IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION 

WSOU INVESTMENTS, LLC d/b/a 

BRAZOS LICENSING AND 

DEVELOPMENT, 

Plaintiff, 

v. 

DELL TECHNOLOGIES INC., 

DELL INC., EMC CORPORATION, 

AND VMWARE, INC., 

Defendants. 

Civil Action No.: 6:20-cv-00480-ADA-DTG 

Civil Action No.: 6:20-cv-00481-ADA-DTG 

Civil Action No.: 6:20-cv-00486-ADA-DTG 

JURY TRIAL DEMANDED 

PLAINTIFF’S OBJECTIONS TO AND APPEAL FROM MAGISTRATE JUDGE’S 

REPORT AND RECOMMENDATION GRANTING DEFENDANTS’ MOTION TO 

STRIKE CERTAIN PORTIONS OF MR. ROY WEINSTEIN’S EXPERT REPORT 

Plaintiff respectfully objects to and appeals Magistrate Judge Gilliland’s Report and 

Recommendation (Dkt. 345, the “R&R”) granting Defendants’ Motion to Strike Certain Portions 

of Mr. Roy Weinstein’s Expert Report (the “Motion”). See, e.g., Baylor Health Care Sys. v. 

Equitable Plan Servs., 955 F. Supp. 2d 678, 689 (N.D. Tex. 2013); see also Fed. R. Civ. P. 72(a) 

(“The district judge in the case must consider timely objections and modify or set aside any part 

of the order that is clearly erroneous or is contrary to law.”). 

A. Granting Defendants’ Motion to Strike was Clearly Erroneous 

The R&R is clearly erroneous. During the hearing held on January 27, 2023, Magistrate 

Judge Gilliland declined to hear oral argument on the Motion, and issued a ruling from the bench 

granting it, with the only stated reason being that Plaintiff had fought in the discovery stage to 

preclude negotiation materials. But Brazos’s position of damages during discovery does not 

warrant granting the Motion, particularly since the Motion was based on Defendants’ contention 

that Brazos violated its disclosure obligations under Rule 26, and thus Fed. R. Civ. P. 37(c)(1) 

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should apply. Brazos’s damages expert, Mr. Roy Weinstein, 

 – a witness that was properly disclosed to, and thoroughly 

deposed by, Defendants. As such, Brazos satisfied its obligations under Rule 26 and Mr. 

Weinstein’s report complies with all applicable rules regarding admissibility, reliability, and 

disclosure. 

In the Motion, Defendants moved to strike the following two sentences of Mr. Weinstein’s 

October 3, 2022 Expert Report: 

 

Dkt. 285-1 (Ex. 1 (Weinstein Expert Report) ¶ 47). But in its Opposition, Brazos outlined the facts 

and law which supported its arguments for why Mr. Weinstein’s reliance on these statements were 

proper and should not be stricken. 

The two sentences Defendants moved to strike were made with regard to 

Defendants deposed Mr. Weinstein on December 1, 2022, and noted during questioning that 

 But the only questions Defendants asked about the 

conversation were how long it was and if any notes were taken. Id. 

Defendants also deposed 

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Defendants also deposed 

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Mr. Weinstein included information in his report 

 and disclosed the source of that information in his report. Dkt. 285-1 

(Ex. 1 ¶ 47, fn 83-84). Defendants had the opportunity to depose Mr. Weinstein regarding the 

conversation at issue and the underlying information. 

refused to answer questions regarding the Executed Licenses that were covered in 

, but in fact did answer questions on the topic which were posed to 

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them. Because the witnesses Mr. Weinstein relied on were timely and properly disclosed, 

subsequently deposed, and did not refuse questioning on this topic, there has been no violation of 

disclosure under Rule 26, and Fed. R. Civ. P. 37(c)(1) is entirely inapplicable. As such, the R&R’s 

granting of the Motion is clearly erroneous. 

This case is no different than Image Processing Techs., LLC v. Samsung Elecs. Co., where 

the Court denied a motion to strike an expert’s opinions where the expert relied on a discussion 

with the defendant’s employee regarding the importance of accused software. 2020 WL 3512957, 

at *2–3. The court in Image Processing noted that the defendant “cite[d] no legal authority 

indicating that an expert may not rely on post-discovery conversations with a fact witness who was 

timely disclosed in his report” and that in that case, the fact witness “was disclosed as a person 

with relevant knowledge, and actually deposed, during fact discovery.” Id.; see also Genband US 

LLC v. Metaswitch Networks Corp., No. 2:14-CV-33-JRG-RSP, 2016 WL 125503, at *3 (E.D. 

Tex. Jan. 9, 2016) (refusing to strike expert testimony because expert’s “reliance on conversations 

[with fact witnesses] does not provide a basis to strike his testimony” under FRE 702, where the 

expert disclosed such conversations in his report); Tinnus Enterprises, LLC v. Telebrands Corp., 

No. 6:17-CV-00170-RWS, 2018 WL 6423377, at *3 (E.D. Tex. Oct. 31, 2018) (refusing the strike 

portion of report relying on hearsay conversations where “information could have been easily 

further explored during a deposition” and that instead defendants were free to cross examine on 

these points.). 

B. Granting the Motion is Inconsistent with This Court’s Other Rulings 

Judge Gilliland granted Defendants’ Motion to strike 

 Judge Gilliland denied Plaintiff’s motion, 

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Precluding Plaintiff’s reliance on negotiation materials – but allowing Defendants to rely 

on them – is inconsistent and irreconcilable. The Court provided no rationale for granting 

Defendants’ Motion beyond Plaintiff’s stance on discovery of negotiation materials, a stance the 

Court itself previously agreed with and ordered should be excluded from discovery. But now the 

Court is not only taking positions inconsistent with its own discovery orders, it is taking positions 

that are inconsistent within the same R&R, unfairly penalizing only Plaintiff by allowing 

Defendants to rely on negotiation materials at trial while not allowing Plaintiff to do the same. 

C. The Relief Sought by Defendants in Their Conclusion is Broader than the Motion 

While Defendants’ Motion purports to strike two specific sentences of Mr. Weinstein’s 

report, its conclusion also includes the requested relief of “preclude[ing] WSOU from relying on 

undisclosed evidence of its license negotiations in subsequent motions, hearings, or at trial.” 

Dkt. 253 at 5. This a broader and more sweeping request than the Motion itself covers argument 

on, and the Court should not sweep in generalized relief not covered by the arguments in the 

Motion itself. 

D. Conclusion 

For these reasons, Plaintiff respectfully requests that this Court sustain Plaintiff’s 

objections and vacate Magistrate Judge Gilliland’s Report and Recommendation granting 

Defendants’ Motion to Strike Certain Portions of Mr. Roy Weinstein’s Expert Report. 

 

1

 Submitted herewith is the Declaration of Jonathan K. Waldrop, dated February 10, 2023 

(“Waldrop Declaration”). “Ex.” Refers to exhibits attached to the Waldrop Declaration. 

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Dated: February 10, 2023 RESPECTFULLY SUBMITTED, 

By: /s/ Jonathan K. Waldrop 

Jonathan K. Waldrop (CA Bar No. 297903) 

(Admitted in this District) 

jwaldrop@kasowitz.com 

Darcy L. Jones (CA Bar No. 309474) 

(Admitted in this District) 

djones@kasowitz.com 

Marcus A. Barber (CA Bar No. 307361) 

(Admitted in this District) 

mbarber@kasowitz.com 

John W. Downing (CA Bar No. 252850) 

(Admitted in this District) 

jdowning@kasowitz.com 

Heather S. Kim (CA Bar No. 277686) 

(Admitted in this District) 

hkim@kasowitz.com 

ThucMinh Nguyen (CA Bar No. 304382) 

(Admitted in this District) 

tnguyen@kasowitz.com

Chen Jia (CA Bar No. 281470) 

(Admitted in this District) 

cjia@kasowitz.com 

KASOWITZ BENSON TORRES LLP 

333 Twin Dolphin Drive, Suite 200 

Redwood Shores, California 94065 

Telephone: (650) 453-5170 

Facsimile: (650) 453-5171 

Paul G. Williams (GA Bar No. 764925) 

(Admitted in this District) 

pwilliams@kasowitz.com 

KASOWITZ BENSON TORRES LLP 

1230 Peachtree Street N.E., Suite 2445 

Atlanta, Georgia 30309 

Telephone: (404) 260-6080 

Facsimile: (404) 260-6081 

Hershy Stern (NY Bar No. 4631024) 

(Admitted pro hac vice) 

hstern@kasowitz.com 

Howard L. Bressler (NY Bar No. 2487379) 

(Admitted pro hac vice) 

hbressler@kasowitz.com 

Joshua A. Whitehill (NY Bar No. 4766473) 

(Admitted pro hac vice) 

jwhitehill@kasowitz.com 

Julianne Laporte (NY Bar No. 5547906) 

(Admitted pro hac vice) 

jlaporte@kasowitz.com 

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Noah P. Dorman (DC Bar No. 1779821) 

(Admitted pro hac vice) 

ndorman@kasowitz.com 

KASOWITZ BENSON TORRES LLP 

1633 Broadway 

New York, NY 10019 

Telephone: (212) 506-1700 

Facsimile: (212) 506-1800 

Mark D. Siegmund (TX Bar No. 24117055) 

mark@swclaw.com 

Craig D. Cherry (TX Bar No. 24012419) 

craig@swclaw.com 

Justin W. Allen (TX Bar No. 24081977) 

justin@swclaw.com 

Melissa S. Ruiz (TX Bar No. 24128097) 

melissa@swclaw.com 

STECKLER WAYNE CHERRY & LOVE 

PLLC 

8416 Old McGregor Road 

Waco, TX 76712 

Telephone: (254) 651-3690 

Facsimile: (254) 651-3689 

Gregory P. Love (TX Bar No. 24013060) 

greg@swclaw.com 

STECKLER WAYNE CHERRY & LOVE 

PLLC 

107 East Main Street 

Henderson, TX 75652 

Telephone: (903) 212-4444 

Facsimile: (903) 392-2267 

Attorneys for Plaintiff 

WSOU INVESTMENTS, LLC d/b/a 

BRAZOS LICENSING AND 

DEVELOPMENT 

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CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing instrument was served or 

delivered electronically via email to all counsel of record, on this 

/s/ Jonathan K. Waldrop 

Jonathan K. Waldrop 

17th day of February, 2023, via the

Court's CM/ECF System.

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