Phenix Longhorn, LLC v. AU Optronics Corporation et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
PHENIX LONGHORN LLC,
Plaintiff,
v.
AU OPTRONICS CORPORATION,
HISENSE ELECTRONICA MEXICO,
S.A. DE C.V., HISENSE USA
CORPORATION, HISENSE VISUAL
TECHNOLOGY CO., LTD., and
DOES 1–10,
Defendants.
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CASE NO. 2:23-CV-00477-RWS-RSP
MEMORANDUM ORDER
Before the Court is Plaintiff’s Opposed Motion for Leave to Supplement the Opening
Damages Report of Justin Blok. Dkt. No. 236. The motion is ripe. See Dkt. Nos. 278, 305.
Additionally, the Court carried Defendants’ related arguments for exclusion of Mr. Blok’s
reliance on the RossettiStarr Report to be addressed herein as well from their Daubert motion
to exclude certain portions of Mr. Blok’s expert report. See Dkt. Nos. 251, 294, 335, 340.
In the Motion, Phenix seeks to supplement the report in order to “(1) true-up the
royalty base according to the parties’ agreement with respect to sales with iML chips, (2)
true-up the royalty base to account for newly identified US sales, and (3) include a
calculation of the prejudgment interest from the date of the hypothetical negotiation in 2011
to the present.” See Dkt. No. 236 at 1. Phenix states that it is only requesting leave as to (2)
and (3) because AUO does not oppose supplementation as to (1). See id.
The Court begins by noting that parties may not supplement expert reports after the
deadline without leave. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for
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good cause and with the judge’s consent”); see also United Servs. Auto. Ass’n v. Wells Fargo
Bank, N.A., No. 2:18-CV-366, 2019 WL 7041305, at *1 (E.D. Tex. Dec. 19, 2019) (“[t]he
Court may grant a party leave to supplement its expert’s report after the deadline for ‘good
cause.’” (citing Fed. R. Civ. P. 16(b)(4)).
In determining whether there is good cause to supplement an expert report, this Court
considers “(1) the explanation for the failure to submit a complete report on time; (2) the
importance of the testimony; (3) the potential prejudice in allowing the testimony; and (4)
the availability of a continuance to cure such prejudice.” See G+ Commc’ns, LLC v. Samsung
Elecs. Co., No. 2:22-CV-78, 2023 WL 5617639, at *1 (E.D. Tex. Aug. 30, 2023) (quoting
Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997)).
In Defendants’ response, they indicate that they only oppose supplementation as to
the addition of the RosettiStarr Report. See Dkt. No. 278 at 4–5. Defendants argue that Mr.
Blok should be entitled to supplement to (1) update sales figures based on AUO and
Hisense’s late production of BOMs and sales data, and (2) add pre-judgment interest
calculations, considering that those issues will be addressed post-trial in any event. See id.
Defendants only ask that Mr. Kemmerer be allowed to respond. See id. Plaintiffs agree that
Kemmerer should be allowed to respond on these issues. See Dkt. No. 305 at 5 (“Phenix has
already represented to AUO that it would agree to additional supplement by Mr. Kemmerer
in response to Mr. Blok’s supplement”).
Because Defendants agree with the caveat that Mr. Kemmerer be allowed to
supplement to address changes only, and the Court sees no prejudice in allowing Mr. Blok
to supplement with respect to updated sales figures and pre-judgment interest, and in view
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of his diligence in supplementing with respect to the late-produced documents, the Court
finds good cause to allow supplementation to the limited extent that the Parties have agreed
upon. Thus, Phenix’s Motion is GRANTED to the extent that Mr. Blok is permitted to
supplement his report with respect to updated sales figures and pre-judgment interest
calculations, and Dr. Kemmerer is permitted to supplement in order to respond only to those
updates.
The Court now considers the four factors with respect to the opposed portion of the
Motion: Mr. Blok’s supplementation to add reliance on the RosettiStarr Report. As to
diligence, Phenix argues it was diligent in retaining RosettiStarr “after Phenix learned the
new financial documents, produced six days before the close of fact discovery, still did not
identify the ultimate location where each” customer of AUO shipped its products. See Dkt.
No. 236 at 4. However, as Defendants persuasively argue, Phenix had the documents
necessary to retain RosettiStarr since at least March of 2025, but delayed in doing so until
September. See Dkt. No. 278 at 6. Because the Court finds that Phenix was not diligent, this
factor weighs against allowing supplementation.
As to importance, Phenix argues that supplementation is imperative because the
RossettiStarr Report provides a more reliable basis upon which Mr. Blok can base his
importation analysis. See Dkt. No. 236 at 4. Phenix also argues that Defendants do not
dispute the importance factor. See Dkt. No. 305 at 2. It is unclear whether Defendants do
dispute this factor, however, as their argument is somewhere in between the poles of (i) if it
was important, Phenix would had disclosed it earlier, and (ii) Phenix hid it, so it must have
been important. See Dkt. No. 278 at 9. The Court finds that, while it may provide for a
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slightly more reliable importation analysis for Mr. Blok, because the Court already found
his prior method of estimating importation to be sufficiently reliable for the purposes of
admissibility, it is not of great necessity. Accordingly, this factor only weighs slightly in
favor of supplementation.
As to prejudice, Defendants persuasively argue that they were prevented from
seeking discovery due to the timing of the disclosure of the RosettiStarr Report. See Dkt.
No. 278 at 7–8. Specifically, the report was allegedly served at “7PM the night before AUO’s
damages expert was to be deposed, and two days before Mr. Blok’s deposition.” See id. at
8. Thus, Plaintiff’s rebuttal that it was served before those depositions and Defendants asked
Mr. Blok some questions about it, see Dkt. No. 305 at 4–5, is less persuasive. Defendants
complain that Mr. Kemmerer was unable “to analyze that report prior to his deposition,” and
that Defendants are “left with little to no actual knowledge about the RosettiStar Report and
its underlying data or methodologies” even after Mr. Blok’s deposition, where he disclaimed
knowledge on these aspects of the report. See Dkt. No. 278 at 7–8. Defendants also represent
that, had the RosettiStarr Report been earlier disclosed, they would have “sought discovery
related to . . . work product protection by Phenix” and “investigate[d] the data underlying
[it] including for example whether it [was] based on public or private information.” See id.
at 8. The Court therefore finds that Defendants’ strong showing of prejudice weighs heavily
against allowing the amendment Phenix now seeks.
And, as to the final factor, the availability of a continuance to cure any such
prejudice, the case is set to proceed to trial in just a few days. The Court finds that this factor
therefore weighs against supplementation.
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On balance, because Defendants have made an exceptionally strong showing of
prejudice that clearly outweighs the importance of the RosettiStarr Report, and because
Phenix 	has 	not 	shown 	that 	it 	was 	genuinely 	diligent 	in 	seeking 	the 	Report 	or
supplementation, the Court finds that the factors weigh against allowing supplementation of
Mr. Blok’s opinions to add the RosettiStarr Report. Consequently, the Court finds that
Phenix’s Motion, to the extent that it seeks to supplement Mr. Blok’s importation analysis
with the RossettiStarr Report, should be and hereby is DENIED. Because the Motion is
denied in this regard, the Court does not reach Defendants’ related arguments for exclusion
of Mr. Blok’s reliance on the RossettiStarr Report from their Daubert motion. See Dkt. No.
251.
.
____________________________________
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE
SIGNED this 3rd day of January, 2012.
SIGNED this 14th day of January, 2026.
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