Zest IP Holdings, LLC et al v. Implant Direct MFG. LLC et al

Filing 320

ORDER Granting 201 Motion to Strike the Joint Expert Report of Scott D. Hampton And Bruce G. Silverman Pursuant To Rule 37(c). Signed by Magistrate Judge William V. Gallo on 12/17/2013. (srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ZEST IP HOLDINGS, LLC,
et al.,

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Plaintiffs,
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v.

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IMPLANT DIRECT MFG., LLC,
et al.,

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Defendants.
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Civil No.10-0541-GPC(WVG)
ORDER GRANTING MOTION TO
STRIKE THE JOINT EXPERT
REPORT OF SCOTT D.
HAMPTON AND BRUCE G.
SILVERMAN PURSUANT TO
RULE 37(c)
(Doc. No. 201)

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18

Plaintiffs Zest IP Holdings (“Plaintiffs”) have made

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a Motion To Strike The Joint Expert Report Of Scott D.

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Hampton And Bruce G. Silverman Pursuant To Rule 37(c)

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(“Motion”). Defendants Implant Direct Mfg. (“Defendants”)

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have filed an Opposition to the Motion. Plaintiffs have

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filed a Reply to Defendants’ Opposition. The Court, having

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reviewed the moving, opposition, reply papers, the record

25

in this case, and GOOD CAUSE APPEARING, HEREBY GRANTS

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Plaintiff’s Motion.

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10cv0541

1

I

2

FACTUAL BACKGROUND
On February 9, 2011, the Court issued a Case Manage-

3
4

ment

5

Pretrial Proceedings (“Feb. 9, 2011 Order”). The Feb. 9,

6

2011 Order states, inter alia:

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8
9
10

Conference

Order

Regulating

Discovery

And

Other

On or before December 15, 2011, all parties
shall exchange with all other parties a list
of all expert witnesses expected to be called
at trial... On or before December 29, 2011,
any party may supplement its designation so
long as that party has not previously retained
an expert to testify on that subject.
(Feb. 9, 2011 Order, at 7).

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12

On December 15, 2011, Plaintiffs designated Susan

13

McDonald.

Ph.D.

(“McDonald”)

to

testify

as

an

expert

14

witness regarding their claims of trademark infringement

15

in this case.

16

On December 29, 2011, Defendants designated Hal

17

Poret (“Poret”) to testify as an expert witness regarding

18

Plaintiffs’ claims of trademark infringement in this case.

19

On December 19, 2012, the Court issued a Sixth

20

Amended

21

Discovery And Other Pretrial Proceedings (“Sixth Amd. CMC

22

Order”), which states inter alia:

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24
25
26
27
28

Case

Management

Conference

Order

Regulating

Each expert witness designated by a party
shall prepare a written report to be provided
to all other parties no later than January 22,
2013, containing the information required by
Fed. R. Civ. P. 26(a)(2)(A) and (B).
... Any party that fails to make these disclosures shall not, absent substantial justification, be permitted to use evidence or testimony not disclosed at any hearing or at the
time of trial. In addition, the Court may
impose sanctions as permitted by Fed. R. Civ.
P. 37(c).
2

10cv0541

6

Any party... shall in accordance with Fed. R.
Civ. P. 26(a)(2)(C) and Fed. R. Civ. P. 26(e),
supplement any of its expert reports regarding
evidence intended solely to contradict or
rebut evidence on the same subject matter
identified in an expert report submitted by
another party. Any such supplemental reports
are due on February 11, 2013. (Sixth Amended
Case Management Conference Order Regulating
Discovery And Other Pretrial Proceedings, at
2)(emphasis in original).

7

On February 7 and 13, 2013, Defendants requested

8

that Plaintiffs agree to extend the dates by which their

9

supplemental expert reports regarding Plaintiffs’ trade-

10

mark infringement claims were due. Plaintiffs agreed to

11

the requested extensions of the dates. Defendants did not

12

seek the Court’s approval of the extensions of dates about

13

which Plaintiffs agreed

1
2
3
4
5

14

On February 21, 2013, Defendants requested for a

15

third time that Plaintiffs agree to extend the date by

16

which their supplemental expert reports regarding Plain-

17

tiffs’ trademark infringement claims were due. At this

18

time, and for the first time, Defendants informed Plain-

19

tiffs that Defendants were designating two new expert

20

witnesses,

21

Silverman (“Silverman”). Defendants again did not seek the

22

Court’s approval for the requested extension of dates, nor

23

did they seek the Court’s approval to designate two new

24

expert witnesses.

25

Also,

Scott

at
that

D.

this

Hampton

time,

(“Hampton”)

and

Bruce

Defendants
decided

Defendants

acknowledged
retain

two

to

26

Plaintiffs

27

rebuttal experts regarding Plaintiffs’ trademark infringe-

28

ment claims in place of Poret, after they read Plaintiffs’
3

to

G.

new

10cv0541

1

expert McDonald’s expert report on Plaintiffs’ trademark

2

infringement claims. Defendants explained that they would

3

not use Poret as an expert witness because: (1) McDonald’s

4

report

5

Plaintiffs’ trademark infringement claims; and, (2) Poret

6

could not opine on Plaintiffs’ trademark infringement

7

claims if the evidence upon which Plaintiffs rely to prove

8

their

9

surveys.

10

did

not

trademark

rely

on

trademark

infringement

Plaintiffs

refused

to

surveys

claims

grant

is

to

not

support

trademark

Defendants’

third

11

request for extension of the date for when Defendants’

12

supplemental expert report regarding Plaintiffs’ trademark

13

infringement claims were due. Defendants did not seek the

14

Court’s assistance or intervention to resolve the dispute.

15

On

16

Plaintiffs

17

February

19

rebuttal

2013,

Defendants

expert

report

of

submitted
Hampton

to

Silverman.

18

the

25,

and

II
APPLICABLE STATUTORY LAW

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Fed. R. Civ. P. 16 provides that the Court must

21

issue a scheduling order. The scheduling order must limit

22

the time to amend pleadings, complete discovery and file

23

motions. Fed. R. Civ. P. 16(b)(1),(3)(A). The scheduling

24

order may modify the timing of disclosures under Rule

25

26(a) and 26(e)(1). Fed. R. Civ. P. 16(b)(3)(B)(i). A

26

scheduling order may be modified only for good cause and

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with the judge’s consent. Fed. R. Civ. P. 16(b)(4).

28

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10cv0541

1

Fed. R. Civ. P. 26 provides that a party must

2

disclose to other parties expert witnesses it may use at

3

trial. Fed. R. Civ. P. 26(a)(2)(A). A party must make its

4

expert

5

sequence

6

26(a)(2)(D) (emphasis added). Absent a court order, expert

7

witness disclosures must be made at least 90 days before

8

the date set for trial, or in the case of rebuttal expert

9

witnesses, within 30 days after the other party’s disclo-

witness

10

sure.

11

that

Fed.

R.

disclosures
the

Civ.

Court

P.

“at

the

orders.”

times
Fed.

26(a)(2)(D)(i),

and
R.

(ii)

in
Civ.

the
P.

(emphasis

added).
Fed. R. Civ. P. 26(e) states in pertinent part: “For

12
13

an

expert

whose

report

must

be

disclosed

under

Rule

14

26(a)(2)(B), the party’s duty to supplement extends both

15

to information included in the report and to information

16

given during the expert’s deposition.”

17

Fed. R. Civ. P. 37(c)(1) states:

18

If a party fails to provide information or identify

19

a witness as required by Rule 26(a) or (e), the party is

20

not allowed to supply evidence in a motion, at a hearing,

21

or at trial, unless the failure was substantially justi-

22

fied or is harmless...
District courts are given particularly wide latitude

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24

in

their

discretion

to

issue

25

37(c)(1). Yeti By Molly, Ltd. v. Deckers Outdoor Corp.,

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259 F.3d 1101, 1106 (9th Cir. 2001). Rule 37(c)(1) is

27

recognized as broadening the court’s sanctioning power.

28

The rule is a “self-executing,” “automatic” sanction to
5

sanctions

under

Rule

10cv0541

1

“provide... a strong inducement for disclosure of mate-

2

rial...” Yeti By Molly, supra, at 1106, citing Fed. R.

3

Civ. P. 37 Advisory Committee Notes (1993). Exclusion of

4

an expert witness report is an appropriate remedy for

5

failing to fulfill the required disclosure requirements of

6

Rule 26(a). Yeti By Molly, supra, at 1106.

7

“Two express exceptions ameliorate the harshness of

8

Rule 37(c)(1): The information may be introduced if the

9

parties’ failure to disclose the required information is

10

substantially

justified

or

harmless.”

Yeti

By

Molly,

11

supra, at 1106. (emphasis added).

12

party facing sanctions to prove harmlessness. Yeti By

13

Molly, supra, at 1106-1107, Goodman v. Staples, 644 F.3d

14

817 (9th Cir. 2011). There is no requirement that a court

15

find that the failure to disclose (or delay in disclosing)

16

was willful or in bad faith. Yeti By Molly, supra, at

17

1107.

The burden is on the

18

Numerous courts in the Ninth Circuit have followed

19

the above-noted precepts. See Strong v. Valdez Fine Foods,

20

2011 WL 455285 at *4 (S.D. Cal. 2011), rev’d on other

21

grounds 724 F.3d 1042 (2013)(exclusion of expert’s decla-

22

ration and rebuttal report as evidence to support motion

23

for summary judgment appropriate due to late designation

24

of expert), Corby v. American Express Co., 2011 WL 4625719

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at *1, n.1 (C.D. Cal. 2011)(same), Wilson v. Tony M.

26

Sanchez & Co, Inc., 2009 WL 173249 at *3-4 (E.D. Cal.

27

2009)(same), Mendez v. Unum Life Ins. Co. Of America, 2005

28

WL 1865426 at *3 (N.D. Cal. 2005)(granting in part and
6

10cv0541

1

denying in part motion to exclude expert testimony due to

2

late disclosure of expert’s report).

3

III

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ANALYSIS

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A. Defendants Were Not Substantially Justified In
Designating New Expert Witnesses and Providing
Expert Reports By Those Expert Witnesses

7

Plaintiffs argue that Defendants were not substan-

5

8

tially

justified

9

regarding

in

designating

Plaintiffs’

new

trademark

expert

infringement

witnesses
claims.

10

Plaintiffs assert that Defendants should have anticipated

11

that they would need a rebuttal trademark infringement

12

expert

13

claims in the absence of trademark surveys. Plaintiffs

14

contend that Defendants knew as early as April 2012, and

15

specifically in May 2012, that Plaintiffs had not con-

16

ducted any trademark surveys, that no such surveys were in

17

progress and that Plaintiffs were willing to produce a

18

witness for deposition to confirm these facts. Despite

19

Defendants’ knowledge that Plaintiffs had not, and would

20

not, conduct trademark surveys, Defendants did not attempt

21

to inform the Court that it had designated an expert

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(Poret) who could not respond to Plaintiffs’ expert’s

23

report. Nor did Defendants attempt to seek leave of court

24

to amend the Feb. 9, 2011 Order or the Sixth Amd. CMC

25

Order so that new dates for Hampton’s and Silverman’s

26

designation and report deadlines could be established.

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that

could

Defendants

analyze

argue

the

that

trademark

they

were

infringement

substantially

justified in designating new expert witnesses and provid7

10cv0541

1

ing their reports to Plaintiffs. Defendants assert that

2

after they read Plaintiffs’ expert’s (McDonald’s) report,

3

they realized that Poret was not the appropriate person to

4

rebut McDonald’s report because Poret was a survey expert

5

and McDonald’s report did not rely on survey evidence.

6

Defendants claim that at the time they designated Poret,

7

they could not have known that McDonald would not rely on

8

survey evidence. So, Defendants promptly retained Hampton

9

and Silverman and identified them to Plaintiffs on Febru-

10

ary 21, 2013 and provided their report to Plaintiffs on

11

February 25, 2013. Further, Defendants argue that they

12

were

13

26(a)(2)(D)(i), which allows them to disclose their expert

14

witnesses 90 days before the date set for trial or in the

15

case of rebuttal experts, within 30 days after the other

16

party’s disclosure.

following

the

requirements

of

Fed.

R.

Civ.

P.

17

Defendants arguments are not well taken. First,

18

since trademark infringement may be proven in many ways,

19

with or without trademark survey evidence, Defendants’

20

selection

21

expert, was improvident. This is especially true since as

22

early as May 2012, Defendants knew that Plaintiffs were

23

not relying on trademark survey evidence to prove their

24

trademark infringement claims because Plaintiffs told them

25

so. While Poret was designated as an expert on December

26

29, 2011, Defendants did nothing after they learned that

27

Plaintiffs would not rely on trademark survey evidence, to

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seek leave of court to designate a new trademark infringe-

and

retention

of

8

Poret,

a

trademark

survey

10cv0541

1

ment

expert

that

would

not

rely

on

trademark

survey

2

evidence. Instead, Defendants waited until February 21,

3

2013 to inform Plaintiffs (but not the Court) that Poret

4

was not a suitable expert and that they were designating

5

two new experts. Thereafter, they provided the new ex-

6

perts’ report to Plaintiffs. Defendants’ actions in this

7

regard clearly violated the Feb. 9, 2011 Order and the

8

Sixth Amd. CMC Order.

9

Second, Defendants’ reliance on the requirements of

10

Fed. R. Civ. P. 26(a)(2)(D) is misplaced. Fed. R. Civ. P.

11

16(b)(3)(B)(i) clearly states that a scheduling order

12

issued by a court may modify the timing of disclosures

13

under

14

26(a)(2)(D) clearly states that a party must make its

15

expert witness disclosures at the times and in the se-

16

quence that the Court orders. Fed R. Civ. P. 26(a)(2)(D)

17

(i), (ii) clearly states that absent a court order, the

18

parties are required to follow Rule 26(a)(2)(D)(i). Here,

19

the Feb. 9, 2011 Order and the Sixth Amd. CMC Order are

20

court orders which trumped the parties from the alterna-

21

tive

22

26(a)(2)(D)(i). Further, the Feb. 9, 2011 Order clearly

23

states the date by which supplemental expert reports were

24

due. Additionally, the Sixth Amd. CMC Order clearly states

25

that any party shall supplement any of its expert reports

26

regarding evidence solely to contradict or rebut evidence

27

on the same subject matter identified in an expert report

28

submitted by another party. Moreover, the Sixth Amd. CMC

Rules

26(a)

disclosure

and

26(e)(1).

requirements

9

of

Fed.

Fed.

R.

R.

Civ.

Civ.

P.

P.

10cv0541

1

Order

clearly

2

prepare a written report to be provided to all parties no

3

later than January 22, 2013. The Sixth Amd. CMC Order

4

clearly

5

expert’s report shall not, absent substantial justifica-

6

tion,

7

disclosed, at any hearing or at the time of trial. Fi-

8

nally, the Sixth Amd. CMC Order clearly notifies the

9

parties, that in addition to the exclusion of evidence

10

noted in the preceding sentence, the Court may impose the

11

sanctions permitted by Fed. R. Civ. P. 37(c).

warns

be

states

that

permitted

a

to

that

each

party’s

use

expert

failure

evidence

witness

to

or

shall

provide

testimony

the

not

12

The Court concludes that Defendants’ lack of dili-

13

gence in failing to timely inform Plaintiffs and the Court

14

that their designated trademark infringement expert was

15

not suitable to rebut Plaintiffs’ expert’s report, their

16

lack of diligence in seeking a remedy therefor, and their

17

misplaced reliance on Fed. R. Civ. P. 26(a)(2)(D)(i), do

18

not constitute substantial justification under Fed. R.

19

Civ. P. 37(c)(1). Since Defendants chose to designate a

20

trademark infringement expert that could only analyze

21

Plaintiffs’ trademark infringement claims using trademark

22

surveys, and chose to not seek relief from the Court when

23

their designated expert was determined to be unsuitable,

24

it did so at its own peril. Yeti By Molly, 259 F.3d at

25

1106-1107, Quevedo v. Trans-Pacific Shipping, Inc., 143

26

F.3d 1255, 1258 (9th Cir. 1998). Mendez v. Unum, 2005 WL

27

1865426 at *3.

28

10

10cv0541

B. Defendants’ Failure To Timely Identify Their New
Experts Was Not Harmless
Plaintiffs argue that Defendants’ untimely designa-

1
2
3

tion

of

their

4

harmless because it prejudices them. They assert that

5

allowing Defendants to untimely designate new trademark

6

infringement experts rewards Defendants’ recalcitrant and

7

improvident conduct. Specifically, Plaintiffs contend that

8

the fact that after Plaintiffs provided McDonald’s expert

9

report to Defendants, Defendants sought extensions of time

10

from them to provide their rebuttal expert report, while

11

concealing

12

intended to designate new experts and provide a report

13

from the new experts. Therefore, Plaintiffs assert that

14

Defendants’ conduct was calculated to seek an improper

15

tactical advantage over them.

from

trademark

infringement

Plaintiffs,

and

the

experts

Court,

is

that

not

they

16

Defendants argue that their late disclosure of the

17

new expert witnesses is harmless. They contend that the

18

depositions of expert witnesses have not commenced, all

19

future deadlines in the case have been stayed, and no

20

trial date has been set. Therefore, they assert that their

21

late disclosures did not harm Plaintiffs.

22
23
24
25
26
27
28

In Wong v. Regents of the University of California,
410 F.3d 1052, 1060 (9th Cir. 2005), the court stated:
In these days of heavy caseloads, trial
courts... routinely set schedules and establish deadlines to foster the efficient treatment and resolution of cases. Those efforts
will be successful only if the deadlines are
taken seriously by the parties, and the best
way to encourage that is to enforce the deadlines. Parties must understand that they will
pay a price for failure to comply strictly
with scheduling and other orders, and that
11

10cv0541

failure to do so may properly support severe
sanctions and exclusion of evidence.

1
2
3

In Wong, the Ninth Circuit upheld a district court’s

4

ruling that the testimony of expert witnesses designated

5

after the expert witness disclosure deadline had passed,

6

was properly excluded from use in a motion for summary

7

judgment. The court affirmed the district court’s ruling

8

that the late expert designation was not harmless, even

9

though the trial date in the case was several months away.

10

In doing so, the court stated:
If (Plaintiff) had been permitted to disregard
the deadline for identifying expert witnesses,
the rest of the schedule laid out by the court
months in advance, and understood by the
parties, would have to have been altered as
well. Disruption to the schedule of the court
and other parties is not harmless. Courts set
such schedules to permit the court and the
parties to deal with cases in a thorough and
orderly manner, and they must be allowed to
enforce them, unless there are good reasons
not to.
Wong, supra, at 1062 (emphasis added).

11
12
13
14
15
16
17
18

See

19

Systems,Inc.,

20

2006)(exclusion of expert’s report due to lack of dili-

21

gence and lack of harmlessness in timely disclosure of

22

expert’s report), Paramount Pictures Corp. v. Interna-

23

tional Media Films, Inc., 2013 WL 3215189 at *9 (C.D. Cal.

24

2013)(exclusion of expert’s report due to lack of dili-

25

gence and lack of harmlessness in timely disclosure of

26

expert’s testimony in motion for summary judgment), Nehara

27

v.

28

2013)(exclusion of expert’s report due to lack of dili-

also

02

Micro

California,

467

2013

Intern
F.3d

WL

Ltd.

1355,

1281618

12

v.

Monolithic

Power

(9th

Cir.

1368-1369

at

*6-7

(E.D.

Cal.

10cv0541

1

gence and lack of harmlessness in timely disclosure of

2

expert’s report and willful disregard of court’s schedul-

3

ing order), Tamburri v. Sun Trust Mortgage, Inc., 2013 WL

4

3152921

5

report due to late disclosure of expert’s report and non-

6

compliance with previous order of the court).

at

*2

(N.D.

Cal.

2013)(exclusion

of

expert’s

7

Here, had Defendants timely sought relief to desig-

8

nate new trademark infringement experts in, or shortly

9

after, May 2012, it is possible that the Court’s estab-

10

lished schedule would not have been disrupted. However,

11

Defendants fail to show that their late designation of

12

trademark infringement experts and provision of those

13

experts’ reports to Plaintiffs were harmless. Defendants

14

did not seek relief to designate new experts, and after

15

reading Plaintiffs’ expert’s report, unilaterally, and

16

without court approval, designated new trademark infringe-

17

ment experts approximately one year and two months after

18

their expert designation was due. The late designation of

19

experts and the provision of those experts’ reports to

20

Plaintiffs was done approximately ten months after Defen-

21

dants

22

expert would not rely on trademark survey evidence and

23

that

24

surveys. Such non-compliance with the deadlines set by the

25

Court and Defendants’ recalcitrance supports the finding

26

that Defendants’ late designation of new experts and late

27

provision of the new experts’ report was not harmless.

learned

their

own

that

Plaintiffs’

expert

could

trademark

only

opine

infringement

on

trademark

28

13

10cv0541

1

In 1993, Rule 37(c)(1), in its present form, was

2

added to Rule 37. Rule 37(c)(1) is written using the

3

disjunctive “or,” not the conjunctive “and,” in outlining

4

two circumstances where failure to disclose may be ex-

5

cused. Therefore, it would seem that one or the other

6

bases may let the offending party off the hook. The

7

language of the Advisory Committee Notes, when the amend-

8

ment was added, bear this interpretation out:
“Limiting

9

the

substantial

automatic

sanction

‘without

11

exception for violations that are ‘harmless,’ is needed to

12

avoid

13

tions...” Fed. R. Civ. P. 37 Advisory Committee Notes

14

(1993)(emphasis added).

harsh

penalties

in

a

coupled

violations

10

unduly

justification’

to

variety

with

of

the

situa-

15

In other words, a party that is unable to demon-

16

strate substantial justification for its delay or failure

17

to disclose or supplement may avoid sanctions if the

18

opposing party is not harmed or prejudiced by the delay or

19

failure. None of the examples justifying excusal contained

20

in the 1993 Advisory Committee Notes are present here.

21

Tellingly, the Advisory Committee Notes indicate that

22

exclusion of a witness or evidence is appropriate when a

23

pro se litigant is informed by the court of the require-

24

ment for disclosure and does not make the disclosure

25

despite being so informed.

26

In this case, counsel for Defendants are highly

27

experienced attorneys, not naive and inexperienced pro se

28

litigants. Moreover, Defendants were well aware of the
14

10cv0541

1

requirements to disclose experts and experts’ reports, and

2

the timing of those disclosures.
Defendants’

3

failure

to

demonstrate

substantial

4

justification for the delay in disclosing Hampton and

5

Silverman, by itself would have been sufficient to grant

6

Plaintiffs’ Motion. However, as noted above, Defendants

7

also failed to show that Plaintiffs were not harmed by the

8

substantial delay. Accordingly, given that both exceptions

9

to Rule 37(c)(1) and the Yeti By Molly analysis have not

10

been met, ample reason exists to grant Plaintiff’s Motion.

11

C. Conclusion

12

As a result of the foregoing, the Court finds that

13

the application of Fed. R. Civ. P. 37(c)(1) to Defendants’

14

conduct is particularly apt. Since Defendants failed to

15

timely disclose Hampton and Silverman as expert witnesses

16

in rebuttal to Plaintiffs’ trademark infringement expert

17

and failed to seek permission from the Court to designate

18

new trademark infringement experts, Defendants are disal-

19

lowed from supplying evidence in the form of Hampton’s and

20

Silverman’s report and/or testimony at any hearing or at

21

trial.1/

22
1/

23
24
25
26
27
28

The Court recognizes that the dispute discussed in this Order arose on
February 25, 2013, when Hampton and Silverman’s report was provided to Plaintiffs.
Plaintiff filed their Motion on April 8, 2013. The time period between February
25, 2013 and April 8, 2013 is 41 days, which is 11 days past the date Plaintiffs
should have filed their Motion, pursuant to the Court’s Case Management Conference
Orders issued in this case. The Court also recognizes that Plaintiffs have urged
the Court to enforce the terms of its Case Management Conference Orders when
Defendants have filed untimely motions. However, due to the seriousness of
Defendants’ conduct as discussed in this Order, and Defendants’ repeated
recalcitrant conduct exhibited throughout the proceedings in this case, the Court
has chosen to relieve Plaintiffs of the requirements for filing papers for
discovery disputes for the 11-day late filing of their Motion. Such leniency may
not be extended again to Plaintiffs should they file untimely motions in the
future. Plaintiffs are hereby given adequate notice that the adage “live by the
sword, die by the sword,” advocated by Defendants, is not entirely without merit.

15

10cv0541

1

Plaintiffs’ Motion To Strike The Joint Expert Report

2

of Scott D. Hampton and Bruce G. Silverman Pursuant to

3

Rule 37(c) is GRANTED.

4
5
6

DATED:

December 17, 2013

7
8

Hon. William V. Gallo
U.S. Magistrate Judge

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