Attaching portions of a report by plaintiff's non-testifying consulting expert to plaintiff's infringement contentions did not waive any privilege applicable to the expert's report. "Contrary to defendants' assertions, plaintiff is not relying on the 'analyses, data, and conclusions' of [its non-testifying expert] as evidence to support its infringement contentions and proposed claim construction. The purpose of preliminary infringement contentions is to provide notice of the accusing party's specific theories of infringement. A contention, no matter how detailed, is not evidence."
Fast Memory Erase LLC v. Spansion Inc et al., 3-08-cv-00977 (TXND December 16, 2009, Memorandum Order) (Kaplan, M.J.)