The Court in Vringo (VRNG) vs. Google (GOOG) just entered its order, granting in part and denying in part Vringo's 2nd and 3rd Motions for Discovery Sanctions against Google. Vringo's motions sought to exclude information that it contends was produced by Google after the required deadlines.
Vringo's Motion for Sanctions No. 2: Granted in part and Denied in Part.
Dr. Becker (Vringo's Damages Expert)
The Court denied Vringo's Motion for Sanctions No. 2, which sought to exclude certain evidence that Vringo alleged was untimely disclosed in the case. The Court ordered Google to produce certain U.S. revenue information to Vringo within two days, and allows Vringo's damages expert, Dr. Stephen Becker, to update his expert's report on damages within two days thereafter.
You may recall that Google previously filed a motion to try to exclude Dr. Becker from testifying at trial based on its disagreement with his methodology in calculating damages. The Court's order allowing Dr. Becker to supplement his report is not explicit, but it suggests that Google's motion to exclude him from testifying at trial will be denied. This would be consistent with the "guess" on this motion that I made in my first article.
Dr. Frieder (Vringo's Liability Expert)
The Court also denied the portion of Vringo's Motion for Sanctions No. 2, which sought to exclude Google's evidence of non-infringing alternatives, but allows Dr. Ophir Frieder, Vringo's liability expert, to supplement his expert's report to respond to this information by Friday, October 12, 2012.
Here again, you may recall that Google previously filed a motion to try to exclude certain supplemental opinions by Dr. Frieder. It does NOT appear that this order resolves Google's prior motion, but allows Dr. Frieder to make an additional supplementation of his report.
Vringo's Motion for Sanctions No. 3: The Court denied Vringo's Motion for Sanctions No. 3. In this motion, Vringo sought to exclude 250 pages of source code Google has offered to rebut the claim of infringement prior to November 8, 2010. According to Vringo at the time it filed its Motion for Sanctions No. 3, Vringo was unable to evaluate the importance of this source code as of the date of the filing of this motion. If allowed, the Court's order allowing Dr. Frieder to supplement his expert's report would likely also cover his ability to supplement his opinions regarding the new source code as well.
On balance, the Court's order regarding the motions for sanctions matches what one would normally expect. In a complex case such as this one, Courts tend to favor allowing relevant evidence into the case, and allowing the opposing party (in this case Vringo) to have their experts supplement their reports to take all evidence into account.