Dorn v. Vivint, Inc.

Filing 110

OPINION AND ORDER: it is ORDERED that: 1) The plaintiffs' 93 motion for leave to supplement is granted; 2) The plaintiffs shall, by 2/19/2021, file Lindsay Gill's supplemental expert report (doc. no. 93 - 1) as a supplement to their r eply brief in support of their 52 motion for class certification; The clerk's office shall link the supplement to the exhibits previously filed under seal (doc. no. 96 - 1); 3) Defendant Vivint, Inc.'s 81 motion to exclude the expert r eport and testimony of Lindsay Gill is denied without prejudice; Defendant Vivint, Inc. may file a motion to exclude Gill's supplemented report and testimony by 5:00 p.m. on 3/12/2021; 4) Defendant Vivint, Inc. may file a surreply in opposition to the plaintiffs' motion for class certification by 5:00 p.m. on 3/19/2021. Signed by Honorable Judge Myron H. Thompson on 2/16/2021. (amf, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION TIFFANY DORN, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. VIVINT, INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:19cv258-MHT (WO) OPINION AND ORDER Now pending before the court are the plaintiffs’ motion for leave to supplement the reply brief to their motion for class certification with the supplemental expert Inc.’s report motion of to Lindsay Gill exclude testimony of Lindsay Gill. and the defendant expert Vivint, report and For the reasons below, the court will grant the plaintiffs’ motion for leave to supplement and deny without prejudice Vivint’s motion to exclude. I. The plaintiffs BACKGROUND disclosed the expert report of Certified Fraud Examiner Gill in compliance with the deadlines in the uniform scheduling order. Vivint was provided with a copy of this report and deposed Gill. Gill noted in her report and stated during her deposition that her analysis was based on the limited information the company had disclosed and that required additional data to complete her work. she The plaintiffs requested this information from Vivint as part of their third set of discovery requests. company objected to the request, and the The plaintiffs subsequently filed a motion to compel responses. The parties eventually reached an agreement under which the company agreed to produce the requested data, but only for a subset of its accounts. The company provided these data to Gill and, the following day, filed a motion to exclude her expert report and testimony. 2 Several weeks later, the plaintiffs submitted to Vivint an updated version of Gill’s expert report, which had been revised based on the additional customer data. The company deposed Gill again regarding the contents of the supplemental report. also filed the motion to The plaintiffs supplement now before the court, seeking to include Gill’s supplemental report in support of their motion for class certification. The company opposes this motion. II. STANDARD OF REVIEW Federal Rule of Civil Procedure 26 dictates that the parties must disclose their testifying experts and sets the deadlines and requirements for doing so. party’s expert report must include “a A complete statement of all opinions the witness will express and the basis and 26(a)(2)(B)(i). reasons for them.” Fed. R. Civ. P. Under Rule 26(e), parties have a duty to supplement their expert reports “in a timely manner 3 if the party learns that in some material respect the disclosure ... is incomplete or incorrect.” Civ. P. 26(e)(1)(A). These “additions Fed. R. or changes” “must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.” Fed. R. Civ. P. 26(e)(2). If a party violates Rule 26(a) or (e), Federal Rule of Civil Procedure 37(c) allows the court to prevent the party from using the expert evidence “unless the failure was substantially justified or is harmless.” See also OFS Fitel, LLC v. Epstein, Becker and Green, P.C., 549 F.3d 1344, 1363 (11th Cir. 2008). has “broad discretion” to exclude The court untimely expert analysis, even if the party has designated the analysis as a “supplemental report.” Guevara v. NCL (Bahama) Ltd., 920 F.3d 710, 718 (11th Cir. 2019). 4 III. Vivint argues accurately be DISCUSSION that Gill’s considered a updated report supplement cannot because it contains new opinions based on new methodology. company says considered that an the untimely report effort should to shore The instead up be Gill’s analysis long after the deadline for expert disclosures passed. And company, asked is for this untimeliness, self-inflicted: the relevant according to the plaintiffs should have earlier, before Gill data produced her original report. Rule 26(e) does not give a party license to supplement a previously filed expert report merely to remedy a deficiency or address criticisms. Supplementation is appropriate “for the narrow purpose of correcting inaccuracies or adding information that was not available at the time of the initial report.” Companhia Energetica Potiguar v. Caterpillar Inc., No. 14cv24277, 2016 WL 3102225, at *6 (S.D. Fla. June 2, 5 2016) (Goodman, M.J.). Courts must carefully distinguish between this sort of “true supplementation” and mere “gamesmanship.” Packaging, LLC, 568 Gallagher v. Southern Source F. Supp. 2d 624, 631 (E.D.N.C. 2008) (Dever, J.). It is clear this supplemental report is not the result of gamesmanship. Indeed, the major source of delay in this case has been Vivint, not the plaintiffs. The company drew out the discovery process for months, leaving plaintiffs without access to the data relevant to Gill’s second report until after the deadline for expert disclosures additional carte had information blanche fundamentally to passed. certainly overhaul change her Receiving this did not give completely her report conclusions. Gill However, or the supplemental report offered by the plaintiffs merely builds on and refines the conclusions of the initial report Because based this on is Gill’s analysis exactly the 6 of the type of new data. additional information that courts have found to be acceptable as supplementation, see Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 719 (11th Cir. 2019) (finding that the district court did not abuse its discretion in allowing portions of a supplemental report that “incorporated or relied upon [the other party’s] late discovery”); Deere & Co. v. FIMCO Inc., 260 F. Supp. 3d 830, 837 (W.D. Ky. 2017) (Russell, J.) (holding 700 pages containing over acceptable because it did that of not new change a supplement evidence the was earlier opinions or theories), the plaintiffs were required to produce it under Rule 26(e). It is true that, as Vivint points out, the plaintiffs failed to request the data Gill relies on in her supplemental analysis before her initial report was due. neither However, the court is convinced that this was mismanagement of the case nor a deliberate effort to spring new evidence on the company after the deadline for expert reports had passed. 7 Instead, the delay is the predictable result of Vivint’s failure to respond to discovery requests in a timely and thorough manner. The communications plaintiffs with have opposing produced counsel in numerous which they objected to the company’s slow and deficient discovery responses in the months before Gill produced her original report, revealing a pattern of foot-dragging by the company that undermined the plaintiffs’ ability to identify There is and no obtain the indication information that the they needed. plaintiffs were dilatory in trying to obtain the data used in Gill’s supplemental report: they requested it far before the close of discovery, and the company delayed responding for so compel. long that the plaintiffs filed a motion to Indeed, while the plaintiffs waited only five days after submitting Gill’s initial report to request the additional information she required, it took the company over five months to 8 ultimately produce that information. Vivint cannot force the plaintiffs to shoulder the cost of its own intransigence. Even if the court were to find that this motion to supplement was actually an untimely attempt to bolster Gill’s expert report, there is a lack of sufficient prejudice to support its exclusion. See Fed. R. Civ. P. 37(c)(1); Thompson v. Merrill, No. 2:16cv783, 2020 WL 4756598, at *2 (M.D. Ala. Aug. 17, 2020) (Marks, C.J.). The determination of whether a party's expert evidence should be excluded under Rule 37(c) within the “broad discretion” of the court. lies Abdulla v. Klosinski, 898 F. Supp. 2d 1348, 1359 (S.D. Ga. 2012) (Hall, J.). was Here, there is no indication that Vivint surprised or supplemental report. unduly prejudiced by Gill’s In both her original report and at her deposition, Gill made clear that she intended to perform a more thorough additional data from analysis the company. once she And received since the conclusions expressed in the supplemental report are in 9 line with those in the initial report, the company cannot claim to have been caught unawares by either the existence of the report or the analysis it contained. See Rockhill-Anderson v. Deere & Co., 994 F. Supp. 2d 1224, 1233 (M.D. Ala. 2014) (Watkins, C.J.) (finding little prejudice where an expert’s “ultimate opinion did not change” in the supplemental report and “his new analysis was based on information that always has been within” the possession of the objecting party). Plaintiffs depose Gill also once supplemental The deposition, which to again, report deposition. volunteered and to company the court the is they not company allow provided weeks persuaded agreed Vivint to the before that and to the this which provided the company with an opportunity to satisfy any questions burdensome. it had about Gill’s work, was unduly Nor does the court find that the need for Vivint to seek leave from the court to file a motion pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 10 U.S. 579 (1993), plaintiffs’ motion or a surreply for class in opposition certification to is prejudicial, given the plaintiffs’ lack of opposition to these motions and the fact that the court now grants them. Thus, would be no grounds to exclude Gill’s supplemental expert report even if the court found that it was untimely. * * * Accordingly, it is ORDERED that: (1) The plaintiffs’ motion for leave to supplement (doc. no. 93) is granted. (2) The plaintiffs shall, by February 19, 2021, file Lindsay Gill’s supplemental expert report (doc. no. 93-1) as a supplement to their reply brief in support of their motion for class certification (doc. no. 52). The clerk’s office shall link the supplement to the exhibits previously filed under seal (doc. no. 96-1). (3) Defendant Vivint, Inc.’s motion to exclude the 11 expert report and testimony of Lindsay Gill (doc. no. 81) is denied without prejudice. Defendant Vivint, Inc. may file a motion to exclude Gill’s supplemented report and testimony by 5:00 p.m. on March 12, 2021. (4) Defendant Vivint, Inc. may file a surreply in opposition to the plaintiffs’ motion for class certification by 5:00 p.m. on March 19, 2021. DONE, this the 16th day of February, 2021. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE 12

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