United States of America et al v. Dish Network LLC

Filing 499

OPINION: Plaintiff States of California, Illinois, North Carolina, and Ohio's Motion in Limine Regarding Admission of Supplement Under Rule 26(e) (d/e 489 ), and Defendant Dish Network, LLC's (Dish) Cross-Motion to Strike Plaintiff's Post-Discovery Expert Disclosures, Preclude the Use of Any Related Evidence at Trial, and for Cost and Attorneys' Fees (d/e 491 ) are ALLOWED in part and DENIED in part. The schedule of this proceeding is amended as follows. Defendant is given until June 15, 2015, to depose Dr. Erez Yoeli and Richard Stauffer and until July 15, 2015, to provide the Plaintiffs with a written response, including the disclosure of any additional expert opinions. The scope of this discovery is limited to the opinions set forth in the April 2015 Analysis discussed in this Opinion. The Plaintiffs have until August 1, 2015, to depose Dish's expert who rendered opinions disclosed in its response. The pretrial order is due September 1, 2015; motions i n limine are due September 1, 2015; responses to motions in limine are due September 15, 2015. The Final Pretrial Conference set for June 1, 2015, is vacated and reset for September 28, 2015 at 1:30 p.m. The Bench Trial set for July 21, 2015, is canceled and reset for October 6, 2015, at 9:00 a.m. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 5/13/2015. (MJ, ilcd)

E-FILED

Wednesday, 13 May, 2015 04:41:12 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF AMERICA,
and the STATES of
CALIFORNIA, ILLINOIS,
NORTH CAROLINA, and OHIO,
Plaintiffs,
v.
DISH NETWORK, LLC,
Defendant,

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No. 09-3073

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This matter comes before the Court on Plaintiff States of
California, Illinois, North Carolina, and Ohio’s (Plaintiff States)
Motion in Limine Regarding Admission of Supplement Under Rule
26(e) (d/e 489) (Motion 489), and Defendant Dish Network, LLC’s
(Dish) Cross-Motion to Strike Plaintiff’s Post-Discovery Expert
Disclosures, Preclude the Use of Any Related Evidence at Trial, and
for Cost and Attorneys’ Fees (d/e 491) (Motion 491) (collectively
“Motions”). For the reasons set forth below, the Motions are
ALLOWED in part and DENIED in part.
Page 1 of 23

The Plaintiffs allege that Dish is liable for millions and millions
of telemarketing telephone calls that violated the Telemarketing and
Consumer Fraud and Abuse Prevention Act 15 U.S.C. § 6105
(Telemarketing Act); the Federal Trade Commission Act, 15 U.S.C. §
45 (FTC Act); the Telephone Consumer Protection Act, 47 U.S.C. §
227 (TCPA); the Federal Trade Commission (FTC) regulation entitled
the Telephone Sales Rule promulgated under the Telemarketing Act
and the FTC Act, 16 C.F.R. Part 310 (TSR); and the Federal
Communications Commission (FCC) regulation promulgated under
the TCPA, 47 C.F.R., 64.1200 (FCC Rule); and comparable state
laws of the Plaintiff States. Second Amended Complaint and
Demand for Jury Trial (d/e 257) (Second Amended Complaint),
Counts I through XII.
The Plaintiff States allege claims for civil penalties for illegal
calls to residents of the Plaintiff States in violation of the TCPA and
certain of each State’s consumer protection statutes. Id., at 25-28,
Prayers for Relief. The TCPA authorizes State Attorneys General to
bring actions on behalf of the residents of such states for violations
of the TCPA or the FCC Rule. Each Attorney General can seek
injunctive relief and secure actual damages or $500 per violation, or
Page 2 of 23

both. The Attorneys General could also recover triple the penalties,
or $1,500.00 per violation, if the defendant willfully or knowingly
violated the TCPA. 47 U.S.C. § 227(g).
Both sides used experts who relied on telephone area codes to
determine whether a call was made to a resident of a Plaintiff State.
The Plaintiff States’ expert Dr. Erez Yoeli, Ph.D., relied on area
codes of the telephone numbers called to determine the residency of
the recipients. E.g., Plaintiffs’ Summary Judgment Exhibits (d/e
342), PX 38, Declaration of Dr. Erez Yoeli, Appendix C, Revised
Rebuttal Report by Dr. Erez Yoeli, dated December 14, 2012, at 1012, Tables 5 through 9. Dish’s expert John Taylor similarly used
area codes to determine residency. Taylor opined that calls were
intrastate calls based on the area codes of the numbers called.
E.g., Plaintiffs’ Summary Judgment Exhibits (d/e 342), PX 26,
Revised Expert Report of John T. Taylor dated September 20, 2012,
at 4-5. Taylor also used area codes to identify the number of calls
to residents of the Plaintiff States. E.g., Plaintiffs’ Summary
Judgment Exhibits (d/e 342), PX 28, Rebuttal Report of John T.
Taylor dated November 6, 2013, at 3, 9-17, Tables 2a through 9c.

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The parties’ expert witnesses also prepared opinions related to
whether the recipients of Dish telemarketing calls were residential
telephone subscribers. The TCPA and the FCC Rule prohibited
certain telemarketing calls to “residential telephone subscribers,”
including calls to residential telephone subscribers whose telephone
numbers were registered on the National Do Not Call Registry
(Registry). See Opinion entered December 11, 2014 (d/e 445 )
(Opinion 445), at 24; 47 U.S.C. § 227(c)(1); 47 C.F.C. §
64.1200(c)(2). Dish’s expert, Dr. Robert Fenili, Ph.D., analyzed the
make-up of the telephone numbers registered on the Registry. Dr.
Fenili opined that by 2011, over half of the numbers on the Registry
were wireless telephone numbers, only 28.2% were numbers for
residential landlines, and 12.2% were business landline numbers.
Dish Summary Judgment Exhibits (d/e 348), DX 189, Expert
Report of Dr. Robert N. Fenili dated July 26, 2012, at 10 Table 1b.
In response, Dr. Yoeli analyzed the make-up of the telephone
numbers that Dish and certain of its authorized retailers called.
Dr. Yoeli took random samples of sets of call records that were
produced in discovery. The call records sampled Dish call records
for calls from 2003 to 2007, a second set of Dish call records from
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2007 to 2010, and call records from four authorized retailers.1
Plaintiffs’ Summary Judgment Exhibits (d/e 342), PX 38,
Declaration of Dr. Erez Yoeli, Appendix C, Revised Rebuttal Report
by Dr. Erez Yoeli, dated December 14, 2012, at 8-9. The samples
were sent to Richard Stauffer at PossibleNOW, Inc. (PossibleNOW).
PossibleNOW maintains current and historical databases that
contain directory information about telephone numbers and about
numbers on the Registry. Both sides in this case have used
PossibleNOW’s services. Taylor and Stauffer both work for
PossibleNOW. PossibleNOW is the subcontractor that maintains
the Registry for the FTC. Dish also employs PossibleNOW to assist
it in complying with state and federal do-not-call telemarketing laws
and regulations. See Opinion 445, at 71-73, 141-43.
Stauffer ran Dr. Yoeli’s samples through PossibleNOW’s
directory databases to identify the telephone numbers in the
samples that were wireless, business, residential, or Voice over
Internet Protocol (VoIP) numbers. Stauffer explained in his
deposition that PossibleNOW collected and maintained current and
1

The 2003-2007 call records contain Dish calling records from October 2003 through September 2005,
December 2005 through December 2006, and January 2007 through August 2007. The 2007-2010 call
records contain Dish calling records from September 1, 2007, to March 12, 2010. Opinion 445, at 118,
120.

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historical directory information. Stauffer testified that the directory
information for residential landlines included the residential
address where the phone was located. Plaintiffs’ Summary
Judgment Exhibits (d/e 380), PX 356, Richard Stauffer Deposition,
dated November 28, 2102, at 353.
The PossibleNOW databases contained identifying information
for many, but not all, of the sample telephone numbers that Dr.
Yoeli provided. The results from the 2007-2010 call records showed
that 94% of the identified calls in the sample were directed to
residential landlines and 69% of all calls were directed to residential
landlines. The results from the 2003-2007 call records showed that
85% of the identified calls in the sample were directed to residential
landlines and 67 % of all calls were directed to residential landlines.
Results were also secured for each of the samples from the
authorized retailers’ call records. Plaintiffs’ Summary Judgment
Exhibits (d/e 342), PX 38, Declaration of Dr. Erez Yoeli, Appendix
C, Revised Rebuttal Report by Dr. Erez Yoeli, dated December 14,
2012, at 9.

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All discovery closed in this matter on December 19, 2013.
Text Order entered March 21, 2013, as modified by Text Order
entered November 7, 2013.
On February 5, 2014, Taylor prepared another declaration.
Defendants Summary Judgment Exhibits (d/e 368), DX 238,
Declaration of John Taylor dated February 5, 2014. In paragraph
10 of that declaration, Taylor stated, in relevant part:
There is an additional factor, however, which renders any
attempt to identify calls placed to a consumer within any
particular state a matter of guesswork. In his work, Dr.
Erez Yoeli assumed that the area code associated with a
number dialed by DISH or one of its retailers actually
rang in the state to which the area code was assigned. In
performing my work in this case, I relied on Dr. Yoeli’s
assumption out of necessity (since I was retained to
critique his work), but it is not a valid assumption. First,
to the extent that the . . . calls were made to cell
numbers, and given that those numbers are not portable,
i.e., they can be retained by the cell customer no matter
how many times they change providers or move
locations, there is no guarantee that a cell number with a
Springfield, Illinois area code, for example, actually rings
in Springfield, much less Illinois. In addition, with the
proliferation of wireless family plans, even wider
distribution of area codes outside of their original state
exist (e.g., one member buys the shared plan in one state
with a designated area code – as one member of the
family goes away to school out of state, joins the armed
services, or relocates for some other reason, the
telephone number with the original area code goes with
the family member). In the end, while the question of
where the telephone was purchased and the contract
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administered can be determined, the question of where
the telephone actually rings cannot.
Id., ¶ 10 (internal citation omitted) (emphasis in the original).
The Plaintiffs objected to Taylor’s February 5, 2014,
Declaration. Dish responded that paragraph 10 did not contain any
expert opinions; rather, the paragraph only stated “predicate
information included to give context to Mr. Taylor’s subsequent
testimony.” Reply in Support of Motion to File Corrected DX-238
(d/e 428), at 3-4. The Court accepted Dish’s characterization of the
quoted material and found that the paragraph had no probative
value. Opinion 445, at 38-39.
Dish, however, argued at summary judgment that the area
code of a telephone number did not prove that the recipient of the
telemarketing call was a resident of the state associated with the
area code. Dish cited authority from the FCC and FTC and
persuasive judicial authority to support this argument. See
Opinion 445, at 145-46.
On December 11, 2014, this Court entered partial summary
judgment. Opinion 445, at 231-38. The Court found that Dish was
liable for making over 50,000,000 telemarketing calls that violated
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the TSR, Telemarketing Act, and the FTC Act. The Court found
liability on specific sets of calls identified by the parties’ experts
(Partial Summary Call Sets). Opinion 445, at 19, 232-33. The
Court also found that Dish engaged in a pattern or practice of
making telemarketing calls that violated the TCPA to residential
telephone subscribers in all of the Plaintiff States and made calls to
residents of the Plaintiff States of California, Illinois, and North
Carolina that violated relevant state laws. Ohio did not seek partial
summary judgment on its state law claim, so the Court made no
findings with respect to that claim. Issues of fact, however,
precluded granting summary judgment on any of the Plaintiff
States’ claims. Opinion 445, at 234-37.
One of the remaining issues of fact concerns proof of the
number of calls to residents of each State. The Court found that
the legal and regulatory authority cited by Dish was sufficient to
create an issue of fact concerning whether area codes proved the
residency of the call recipient. The Plaintiff States argued that area
codes established residency of the call recipient as a matter of law.
The Court rejected the Plaintiff States’ position. The Court held
that a State Plaintiff could only recover civil penalties for illegal calls
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made to residents of the Plaintiff State. When read favorably to
Dish for purposes of summary judgment, the authorities cited by
Dish could indicate that the area code of a telephone number did
not establish the geographical location of the telephone subscriber.
Opinion 445, at 201-02, 204-07. The Court noted, however, that
Dish presented no quantitative evidence at summary judgment on
the percentage of telephone numbers in which the area code was
associated with one state, but the subscriber of the number resided
in a different state. See Opinion 445, at 205.
On reconsideration, the Court found that issues of fact existed
as to one of the Partial Summary Call Sets, consisting of 2,386,386
calls (Reconsideration Call Set). The Court modified Opinion 445 to
hold that issues of fact existed as to the Reconsideration Call Set.
Opinion entered February 17, 2015 (d/e 478) (Opinion 478), at 1011.
This matter is set for trial on July 21, 2015. The parties are
required to file the pretrial order by May 15, 2015. Text Order
entered April 1, 2015. The parties agreed to make the first pretrial
disclosures by April 24, 2015. Memorandum of Law in Support of

Page 10 of 23

State Plaintiffs’ Motion in Limine Regarding Supplementation under
Rule 26(e), at 6, n. 4.
On April 16, 2015, Plaintiff States’ counsel sent a letter (Letter)
to Defense counsel disclosing a new analysis of call record data by
Dr. Yoeli (April 2015 Analysis) and, also, summarizing some factual
information reflected in PossibleNOW databases. Motion 489,
Exhibit 1, Letter. The Letter disclosed that in 2015, Dr. Yoeli
selected random samples from the Partial Summary Call Sets,
including the Reconsideration Call Set. He provided the samples to
Stauffer who compared the samples with the PossibleNOW
directories as he had done with the other samples in 2012. Stauffer
identified the calls that could be identified as wireless, business,
residential, or VoIP in PossibleNOW’s databases. Stauffer also
identified the residential landline telephone numbers located in
each Plaintiff State by using the address information of the
residential landline telephone numbers on the PossibleNOW
databases, rather than area codes. Dr. Yoeli used the information
from Stauffer to opine on the percentage of identified calls and the
percentage of all calls that were made to residential landlines in

Page 11 of 23

each of the Plaintiff States. Letter, at 2-3. Dr. Yoeli’s original
analysis did not contain a breakdown by State.
The Letter also discussed the factual information that Stauffer
retrieved from the PossibleNOW databases,
This inquiry confirmed that there are apparently no
residential landlines where the geographic area codes do
not match the state where the landline is located—
information that we also expect Mr. Stauffer to convey at
trial when he testifies about the residential directory
assistance database. Of the 29,082 landline database
matches returned, only 40 addresses did not match the
state that the area code suggests—about one-tenth of
one percent (.01%) of the total. . . The underlying data
for those 40 landlines reveals not that the landline is
located in some state other than that indicated by the
area code, but that the database does not contain
“state” data associated with that landline.
Letter, at 3.
The Letter stated that the Plaintiff States sent the Letter as a
supplemental disclosure under Rule 26(e). The Letter stated that
the April 2015 Analysis was a supplement to Dr. Yoeli’s previous
opinions. Letter, at 1; see Fed. R. Civ. P. 26(a)(2)(E) and 26(e).
Dish responded on April 17, 2015. Dish stated that the April
2015 Analysis was not a supplement, but an undisclosed,
inadmissible expert opinion. Dish asked the Plaintiff States to
withdraw the Letter and not present any of the information set forth
Page 12 of 23

in the Letter at trial. Defendant Dish Network L.L.C.’s Cross-Motion
to Strike State Plaintiffs’ Post-Discovery Expert Disclosures,
Preclude the Use of any Related Evidence at Trial, and for Costs and
Attorneys’ Fees (d/e 491), attached Declaration of Elyse Echtman,
Exhibit K, Letter dated April 17, 2015.
The parties conferred, but did not resolve this dispute. The
Motions followed. The Plaintiff States ask the Court to rule in
limine that the information in the Letter is admissible at trial. Dish
asks the Court to bar the information in the Letter and sanction the
Plaintiff States by awarding Dish costs and fees.
ANALYSIS
The admissibility of Dr. Yoeli’s April 2015 Analysis at trial
turns on whether the April 2015 Analysis is a supplement to Dr.
Yoeli’s prior expert opinions or whether the April 2015 Analysis is a
new expert opinion. Supplements to existing opinions must be
disclosed within the time set for pretrial disclosures. Fed. R. Civ. P.
26(e)(2) and 26(a)(3)(B). Pretrial disclosures in this case began on
April 24, 2015. New expert opinions, however, must be disclosed
within the time set for expert discovery in the Rule 16(b) scheduling
order. Fed. R. Civ. P. 16(b) and 26(a)(2)(D). All discovery closed in
Page 13 of 23

this case in December 2013. The disclosure in the Letter was
untimely by more than a year if the April 15 Analysis was a new
opinion. Such untimely information may not be used at trial unless
the late disclosure is substantially justified or harmless. Fed. R.
Civ. P. 37(c)(1).
A party must make a supplemental disclosure if the original
disclosure “in some material respect . . . 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.” Fed. R. Civ. P. 26(e)(1)(A); see Fed. R. Civ. P.
26(a)(2)(E). A supplemental expert disclosure typically updates,
corrects, refines, or otherwise modifies an existing expert opinion
“based on information acquired subsequent to the original
disclosure or a realization that the original disclosure was
incomplete or incorrect.” Mintel Intern. Group, Ltd. v. Neergheen,
636 F. Supp.2d 677, 685-86 (N.D. Ill. 2009) (quoting Baldwin
Graphic Systems, Inc. v. Siebert, Inc., 2005 WL 1300763, at *2
(N.D. Ill. February 22, 2005) (internal quotation marks omitted)). A
new opinion based on a new method of analysis or new underlying
theory of the case is not a supplement. Council 31 v. Ward, 1995
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WL 549022 (N.D. Ill. September 12, 1995). See Mintel Intern.
Group, Ltd., 636 F.Supp.2d at 685 (supplemental opinions which
send the case on a “wholly different track” may be excluded as
improper).
Dr. Yoeli used a new methodology in the April 2015 Analysis to
determine the location of residential landline telephones. Dr. Yoeli
used area codes in his original opinions to determine location, but
the April 2015 Analysis uses actual addresses in the PossibleNOW
directory database. The use of addresses is clearly a new
methodology and a new opinion. This is not a correction of
erroneous or incomplete information, but a change in method of
analysis.
Dr. Yoeli changed the method of analysis because this Court
rejected the Plaintiff States’ prior legal position. The Plaintiff States
took the position that area codes provided complete information to
determine state location of a telephone number as a matter of law.
See Opinion 445, at 206. Dr. Yoeli’s use of area codes was
consistent with this legal position. This Court rejected that
argument. Id. Dr. Yoeli now presents an opinion based on a
different methodology to analyze the location of residential
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telephone subscribers. Given the context of the Plaintiff States’
legal position, this portion of the April 2015 Analysis is not a
supplement, but a new opinion. The Plaintiff States’ disclosure of
this new opinion is untimely. The untimely opinion is only
admissible if the late disclosure is harmless or substantially
justified. Fed. R. Civ. P. 37(c).2
Yoeli’s change in methodology is not harmless. The number of
calls to residents of the Plaintiff States is a significant issue. The
Plaintiff States may seek civil penalties of up to $1,500.00 per call
on behalf of residents for willful violations of TCPA. 47 U.S.C. §
227(g). Dish has prepared arguments to challenge Yoeli’s use of
area codes to determine location of telephone subscribers, and so
the number of illegal calls to residents of each Plaintiff State.
Discovery is closed, and the Court has ruled on summary
judgment. Now, at this late date, Dr. Yoeli presents a new method
of determining the location of a residential telephone subscriber.

2

The Plaintiff United States argues that Dish is barred by the doctrine of judicial estoppel. The United
States argues that Dish should be judicially estopped because Dish argued that similar post-discovery
opinions in Taylor’s February 2014 declaration were admissible as supplemental opinions. Judicial
estoppel applies if the Court accepted the prior position that Dish asserted. See Matter of Cassidy, 892
F.2d 637, 641 (7th Cir. 1990). This Court did not accept Dish’s prior argument about Taylor’s February
2014 opinion. Rather, the Court did not rule on the issue because the opinion was immaterial; Dish had
already conceded the factual issue that the opinion sought to address. See Opinion 445, at 39. Judicial
estoppel does not apply.

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The change could prejudice Dish. See Council 31 v. Ward, 1995 WL
549022, at *1.
The Plaintiff States, however, may be substantially justified to
use the expert opinions in the April 2015 Analysis in rebuttal.
Dish’s expert Taylor changed his position on area codes after
discovery closed. He relied on area codes to determine location of
residential subscribers in his reports, but after discovery closed he
stated under penalty of perjury that area codes were not reliable.
Taylor claims that he had to use area codes because he was hired to
critique Dr. Yoeli’s opinions, and Dr. Yoeli used area codes. This
statement makes little sense. Taylor had no trouble critiquing the
use of area codes in February 2014; he could have made the same
critique in a timely fashion in his expert opinion reports.
Furthermore, Taylor’s February 2014 statement under oath was not
presented as an expert opinion, but as “predicate information
included to give context to Mr. Taylor’s subsequent testimony.”
Reply in Support of Motion to File Corrected DX-238 (d/e 428), at
3-4. At this point, the Plaintiff States (and the Court) do not know
what Taylor will opine at trial about determining the residency of
telephone subscribers. Given this ambiguity in Dish’s expert
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Taylor’s statements, it is only prudent for the Plaintiff States to
prepare some sort of response.3
The Court has broad discretion to determine what evidence
may be presented in rebuttal at trial. Finley v. Marathon Oil Co.,
75 F.3d 1225, 1231 (7th Cir. 1996). Given the uncertainty of
Taylor’s potential testimony on this issue, and the uncertainty of
what else Dish may present at trial, the Court will not bar the use
of expert opinions in the April 2015 Analysis at this time; the
Plaintiff States may seek to admit the opinions for rebuttal
purposes. Once the Court has heard Dish’s evidence, the Court in
its discretion will decide whether the opinions may be admissible in
rebuttal.
The factual data underlying the April 2015 Analysis is not
barred from use at trial for any purpose. The underlying factual
data showed that in 29,042 out of 29,082 landline numbers
checked, the state in the address of a phone number was the same
as the state associated with the telephone number’s area code. The
existence of the underlying factual data was disclosed during

3

Rebuttals to expert opinion should be disclosed within thirty days of the party’s disclosure. Fed. R. Civ.
P. 26(a)(2)(D)(ii). Since Dish has not disclosed what Taylor will opine at trial, any thirty-day time period
has not begun. See also Finley v. Marathon Oil Co., 75 F.3d 1225, 1231 (7th Cir. 1996).

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discovery. The call records and the PossibleNOW databases were
disclosed, including the fact that the PossibleNOW residential
landline directory database included addresses. Because the
existence of the underlying factual data was disclosed in discovery,
no supplemental disclosure was required. Rule 26 only obligated
the Plaintiff States to supplement their Rule 26 factual disclosures
if “the additional or corrective information has not otherwise been
made known to the other parties during the discovery process.”
Fed. R. Civ. P. 26(e); see Stolarczyk ex rel. Estate of Stolarczyk v.
Senator Intern. Freight Forwarding, LLC, 376 F.Supp.2d 834, 843
(N.D. Ill. 2005) (failure to disclose witness in Rule 26 disclosures
was harmless if witness was disclosed in discovery); Laboratory
Skin Care, Inc. v. Coleman v. Keebler Co., 997 F. Supp. 1102, 1107
(N.D. Ind. 1998) (“‘no obligation to provide supplemental or
corrective information that has been otherwise made known to the
parties in writing or during the discovery process’”) (quoting
Advisory Committee Notes to 1983 Amendments to Rule 26(e)(1)).
Dish could have acquired the data in discovery and conducted a

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similar factual comparison. The underlying factual information is
not barred by Rule 26 or Rule 37.4
Dish argues that the Plaintiffs had to produce the specific
comparison of this factual information in discovery, not just the
existence of the data, in order to avoid the obligation to supplement.
The Court disagrees. Rule 26 only requires disclosure of a
description and the location of the information that may be used at
trial. See Fed. R. Civ. P. 26(a)(1)(A)(ii). The disclosure in discovery
that PossibleNOW had directory addresses for residential telephone
numbers was a sufficient disclosure of additional information to
meet the supplemental disclosure obligations under Rule 26(e). The
Plaintiff States are not barred from using the underlying factual
data.
Dish asks for additional time to respond to the April 2015
Analysis. Dish also asks for the Court to reopen all expert
discovery. The Plaintiff United States and the Plaintiff States object
to any delay in the trial date.
The Court has carefully considered the matter and finds that
in the interests of justice, Dish must be given some additional time
4

The Court is not deciding any evidentiary issues related to the admissibility of the underlying factual data
at trial. The Court is only deciding that the factual evidence is not barred under the discovery rules.

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to respond to the expert opinions in the April 2015 Analysis, but
the Court will not reopen expert discovery for any other purpose.
These opinions may only be used, if at all, in rebuttal. This narrow
use does not warrant reopening expert discovery for any other
purpose.
The Court, therefore, gives Dish until June 15, 2015, to
depose Dr. Yoeli and Stauffer and until July 15, 2015, to provide
the Plaintiffs with a written response, including the disclosure of
any additional expert opinions. The scope of this discovery is
limited to the opinions set forth in the April 2015 Analysis. The
Plaintiffs will have until August 1, 2015, to depose Dish’s expert
who rendered opinions disclosed in its response.
This extension will force a continuance of the trial and other
deadlines. The Court grants this extension over the Plaintiffs’
objection to this change. The interests of justice require a small
extension. The pretrial order is due September 1, 2015; motions in
limine are due September 1, 2015; responses to motions in limine
are due September 15, 2015. The Final Pretrial Conference set for
June 1, 2015, is vacated and reset for September 28, 2015 at 1:30

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p.m. The Bench Trial set for July 21, 2015, is canceled and reset
for October 6, 2015, at 9:00 a.m.
Last, Dish asks for costs and expenses. The Court has
discretion to award costs and fees for motions brought under Rule
37(c). Fed. R. Civ. P. 37(c)(1)(A). The Court, in its discretion,
determines that no fees or expenses are warranted. The Court has
not barred any evidence. The Court has determined that,
depending on Dish’s evidence at trial, the April 2015 Analysis may
be used in rebuttal. Therefore, Dish should incur any costs and
expenses to prepare a response. The Court, in its discretion,
determines that Dish is not entitled to an award of expenses or fees.
CONCLUSION
THEREFORE Plaintiff States of California, Illinois, North
Carolina, and Ohio’s Motion in Limine Regarding Admission of
Supplement Under Rule 26(e) (d/e 489), and Defendant Dish
Network, LLC’s (Dish) Cross-Motion to Strike Plaintiff’s PostDiscovery Expert Disclosures, Preclude the Use of Any Related
Evidence at Trial, and for Cost and Attorneys’ Fees (d/e 491)
are ALLOWED in part and DENIED in part. The schedule of this
proceeding is amended as follows. Defendant is given until
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June 15, 2015, to depose Dr. Erez Yoeli and Richard Stauffer
and until July 15, 2015, to provide the Plaintiffs with a written
response, including the disclosure of any additional expert
opinions. The scope of this discovery is limited to the opinions
set forth in the April 2015 Analysis discussed in this Opinion.
The Plaintiffs have until August 1, 2015, to depose Dish’s
expert who rendered opinions disclosed in its response. The
pretrial order is due September 1, 2015; motions in limine are
due September 1, 2015; responses to motions in limine are due
September 15, 2015. The Final Pretrial Conference set for
June 1, 2015, is vacated and reset for September 28, 2015 at
1:30 p.m. The Bench Trial set for July 21, 2015, is canceled
and reset for October 6, 2015, at 9:00 a.m.
Enter: May 13, 2015

/s Sue E. Myerscough
UNITED STATES DISTRICT JUDGE

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