Atmel Corp. v. Information Storage Devices, Inc.

ORDER IN LIMINE EXCLUDING IN PART TESTIMONY OF GEORGE KERN AND DENYING COUNTER-MOTION

INTRODUCTION

This order prohibits expert George Kern from testifying on direct examination to certain conclusions expressed in the expert report required by Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure because those conclusions were based, at the time rendered, on an unreliable methodology. Under the normal operation of Rules 26 and 37 of the Federal Rules of Civil Procedure, an expert may not extend his or her direct testimony beyond the opinions and bases disclosed in the Rule 26(a)(2)(B) report and may not, on direct examination, cover new work done thereafter. Under Rule 702 of the Federal Rules of Evidence, an expert who intends to testify that some seventeen alleged trade secrets were not “generally known” or published during a period several years past must base such an opinion on more than his mere inability to recall having heard of them before the end of the relevant time period. An expert who consciously decides, at the suggestion of litigation counsel, not to review the relevant universe of literature or to consult colleagues familiar with techniques known and unknown…