Obesity Research Institute, LLC v. Fiber Research International, LLC et al

Filing 344

ORDER denying 343 Joint Motion re: Plaintiff's Motion to Strike Supplemental Disclosures. Signed by Magistrate Judge Mitchell D. Dembin on 5/17/17. (Dembin, Mitchell)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 Case No.: 15-cv-0595-BAS-MDD OBESITY RESEARCH INSTITUTE, LLC, Plaintiff, v. FIBER RESEARCH INTERNATIONAL, LLC, ORDER DENYING PLAINTIFF’S MOTION TO STRIKE SUPPLEMENTAL DISCLOSURE [ECF NO. 343] Defendant. 17 18 On April 13, 2017, Defendant forwarded by electronic mail to Plaintiff a 19 supplement to Defendant’s initial disclosures. (See ECF No. 343-2). The 20 supplement consisted of a one-page document represented to be the Third 21 Amendment to Distribution and Claims Assignment Agreement Dated 22 February 21, 2015, between Defendant and Shimizu Chemical Corporation. 23 (Id.). The Amendment changed Section I, d. of the Agreement eliminating 24 the three-year term of the assignment and, instead, making the assignment 25 permanent. (Compare ECF No. 339-99 at 3 (using CM/ECF pagination 26 throughout) with ECF No. 343-2 at 3). In a Joint Motion filed on May 3, 1 15-cv-0595-BAS-MDD 1 2017, Plaintiff moves to strike the supplement as untimely and not justified 2 or harmless. (ECF No. 343 at 3-6). In the alternative, Plaintiff requests that 3 discovery be reopened to allow for Plaintiff to explore the background of this 4 amendment. (Id. at 6). Defendant asserts that the supplement is timely, 5 immaterial, not prejudicial and opposes additional discovery. (Id. at 7-11). 6 Plaintiff’s motion to strike as presented in the instant Joint Motion is 7 DENIED. 8 9 LEGAL STANDARD Rule 26 of the Federal Rules of Civil Procedure governs initial 10 disclosures and supplementing the disclosures. Regarding initial disclosures, 11 Rule 26 provides, in pertinent part, that 12 13 14 15 16 17 “a party must, without awaiting a discovery request, provide to the other parties: (i) the name [and contact information if known] of each individual likely to have discoverable information – along with the subjects of that information – that the disclosing party may use to support its claims or defenses . . . ; [and] (ii) … a description by category and location . . . of all documents . . . that the disclosing party has in its possession, custody or subject to its control and may use to support its claims and defenses . . . .” 18 Rule 26(a)(1)(A)(i), (ii). Regarding supplementing these initial disclosures, 19 Rule 26 provides, in pertinent part, that 20 21 22 23 24 25 26 “[a] party . . . must supplement or correct its disclosure ... in a timely manner if the party learns that in some material respect the disclosure ... is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Rule 26(e)(1)(A). The Advisory Committee’s note to the 1993 amendment to Rule 26(a)(1) states that the disclosure requirements should “be applied with common 2 15-cv-0595-BAS-MDD 1 sense in light of the principles of Rule 1, keeping in mind the salutary 2 purposes that the rule is intended to accomplish. The litigants should not 3 indulge in gamesmanship with the respect to the disclosure obligations.” 4 DISCUSSION The materiality of the change in the Assignment agreement is 5 6 questionable. The original term of three years would not expire until early 7 2018 and, in any event, included a provision that renewal would be discussed. 8 (ECF No. 339-99 at 3). The renewal, making the assignment permanent 9 rather than a term of years, seems immaterial in connection with the 10 progress of this litigation. Plaintiff’s argument that this change impacts 11 foundational facts is unconvincing. 12 Even if material, the disclosure was timely. The Amendment was 13 executed on April 13, 2017, the same day that is was served on Plaintiff. See 14 Declaration of John Alkire ¶2 (ECF No. 343-5 at 2). Plaintiff asserts, without 15 any evidentiary support, that allowing this supplemental disclosure to stand 16 will permit Defendant to rework the Assignment agreement continuously and 17 backdate the result. (ECF No. 343 at 5). This paranoiac suggestion is 18 unworthy of counsel. There is no prejudice apparent to Plaintiff. The term of the Assignment 19 20 was not interrupted at any time in this litigation and, even if there was no 21 Amendment, would continue for nearly another year. Finally, the Court is not convinced that it any further discovery is 22 23 warranted. 24 // 25 // 26 // 3 15-cv-0595-BAS-MDD 1 CONCLUSION 2 Plaintiff’s motion to strike supplemental disclosures, as presented in 3 the instant Joint Motion, is DENIED. No further discovery is authorized. 4 5 IT IS SO ORDERED: Dated: May 17, 2017 6 7 8 9 . 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4 15-cv-0595-BAS-MDD

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