Kewazinga Corp. v. Google LLC

Background

The court had previously granted in part and denied in part Google’s motion to exclude portions of Michele Riley’s expert report. Kewazinga then sought reconsideration or, alternatively, permission for Riley to supplement her report. The court denied both requests, concluding that Kewazinga had not shown good cause for a late supplement after discovery had ended and the case had been scheduled for trial.

Kewazinga later cited a Federal Circuit decision, VLSI Tech. LLC v. Intel Corp., and argued that the decision justified revisiting the denial of permission to supplement. After reviewing additional letters and materials from both sides, the court considered whether supplementation should be allowed. The court also noted that the trial had been postponed because of a scheduling conflict and that the parties had requested another postponement because of witness-scheduling conflicts.

Ruling on the Expert Report

The court granted Kewazinga’s motion to supplement Riley’s expert report. It reasoned that Federal Rule of Civil Procedure 26(e)(1) allows supplementation when ordered by the court and that disputes about the reliability of the proposed supplement would be better addressed through a motion to exclude expert testimony under the standard associated with Daubert, rather than through the procedural issue before the court.

The court stated that the Federal Circuit’s decision did not require supplementation in this case but provided guidance that an unreliable step in a patent-damages case may sometimes be corrected when there is no sound basis to deny the opportunity. The court found that Google’s fairness and timeliness arguments did not justify denying the supplement, particularly because the trial had been further postponed and discovery related to the supplement would be reopened.

Kewazinga was ordered to file the supplemental report by April 22, 2024. Expert discovery was reopened solely for discovery and the deposition of Riley concerning the supplement, and that discovery was required to finish by June 21, 2024. If Google sought to file a motion under Daubert to exclude the supplement, it was required to do so by July 8, 2024; Kewazinga’s response was due July 22, 2024, and no reply was permitted.

Other Orders

The court adjourned the July 8, 2024, trial date to a date to be determined. The parties were directed to file a letter by May 2, 2024, if they sought an order requiring mediation at that time.

The court also granted the sealing motions related to the reconsideration motion and the request to supplement Riley’s report at Docket Nos. 325, 334, and 435. It concluded that filing the documents under seal or in redacted form was necessary to prevent unauthorized disclosure of confidential business information and legal strategies. The Clerk of Court was directed to close those motions.

Disposition

Judge Lorna G. Schofield granted Kewazinga’s motion to supplement Riley’s expert report, adjourned the trial date, and granted the specified sealing motions. The order did not decide the underlying claims between Kewazinga and Google.