Coach, Inc. et al v. Visitors Flea Market, LLC et al

Filing 230

ORDER denying 218 Motion to Strike. Signed by Magistrate Judge Thomas B. Smith on 6/11/2014. (KHH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
COACH, INC. and COACH SERVICES,
INC.,
Plaintiffs,
v.

Case No: 6:11-cv-1905-Orl-22TBS

VISITORS FLEA MARKET, LLC, JULIO
BATISTA, LUIS FREITES,
SOMPRATHANA VONGUILATH,
MATILDE SEGURA, VISITORS PLAZA,
INC., CHARLES WOHLUST and
CHARLES WOHLUST,
Defendants.
ORDER
This case comes before the Court on Defendants’ Motion to Strike Plaintiffs’
Witness Samanta Bangaree (Doc. 218) and Plaintiffs’ response (Doc. 226). For the
reasons that follow, the motion is due to be denied.
Plaintiffs Coach, Inc. and Coach Services, Inc. (collectively “Coach”) bring this
action for trademark and trade dress infringement, counterfeiting, false designation of
origin, false advertising, and trademark dilution. (Doc. 1). The case has been ongoing
since 2011 and the schedule and deadlines have been repeatedly amended.

It is

currently set for trial on July 1, 2014. (Doc. 198).
Coach previously designated its in-house counsel, Ethan Lau, as its corporate
representative and as a witness at trial. As a lawyer for Coach, Mr. Lau’s responsibilities
included its anti-counterfeiting program. (Doc. 226 n.1). Despite Coach’s contention
that Mr. Lau was not an expert witness because his testimony would be based upon

personal knowledge and observations of the relevant facts, Mr. Lau drafted an expert
report and was deposed by Defendants. (Doc. 113). Defendants opposed Mr. Lau’s
testimony and filed a motion in limine to exclude him from testifying on the grounds that
Coach failed to timely disclose Mr. Lau; his report did not provide an adequate basis for
his opinions; and Coach would not reveal whether Mr. Lau received aid in making his
report. (Doc. 103). The Court denied the motion, finding that any prejudice could be
cured by further discovery. (Doc. 125).
According to Coach, Mr. Lau “recently” left its employ, necessitating the
designation of a new corporate representative to testify at trial. (Doc. 226 at 2, 5). Ms.
Bangaree is expected to offer her opinions regarding the counterfeit nature of items
bearing Coach’s trademarks and copyrights that were observed or purchased by Coach’s
investigator from certain of the Defendants in February, 2011 and August, 2011. (Id.).
Defendants object and ask the Court to strike Ms. Bangaree as a witness because:
(1) Coach failed to identify her until the eve of trial; (2) Coach has not offered sufficient
justification for failing to identify her sooner; and (3) Defendants have not had time to
depose Ms. Bangaree or conduct any discovery into her background. (Doc. 218).
Coach argues that it could not have identified Ms. Bangaree sooner because she
had no personal involvement in the case and did not work for Coach when Coach made
its initial Rule 26 disclosures. (Doc. 226). It also says it expected Mr. Lau to testify at
trial. Coach contends that: (1) case law permits it to substitute a corporate
representative; (2) it is substantially justified in failing to disclose Ms. Bangaree sooner;
(3) Defendants will not be prejudiced because Coach remains bound by Mr. Lau’s prior
testimony; and (4) Ms. Bangaree will be giving lay witness testimony based upon her
personal observations.

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Federal Rule of Civil Procedure 26(a)(2) requires the parties to disclose the
identity of any witness they may use at trial. Rule 30(b)(6) permits a party to name a
corporation as a deponent, and the named organization is required to designate “one or
more officers, directors, or managing agents, or designate other persons who consent to
testify on its behalf[.]” FED. R. CIV. P 30(b)(6).
The party to whom a Rule 30(b)(6) deposition notice is directed has a duty to
‘“make a conscientious good-faith endeavor to designate the persons having knowledge
of the matters sought [by the party noticing the deposition] and to prepare those persons
in order that they can answer fully, completely, unevasively, the questions posed . . . as to
the relevant subject matters.’” Catalina Rental Apartments, Inc. v. Pacific Ins. Co., Ltd.,
No. 06- 20532-Civ, 2007 WL 917272, at *2 (S.D. Fla. Mar. 23, 2007) (quoting Bank of
New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997)).
The designating party may designate more than one witness if necessary to respond to a
relevant area of inquiry. Alexander v. F.B.I., 186 F.R.D. 148,151 (D.D.C. 1999). And, if
it becomes apparent that a corporate designee is deficient, the corporation must provide
a substitute or additional designees. McPherson v. Wells Fargo Bank, N.A., 292 F.R.D.
695, 698 (S.D. Fla. 2013).
A corporate representative need not be qualified as an expert and need not have
personal knowledge of the events giving rise to the action. Id.; Tampa Bay Shipbuilding
& Repair Co. v. Cedar Shipping Co., Ltd., 320 F.3d 1213, 1222-23 (11th Cir. 2003)
(affirming where district court found that Plaintiff’s employees’ testimony was a type
traditionally and properly considered lay witness testimony, as it was not based on
specialized knowledge subject to Rule 702, but based upon particularized knowledge
garnered from years of experience in the field). A corporation is bound by its designee’s

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testimony. Peeler v. KVH Indus., Inc., No. 8:12-cv-1584-T-33MAP, 2014 WL 117101 *8
(M.D. Fla. Jan. 13, 2014) (citing QBE Ins. Corp. v. Jorda Enters., Inc., 277 F.R.D. 676,
690 (S.D. Fla. 2012). Also, “[t]he mere fact that an organization no longer employs a
person with knowledge on the specified topics does not relieve the organization of the
duty to prepare and produce an appropriate designee.” QBE Ins., 277 F.R.D. at 689.
If a party fails to provide information, provide expert witness reports, or identify a
witness as required by Rule 26(a), the Court may decide that a party cannot use that
information to supply evidence at trial, unless the failure was substantially justified or
harmless. Fed. R. Civ. P. 37(c)(1); Mobile Shelter Systems USA, Inc. v. Grate Pallet
Solutions, LLC, 845 F.Supp. 2d 1241, 1249 (M.D. Fla. 2012). In determining whether a
violation of Rule 26(a) is harmless, the Court considers: “(1) the surprise to the party
against whom the evidence would be offered; (2) the ability of that party to cure the
surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing party’s explanation for its failure to
disclose the evidence.” Id. at 1251.
There are myriad reasons why employees come and go. Sometimes these
changes are expected, other times they are not. Coach has not provided an explanation
of what happened in this case. Still, as a general proposition, a corporation should not
be prohibited from calling a designated representative as a witness simply because the
person it thought was going to testify leaves its employ. See Capitol Records, Inc. v.
MP3tunes, LLC, No. 07 Civ. 9931 (WHP), 2014 WL 503959 *11 (S.D.N.Y. Jan. 29, 2014)
(permitting substitution of corporate representative when former corporate representative
left Defendant’s employ).
The Court finds nothing disruptive about Coach calling Ms. Bangaree as its

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corporate representative at trial. Defendants understood Coach would present the
testimony of a corporate representative, and they deposed Mr. Lau, who was expected to
serve in that capacity. Coach is now bound by Mr. Lau’s deposition testimony, and
Defendants may use that testimony for any purpose. See Fed. R. Civ. P. 32(a)(3). If
Ms. Bangaree’s testimony is consistent with Mr. Lau’s, then Defendants will not be
surprised. If her testimony is inconsistent with Mr. Lau’s testimony, then Defendants can
use Mr. Lau’s deposition testimony to impeach Ms. Bangaree and Coach. For these
reasons, the Court finds that Coach’s failure to sooner disclose Ms. Bangaree was
substantially justified and is harmless. Accordingly, the motion to strike is DENIED.
Still, out of an abundance of caution, and to eliminate any possible prejudice to
Defendants, Coach will make Ms. Bangaree available for deposition before the first day of
trial. To the extent Defendants argue that Ms. Bangaree is an improper expert witness,
that issue is better resolved at trial.
DONE and ORDERED in Orlando, Florida on June 11, 2014.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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