Bernstein v. Virgin America, Inc.
Filing
247
ORDER DENYING MOTION TO STRIKE. Signed by Magistrate Judge Jacqueline Scott Corley on 1/29/2018. (ahm, COURT STAFF) (Filed on 1/29/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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JULIA BERNSTEIN, ET AL.,
Plaintiffs,
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United States District Court
Northern District of California
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Case No.15-cv-02277-JST (JSC)
ORDER DENYING MOTION TO
STRIKE
v.
VIRGIN AMERICA, INC.,
Re: Dkt. Nos. 239, 240, 242
Defendant.
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After reviewing the parties’ separate letter briefs, and after having the benefit of oral
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argument on January 29, 2018, Defendant’s motion to strike David Breashers’ supplemental
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expert report is DENIED. The supplement corrects an error in the damages calculation in the
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original report based on a misinterpretation of some of Virgin’s data. Plaintiffs were obligated to
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provide a supplemental expert report. See Fed. R. Civ. P. 26(e)(2); see also Enplas Display
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Device Corp. v. Seoul Semiconductor Co., Ltd., 2015 WL 13037241 *1 (N.D. Cal. Dec. 21, 2015)
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(“Rule 26(e)(2) clearly envisions the possibility that an error could be made in an expert report
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that would come to light only after the expert’s deposition”). And the supplement was timely. See
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Fed. R. Civ. P. 26(e)(2), (3). Further, Virgin recognized the appropriateness of the supplement by
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offering to agree to its submission provided Plaintiffs agreed to allow it to call Mr. Newbold as a
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witness at trial. As Virgin rejected Plaintiffs’ repeated offers to further depose Mr. Breashers,
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such relief is not proper now.
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IT IS SO ORDERED.
Dated: January 29, 2018
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JACQUELINE SCOTT CORLEY
United States Magistrate Judge
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