Damages Expert Precluded From Relying on a Settlement Agreement He Was Unable to Review Due to Protective Order Restrictions

The court granted in part plaintiff's motion to exclude the testimony of defendant's damages expert regarding prior settlement agreements because the expert was not authorized to review one agreement under the protective order. "Plaintiff contends that because [the expert] cannot review the terms of [a settlement agreement], 'he cannot offer any opinion about whether the terms of the [OpenKey] Settlement Agreement are a reliable indicator of a reasonable royalty.' . . . Defendant’s argument that [its damages expert] can determine the circumstances surrounding [a] Settlement Agreement from [plaintiff's damages expert's] report alone is flawed. Plaintiff notes that [its own] expert report does not disclose the full terms or circumstances of the [agreement], and points out that the report states that [plaintiff's expert] was unable to draw any meaningful conclusions from [the agreement] under the Georgia-Pacific analysis. Thus, it seems implausible that [defendant's expert] knew of the circumstances or even the terms of the [agreement]. Since [defendant's expert] cannot review the terms of the [agreement], [he] may not rely on the [agreement] in offering his opinion."

S3G Technology LLC v. UniKey Technologies, Inc., 6-16-cv-00400 (TXED May 8, 2018, Order) (Mitchell, MJ)