Minemyer v. R-Boc Reps., Inc., No. 07 C 1763, Slip Op. (N.D. Ill. Feb. 6, 2012) (Cole, Mag. J.).

Magistrate Judge Cole held that a Verizon Power Point presentation related to an RFP for some of the accused products was admissible in this patent litigation involving couplers. Initially, the document was authentic pursuant to FRE 901 at least because:

• A Verizon declaration established its authenticity; and
• Defendants’ counsel failed to challenge its authenticity for three years after its first use in plaintiff’s damages expert report.

Having held it was sufficiently authenticated, the Court considered whether the presentation was inadmissible hearsay.  The Court held that Verizon’s statement was an FRE 803(b) verbal act, but because plaintiff’s certification of the Power Point was too late, not leaving defendant time to test the veracity of the Power Point it was inadmissible.  But the Court did allow plaintiff’s expert to use the documents because defendants did not timely challenge plaintiff’s expert’s reliance upon the Power Point.  At the eve of trial was too late.