MALIBU MEDIA, LLC v. JOHN DOES 1-11

Filing 272

REPORT AND RECOMMENDATIONS re 236 MOTION in Limine to Preclude Delvan Neville From Testifying at Trial or on Summary Judgment filed by MALIBU MEDIA, LLC. The Magistrate Judge recommends that the Court GRANT Plaintiff's motion. Signed by Magistrate Judge Mark J. Dinsmore on 11/19/2014.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MALIBU MEDIA, LLC,

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Plaintiff,
vs.
MICHAEL HARRISON,
Defendant.

No. 1:12-cv-01117-WTL-MJD

REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION TO PRECLUDE
DELVAN NEVILLE FROM TESTIFYING
This matter comes before the Court on Plaintiff’s Motion to Preclude Delvan Neville
from Testifying at Trial or on Summary Judgment. [Dkt. 236.] For the reasons set forth below,
the Magistrate Judge recommends that the Court GRANT Plaintiff’s Motion.
I.

Background

Malibu Media, LLC (“Plaintiff”) filed suit against Michael Harrison (“Defendant”) and
others, alleging direct and contributory copyright infringement. [Dkt. 59 at 1.] Plaintiff alleges
that Defendant downloaded a BitTorrent client on his computer and accessed torrent websites to
upload and download Plaintiff’s copyrighted files, including those related to Plaintiff’s X-Art
website. [Id. at 4-5.]
On July 16, 2014, Defendant Harrison submitted his Rule 26 “disclosure of witnesses he
may use at trial to present evidence under Federal Rules of Evidence 702, 703, or 705.” [Dkt.
236-1 at 1.] He included Jason and Edwin Bosaw “as “Rule 26(a)(2)(B) Witnesses” and attached
a written report prepared and signed by the Bosaws. [See id.] He also included Delvan Neville as
a “Rule 26(a)(2)(C) Witness[]” and provided one paragraph stating that Neville may:
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provide general testimony regarding matters relating to the operation and
functionality of the BitTorrent protocol; data collection methods and results
relating to infringements using the BitTorrent protocol; and, commentary on
network communications and other files in connection with the collection of
evidence purporting to show communications and transfers of files necessary to
accomplish the infringements of the copyrighted works using the BitTorrent
protocol.
[Id. at 1-2.] Defendant provided no report to accompany the disclosure about Neville. [See id.]
Two months later, on September 19, Plaintiff filed the current motion to exclude Neville’s
testimony. [Dkt. 236.] The Court referred to motion to the Magistrate judge to issue proposed
findings and recommendations. [Dkt. 263.]
II.

Discussion

A party must disclose to the other parties the identity of any expert witness it may use to
present evidence at trial. Fed. R. Civ. P. 26(a)(1). Rule 26 divides expert witnesses into two
types: those who are “retained or specially employed to provide expert testimony in the case,”
Fed. R. Civ. P. 26(a)(2)(B), and all other expert witnesses. Fed R. Civ. P. 26(a)(2)(C). When
disclosing the identities of the former—those who are specially retained or employed—a party
must provide “a written report—prepared and signed by the witness” that contains:
(i) a complete statement of all opinions the witness will express and the basis and
reasons for them; (ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them; (iv) the
witness’s qualifications, including a list of all publications authored in the
previous 10 years; (v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by deposition; and (vi) a
statement of the compensation to be paid for the study and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B). In contrast, when disclosing the identities of other expert
witnesses—those not specially retained or employed to give testimony—a party need
only disclose: “i) the subject matter on which the witness is expected to present evidence

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under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and
opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C).
The parties in this case dispute whether Delvan Neville is a 26(a)(2)(B) expert
witness—i.e., one specially retained to give testimony—or a 26(a)(2)(C) expert
witness—i.e., one not so specially retained. Plaintiff contends Neville is a 26(a)(2)(B)
witness because he “was not involved with the facts of the case prior to the lawsuit being
initiated,” [Dkt. 236 at 1], and would “not be testifying to any personal knowledge of the
facts derived from his involvement in the case.” [Id. at 3.] Instead, Plaintiff alleges that
Neville has been “recruited” to provide expert testimony, such that 26(a)(2)(B) applies.
[Id.; see also Dkt. 252 at 1.] Defendant responds that Neville is a 26(a)(2)(C) witness,
and asserts that 1) Neville would be testifying on the basis of his personal knowledge,
and 2) nothing in the record suggests he was “sought for any purpose other than to testify
as an expert based on his personal knowledge and observations.” [Dkt. 249-1 at 5.]
“[T]here is little case law discussing how a court distinguishes an expert who falls under
26(a)(2)(B) from an expert who falls under 26(a)(2)(C).” Beane v. Util. Trailer Mfg. Co., No.
2:10 CV 781, 2013 WL 1344763, at *2 (W.D. La. Feb. 25, 2013). The First Circuit, however,
has analyzed the issue, and has stated that “to give the phrase ‘retained or specially employed’
any real meaning, a court must acknowledge the difference between a percipient witness who
happens to be an expert and an expert who without prior knowledge of the facts giving rise to
litigation is recruited to provide expert opinion testimony.” Downey v. Bob’s Disc. Furniture
Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011). Thus, as an example, a “treating physician” is a
26(a)(2)(C) witness because he is a “percipient witness” who has firsthand knowledge of the
events giving rise to the litigation; on the other hand, a physician recruited for the purpose of

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giving testimony—rather than treatment—is a 26(a)(2)(B) witness because he has no such
firsthand involvement in the events giving rise to the ligation. Id. Put differently, the treating
physician is a 26(a)(2)(C) witness because his opinion arises “from his ground-level involvement
in the events giving rise to the ligation,” and not because of his “enlistment” as an expert. Id.
Numerous district courts have accepted this analysis of the distinction between
Rule 26(a)(2)(B) and Rule 26(a)(2)(C) expert witnesses. See, e.g., Beane, 2013 WL
1344763, at *3 (collecting cases); see also Brainstorm Interactive, Inc. v. Sch. Specialty,
Inc., No. 14-CV-50-WMC, 2014 WL 5817327, at *3 (W.D. Wis. Nov. 10, 2014) (citing
Downey, 633 F.3d at 7) (“[T]he application of Rule 26(a)(2)(B) depends on the expert’s
relationship to the issues in the lawsuit and whether his or her relationship developed
prior to the commencement of the lawsuit.”); Call v. City of Riverside, No. 3:13-CV-133,
2014 WL 2048194, at *10 (S.D. Ohio May 19, 2014) (quoting Beane, 2013 WL 1344763
at * 3) (“This Court agrees with the statement that ‘the distinction between a 26(a)(2)(B)
expert and a 26(a)(2)(C) expert is that 26(a)(2)(C) experts’ conclusions and opinions arise
from firsthand knowledge of activities they were personally involved in before the
commencement of the lawsuit.’”). This Court likewise finds the First Circuit’s analysis
persuasive and will accordingly consider whether Neville’s opinion arises “from his
ground-level involvement in the events giving rise to the ligation.” Downey, 633 F.3d at
6. As described below, the Court finds that it does not, such that Neville is properly
categorized as a 26(a)(2)(B) witness.
First, Defendant’s contention that Neville will testify based on his personal
knowledge, [Dkt. 249-1 at 4], is irrelevant. Any expert witness—“specially retained or
employed” or not—may testify based on personal knowledge. See Fed. R. Evid. 703 (“An

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expert may base an opinion on facts or data in the case that the expert has . . . personally
observed.”). A treating physician, for instance, testifies on the basis of personal
knowledge, but so does the “specially retained” physician who examines a patient only
after litigation has commenced. Thus, to say that Neville will be testifying on the basis of
personal knowledge says nothing about whether he is a 26(a)(2)(B) witness or a
26(a)(2)(C) witness.
Next, Defendant’s contention that there is no evidence that Neville is a specially
retained witness, [Dkt. 249-1 at 2], is inaccurate. Defendant notes in particular that
Neville will testify about “soaks” of “mass-doe lawsuit related hashes” that he conducted
“for the Electronic Frontier Foundation (“EFF”) as part of a seminar the EFF held for
federal judges on BitTorrent Swarms.” [Dkt. 249-1 at 3.] The seminar occurred in
October 2013, [Dkt. 252 at 3], well after the August 8, 2012 commencement of this
lawsuit. [See Dkt. 1.] It thus seems unlikely that the subject of Neville’s testimony—
soaks performed for a seminar over one year after the lawsuit commenced—were part of
the events that engendered this ligation. Consequently, Neville’s testimony is not based
on “ground-level involvement in the events giving rise to the ligation.” Downey, 633 F.3d
at 6.
Additionally, Plaintiff notes that it is unlikely that Neville could have been
involved in the infringement that gave rise to this lawsuit. [Dkt. 252 at 4.] “The
infringement occurred from Defendant’s internet in his private residence in Indiana. It
was detected by Plaintiff’s investigators when they established a direct TCP/IP
connection with a computer using Defendant’s IP address and received infringing
distributions directly from Defendant.” [Id.] Neville was not involved in these events; nor

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is there any evidence to suggest that Neville had any involvement in the events that
prompted this litigation. He therefore cannot be a Rule 26(a)(2)(C) witness and must
instead be a Rule 26(a)(2)(B) witness.
The question is then whether Defendant’s expert disclosure satisfies the
requirements of Rule 26(a)(2)(B). It plainly does not: Defendant disclosed one paragraph
describing several broad topics about which “Neville may provide general testimony.”
[Dkt. 236-1 at 1-2.] This disclosure does not provide a “complete statement of all
opinions” Neville will express, “the facts or data” that Neville considered in forming
those opinions, Neville’s qualifications, or any of the other requirements of Fed. R. Civ.
P. 26(a)(2)(B). Further, Defendant does not argue that he satisfied Rule 26(a)(2)(B).
Instead, he notes that the 2010 Amendments to Rule 26 indicate that disclosure under
Rule 26(a)(2)(C) is considerably less extensive than the reports required under Rule
26(a)(2)(B). [Dkt. 249-1 at 4.] This point, however, is irrelevant: it is Rule 26(a)(2)(B)
that applies to Neville, and Rule 26(a)(2)(B) that Defendant did not satisfy.
The only remaining issue is the appropriate consequence for Defendant’s failure
to comply with Rule 26(a)(2)(B). If a party fails to disclose information or a witness
under Rule 26(a), “the party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “Total exclusion of an expert’s
testimony is an extreme sanction,” Allstate Ins. Co. v. Electrolux Home Products, Inc.,
840 F. Supp. 2d 1072, 1081 (N.D. Ill. 2012), but this sanction “is automatic and
mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either
justified or harmless.” Salgado by Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th

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Cir. 1998); see also Finwall v. City of Chicago, 239 F.R.D. 504, 506 (N.D. Ill. 2006)
(noting that “the party to be sanctioned bears burden of showing that its violation of Rule
26(a) was either justified or harmless”). The district court has broad discretion in
deciding whether an error is harmless or justified, but should consider factors such as “(1)
the prejudice or surprise to the party against whom the evidence is offered; (2) the ability
of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the
bad faith or willfulness involved in not disclosing the evidence at an earlier date.” David
v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003).
Defendant in this case bears the burden to show that his failure to comply with Rule
26(a)(2)(B) was justified or harmless. He suggests that the failure was harmless because “Malibu
knew what the substance of Neville’s expert testimony” would be based on a “motion filed with
this Court five (5) days” before Harrison served his Rule 26(a)(2) disclosures. [Dkt. 249-1 at 3.]
Defendant refers to a different motion in limine that Plaintiff filed to exclude Delvan Neville’s
testimony in separate case currently before this court. [See id.] This argument is not persuasive:
The fact that Plaintiff knew the subjects of Neville’s testimony in a separate case says little about
its knowledge of Neville’s testimony in this case. In fact, Plaintiff notes that it learned of the EFF
seminar and Neville’s associated “soaks” for the first time only when Defendant described this
testimony in his response to Plaintiff’s current motion. [Dkt. 252 at 3.] This underscores the
paucity of information that has been disclosed about Neville’s testimony in this case, and hardly
supports an inference that the lack of disclosure was “harmless.”
Moreover, the purpose of the Rule 26(a)(2)(B) disclosure is to ensure that “opposing
counsel is not forced to depose an expert in order to avoid ambush at trial.” Salgado, 150 F.3d at
742 n.6. The report “must be sufficiently complete so as to shorten or decrease the need for

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expert depositions and thus to conserve resources.” Defendant’s current disclosures do not
comport with these goals. Plaintiff has already been surprised by the revelation about the ELF
seminar and Neville’s soaks, [Dkt. 252 at 3], and allowing Neville to testify would only
necessitate a lengthy deposition or risk additional surprise at trial.
Compounding this problem is the fact that such a deposition is not feasible. Dispositive
motions are due on November 21, 2014 and all discovery closes on December 12, 2014. [Dkt.
271 at 1.] Thus, even if the Court ordered Defendant to disclose additional information about
Neville, Plaintiff would have no time to analyze the information, depose Neville, or otherwise
use that information in preparing for any dispositive motions. Moreover, the December 12, 2014
deadline resulted from previous extensions of time to conduct discovery. [Dkts. 232 & 271.]
Allowing additional time for discovery to accommodate belated disclosures from Defendant
would further disrupt the Court’s schedule and exacerbate the delays that this now 27-month old
case has already encountered.
Finally, the Court observes that Defendant had the opportunity to cure its inadequate
disclosures earlier in this case. Plaintiff filed the current motion to exclude Neville’s testimony
nearly two months ago. [See Dkt. 236.] Defendant could have acknowledged at that time that his
expert disclosure was insufficient and could have provided the information required by Rule
26(a)(2)(B). That would have reduced the prejudice to Plaintiff and might have saved Neville’s
testimony from exclusion. As it is, however, Defendant chose to oppose the motion—even with
the deadline for discovery nearing—such that it is now too late for belated disclosure to cure
Defendant’s noncompliance with Rule 26(a)(2)(B).
Based on the above, the failure to provide a proper expert report pursuant to Rule
26(a)(2)(B) was neither justified nor harmless. The Magistrate Judge therefore recommends that,

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in accordance with Fed. R. Civ. P. 37(c)(1), Mr. Neville should be precluded from supplying
evidence at trial or on motion in this matter.
III.

Conclusion

For the reasons stated above, the Magistrate Judge recommends that the Court GRANT
Plaintiff’s Motion to Preclude Delvan Neville from Testifying at Trial or on Summary Judgment.
[Dkt. 236.] Any objections to the Magistrate Judge’s Report and Recommendation shall be filed
with the Clerk in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), and failure to
timely file objections within fourteen days after service shall constitute a waiver of subsequent
review absent a showing of good cause for such failure.
Date: 11/19/2014
Distribution:
Anthony Jay Saunders
[e-mail]
Amy L. Cueller
LEMBERG LAW, LLC
[e-mail]
David Scott Klinestiver
LEWIS & KAPPES
[e-mail]
Matthew S. Tarkington
LEWIS & KAPPES, PC
[e-mail]
Paul J. Nicoletti
NICOLETTI LAW, PLC
[e-mail]
Gabriel J. Quearry
QUEARRY LAW, LLC
[e-mail]

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