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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JULIA BERNSTEIN, ET AL., Plaintiffs, 8 9 10 United States District Court Northern District of California 11 Case No.15-cv-02277-JST (JSC) ORDER DENYING MOTION TO STRIKE v. VIRGIN AMERICA, INC., Re: Dkt. Nos. 239, 240, 242 Defendant. 12 After reviewing the parties’ separate letter briefs, and after having the benefit of oral 13 argument on January 29, 2018, Defendant’s motion to strike David Breashers’ supplemental 14 expert report is DENIED. The supplement corrects an error in the damages calculation in the 15 original report based on a misinterpretation of some of Virgin’s data. Plaintiffs were obligated to 16 provide a supplemental expert report. See Fed. R. Civ. P. 26(e)(2); see also Enplas Display 17 Device Corp. v. Seoul Semiconductor Co., Ltd., 2015 WL 13037241 *1 (N.D. Cal. Dec. 21, 2015) 18 (“Rule 26(e)(2) clearly envisions the possibility that an error could be made in an expert report 19 that would come to light only after the expert’s deposition”). And the supplement was timely. See 20 Fed. R. Civ. P. 26(e)(2), (3). Further, Virgin recognized the appropriateness of the supplement by 21 offering to agree to its submission provided Plaintiffs agreed to allow it to call Mr. Newbold as a 22 witness at trial. As Virgin rejected Plaintiffs’ repeated offers to further depose Mr. Breashers, 23 such relief is not proper now. 24 25 IT IS SO ORDERED. Dated: January 29, 2018 26 27 28 JACQUELINE SCOTT CORLEY United States Magistrate Judge

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