDENTS’ EXPERT REPORTS OR DEPOSITIONS
`
`Complainant Bose Corporation (“Bose”) submits this motion in limine, pursuant to Order
`No. 2’s Ground Rule Nos. 6 and 10.5.6 and 19 C.F.R. 5 210.37 to preclude Respondents from
`N
`presenting expert testimony at trial which was not previously disclosed in Respondents’ exp&
`
`)I
`
`c?
`’-’
`
`reports or depositions.
`
`“3
`-4 -
`2
`I w
`The Court’s Ground Rule No. 6, which states that “[tlhe [expert] report shall contain4
`--
`N
`.c
`(emphasis added), mirrors the language of Fed.R.Civ.Pro. 26(a)(2)(B)(i).’ The principal goax of
`
`complete statement of all opinions to be expressed and the basis and reasons therefore,”
`
`I..
`
`t-.
`
`Fed.R.Civ.Pro. 26(a)(2)(B)(i) are twofold: (1) to impose an affirmative duty on experts to
`
`disclose complete information in order to prevent “surprise[s] as to the scope of testimony,” and
`
`to prevent the tactic of surprise from determining the outcome of litigation, Anderson v. Ridge
`
`Tool Co., slip. op. 2008 WL 3849923 (E.D. Ky. August 14,2008) (citing Fielden v. CSX
`
`Transp., Inc., 482 F.3d 866, 871 (6th Cir. 2007)); Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir.
`
`I See Order No. 2, Ground Rule No. 6, “Expert Witnesses and Reports” (January 4,2008); the language of
`Fed.R.Civ.Pro. 26(a)(2)(B)(i) differs from that of Ground Rule No. 6 only in minutia: “The report must contain: a
`complete statement of all opinions the witness will express and the basis and reasons for them.” 26(a)(2)(B)(i).
`
`
`
`2000); see also Halcomb v. Washington Metropolitan Area Transit Authority, 526 F.Supp.2d 24,
`
`28 (D. D.C. 2007); and (2) to conserve judicial resources by preventing surprises during later
`
`stages of litigation. See, e.g., Sylla-Sawdon v. Uniroyal Goodrich Tire Co. , 47 F.3d 277, 284
`
`(8th Cir. 1995), cert. denied, 516 U.S. 822, 116 S. Ct. 84, 133 L.Ed.2d 42 (1995); Nan Ya
`
`Plastics Corp. v. Global Polymers, LLC, 2005 WL 5988669 at *2 (W. D. Ky. 2005); Reed v.
`
`Binder, 165 F.R.D. 424,429 (D. N.J.1996)).
`
`Motions to preclude expert’s from offering testimony at trial which was not previously
`
`disclosed in an expert report are routinely granted. See, e.g., Certain SDRAMs, DRAMS, ASIC‘s,
`
`RAM- and- LOGIC Chips, Microprocessors, Microcontrollers, Processes for Manufacturing
`
`Same and Products Containing Same (“SDRAMs’Y, Inv. No. 337-TA-404, Order No. 17, at 2
`
`(April 17, 1998) (Luckern) (precluding expert from testifying to relevant material not contained
`
`in expert report);. Halcomb v. Washington Metropolitan Area Transit Authority, 526 F.Supp.2d
`
`24,28 (D.D.C. 2007); Walsh v. McCain Foods Ltd., 81 F.3d 722,727 (7th Cir. 1996);
`
`Huddleston v. Baumfolder Corp., slip op. 2008 WL 341666 (E. D. Mo. 2008) (Feb. 5,2008);
`
`Brawhaw ex rel. Hays v. Marine Health Care, Inc., slip op. 2008 WL 2004707 (N. D. Miss.
`
`2008) (May 8,2008); Reynolds v. General Motors Corp. , Not Reported in F.Supp.2dY 2007 WL
`
`2908564 (N. D. Ga. 2007) (Sept. 28,2007).
`
`Allowing Respondents’ experts to offer opinions and testimony at trial that they did not
`
`previously disclose in their expert reports would violate Ground Rules 6 and 10.5.6 and would
`
`severely prejudice Bose. Accordingly, Respondents’ experts should be precluded from offering
`
`any opinions or testimony not contained in their expert reports.
`
`2
`
`
`
`Dated: October 17,2008
`
`Respectfully submitted,
`
`FISH & RICHARDSON P.C.
`
`Andrew R. Kopsidas
`Jeffrey R. Whieldon
`Autumn J.S. Hwang
`Steven A. Bowers
`FISH & RICHARDSON P.C.
`1425 K Street, N.W.
`1 1 th Floor
`Washington, D.C. 20005
`Telephone: (202) 783-5070
`Facsimile: (202) 783-233 1
`
`Gregory A. Madera
`Stephen A. Marshall
`FISH & RICHARDSON P.C.
`225 Franklin Street
`Boston, MA 021 10
`Telephone: (617) 542-5070
`Facsimile: (617) 542-8906
`
`Jordan T. Fowles
`FISH & RICHARDSON P.C.
`17 17 Main Street
`Suite 5000
`Dallas, TX 75201
`Telephone: (214) 747-5070
`Facsimile: (214) 747-2091
`
`Attorneys for Complainant
`Bose Corporation
`
`3
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on October 17,2008, a copy of
`
`COMPLAINANT BOSE’S MOTION INLZMZNE TO PRECLUDE
`RESPONDENTS FROM PRESENTING EXPERT OPINIONS AT TRIAL
`WHICH WERE NOT PREVIOUSLY DISCLOSED
`IN RESPONDENTS’ EXPERT REPORTS OR DEPOSITIONS
`
`was served on the following as indicated:
`
`Marilyn R. Abbott
`Secretary
`U.S. International Trade Commission
`500 E. Street, S.W., Room 112-F
`Washington, DC 20436
`
`The Honorable Charles E. Bullock
`Administrative Law Judge
`U.S. International Trade Commission
`500 E Street, S.W., Room 317-1
`Washington, DC 20436
`
`Chstopher Paulraj, Esq.
`T. Spence Chubb, Esq.
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street, S.W., Room 404-1
`Washington, DC 20436
`
`E Via Hand Delivery
`0 ViaU.S. Mail
`0 Via Overnight Delivery
`0 Via Electronic Mail
`0 Via Facsimile
`0 Via Electronic Docket Filing
`NotServed
`
`Via Hand Delivery
`0 ViaU.S. Mail
`0 Via Overnight Delivery
`Via Electronic Mail
`0 Via Facsimile
`0 Via Electronic Docket Filing
`0 NotServed
`
`IXI Via Hand Delivery
`ViaU.S. Mail
`0 Via Overnight Delivery
`IXI Via Electronic Mail
`0 Via Facsimile
`0 Via Electronic Docket Filing
`0 NotServed
`
`
`
`William B. Nash, Esq.
`Daniel D. Chapman, Esq.
`Mark Fassold, Esq.
`lackson Walker L.L.P.
`112 E. Pecan Street., Suite 2400
`3an Antonio, TX 78209
`
`Counsel for Respondents Phitek Systems
`Limited, GN Netcom, Inc., Creative Labs, Inc.,
`2nd Logitech Inc.
`
`Alan Cope Johnston, Esq.
`G. Brian Busey, Esq.
`Cynthia Lopez Beverage, Esq.
`Morrison & Foerster LLP
`2000 Pennsylvania Ave., N.W., Suite 5500
`Washington, DC 20006-1888
`
`Counsel for Respondents Phitek Systems
`Limited, GN Netcom, Inc., Creative Labs, Inc.,
`and Logitech Inc.
`
`2 Via Hand Delivery
`2 Via U.S. Mail
`2 Via Overnight Delivery
`Via Electronic Mail
`2 Via Facsimile
`2 Via Electronic Docket Filing
`2 Notserved
`
`7 Via Hand Delivery
`2 ViaU.S. Mail
`2 Via Overnight Delivery
`Via Electronic Mail
`2 Via Facsimile
`1 Via Electronic Docket Filing
`3 Notserved
`
`James P. White, Esq.
`J. Aron Carnahan, Esq.
`Welsh & Katz, Ltd.
`120 South Riverside Plaza, 22nd Floor
`Chicago, IL. 60606
`Counsel for Respondent Audio Technica US.,
`In c.
`
`Arthur Wineburg, Esq.
`Daniel E. Yonan, Esq.
`Akin Gump Straws Hauer & Feld LLP
`1333 New Hampshire Ave., N.W.
`Washington, DC 20036
`
`Counsel for Respondent Audio Technica US.,
`Inc.
`
`0 Via Hand Delivery
`0 Via U.S. Mail
`Via Overnight Delivery
`Via Electronic Mail
`0 Via Facsimile
`0 Via Electronic Docket Filing
`0 Notserved
`
`0 Via Hand Delivery
`0 Via U.S. Mail
`0 Via Overnight Delivery
`a Via Electronic Mail
`0 Via Facsimile
`0 Via Electronic Docket Filing
`Notserved
`
`
`
`Daniel Ebenstein, Esq.
`Abraham Kasdan, Esq.
`Joseph Casino, Esq.
`Amster, Rothstein & Ebenstein LLP
`90 Park Avenue
`New York, NY 10016
`
`Counsel for Respondent Panasonic
`Corporation of North America
`
`Tom M. Schaumberg, Esq.
`Jamie D. Underwood, Esq.
`Adduci, Mastriani & Schaumberg, LLP
`1200 Seventh Street, N.W., Fifth Floor
`Washington, DC 20036
`
`Counsel for Respondent Panasonic
`Corporation of North America
`
`0 Via Hand Delivery
`[I1 Via U.S. Mail
`0 Via Overnight Delivery
`Via Electronic Mail
`0 Via Facsimile
`0 Via Electronic Docket Filing
`0 NotServed
`
`[I1 Via Hand Delivery
`0 Via U.S. Mail
`0 Via Overnight Delivery
`Via Electronic Mail
`0 Via Facsimile
`0 Via Electronic Docket Filing
`0 Not Served
`4 n
`
`V
`
`
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`In the Matter of
`
`Before Honorable Charles E. Bullock
`Administrative Law Judge
`I
`
`CERTAIN NOISE CANCELLING
`HEADPHONES
`
`Investigation No. 337-TA-626
`
`JPROPOSEDl ORDER NO.:
`
`GRANTING COMPLAINANT BOSE CORPORATION’S MOTION IN LIMINE TO
`PRECLUDE RESPONDENTS FROM PRESENTING EXPERT OPINIONS AT
`TRIAL WHICH WERE NOT PREVIOUSLY DISCLOSED
`IN RESPONDENTS’ EXPERT REPORTS OR DEPOSITIONS
`
`Having considered Complainant Bose Corporation’s Motion In Limine to preclude
`
`Respondents from Presenting Expert Opinions at Trial Which Were Not Previously Disclosed in
`
`Respondents’ Expert Reports or Depositions and determining that good cause has been show, IT
`
`IS HEREBY ORDERED that the Motion is GRANTED.
`
`Respondents are precluded from presenting expert opinions at trial which were not
`
`previously disclosed in Respondents’ expert reports or depositions.
`
`So ORDERED this
`
`day of
`
`,2008.
`
`Hon. Charles E. Bullock
`Administrative Law Judge
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