NOLA Fine Art, Inc. et al v. Ducks Unlimited, Inc.
Filing
69
ORDER AND REASONS denying defendant's motion 31 to strike Harold A. Asher's expert report. Signed by Chief Judge Sarah S. Vance on 2/3/15. (jjs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NOLA FINE ART, INC. AND MICHAEL HUNT
CIVIL ACTION
VERSUS
NO: 13-4904
DUCKS UNLIMITED, INC.
SECTION: R(4)
ORDER AND REASONS
Before the Court is defendant Ducks Unlimited, Inc.'s motion
to strike plaintiffs' expert, Harold A. Asher.
Defendant argues
that the Court should strike Mr. Asher's report because he relied
on documents that plaintiffs had not previously disclosed to
defendant, in violation of Federal Rules of Civil Procedure 26(e)
and 37(c)(1).
The Court denies the motion because it finds that
plaintiffs have complied with Rule 26(e).
I.
Background
Plaintiffs filed this suit alleging various contract and
quasi-contract claims against defendant.
Plaintiffs contend that
defendant refused to fulfill its obligations under an alleged
agreement regarding the creation and sale of plaintiffs' artwork.1
On June 19, 2014, the Court entered a scheduling order which
established
November
1
deadlines
14th
for
for
the
plaintiffs'
R. Doc. 1 at 2.
production
reports
of
and
expert
December
reports-15th
for
defendant's reports.2
The Court later granted the parties' joint
motion to extend the deadline for expert reports by one week.3
On
November 21, 2014, plaintiffs produced the expert report of Harold
A. Asher, in which Mr. Asher calculates plaintiffs' damages as a
consequence of defendant's alleged breach.
The report begins by
listing the various documents Mr. Asher relied on in reaching his
conclusion.4
Three days later, on November 24, 2014, defense counsel sent
plaintiffs' counsel an email requesting that plaintiffs supplement
their Rule 26(e) disclosures to include the documents Mr. Asher
referenced.5
A few hours later, plaintiffs' counsel responded
agreeing to supplement any materials that were not previously
produced.6
Plaintiffs made good on their promise to supplement the
following day.7
Defendant then filed this motion seeking to strike Mr. Asher's
report under Federal Rule of Civil Procedure 37(c)(1) for failure
2
R. Doc. 25.
3
R. Doc. 32.
4
R. Doc. 31-4 at 1-2.
5
R. Doc. 33-1.
6
R. Doc. 31-5.
7
R. Doc. 33-1.
2
to timely supplement plaintiffs' initial disclosures.8
II.
Legal Standard
Federal Rule of Civil Procedure 26(a) describes a party's
initial disclosure requirements and states that a party must
provide to the other parties, without awaiting a discovery request,
a copy "of all documents . . . that the disclosing party has in its
possession, custody, or control and may use to support its claims
or defenses."
Fed. R. Civ. P. 26(a)(1)(A)(ii).
The initial
disclosure must be supplemented later in the proceedings if the
party learns that the disclosure made "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).
The duty to
supplement extends to materials disclosed in connection with expert
reports.
Fed. R. Civ. P. 26(e)(2).
Rule 37 states that if a party does not provide information or
disclose a witness as required by Rule 26(a) and (e), the party may
not use that information or witness to supply evidence at trial,
"unless the failure was substantially justified or harmless." Fed.
R. Civ. P. 37(c)(1). The Fifth Circuit has identified four factors
that a court should consider in determining whether a violation of
8
Defendant filed the instant motion approximately one-hour
before plaintiffs sent the requested information. Compare R.
Doc. 31 with R. Doc. 33-1.
3
Rule 26 is harmless or substantially justified: 1) the importance
of the evidence; 2) the prejudice to the opposing party if the
evidence is included; 3) the possibility of curing such prejudice
by granting a continuance; and 4) the party's explanation for its
failure to disclose.
Tex. A & M Research Found. v. Magna Transp.,
Inc., 338 F.3d 394, 402 (5th Cir. 2003).
III. Discussion
Defendant complains that plaintiffs failed to supplement
their initial disclosures before they provided defendant with Mr.
Asher's report.9
Plaintiffs respond that many of the documents
referenced in Mr. Asher's report were produced to defendant in
plaintiffs' September 28, 2013 and February 14, 2014 disclosures,
and that any new documents either recently came into plaintiffs'
possession
or
were
the
defendant's
own
financial
records.10
Defendant does not contest plaintiffs' characterization.
The Court finds defendant's motion to be without merit. As an
initial matter, to the extent that plaintiffs' November 25, 2014
production included defendant's own financial records, plaintiffs
were under no obligation to supplement their initial disclosures
with documents already in defendant's possession.
9
Fed. R. Civ. P.
R. Doc. 31-1 at 2 ("Apparently the plaintiff provided
Harold Asher a variety of documents that it has not previously
produced to Ducks Unlimited.").
10
R. Doc. 33 at 5.
4
26(e) advisory committee's note ("There is, however, no obligation
to provide supplemental or corrective information that has been
otherwise made known to the parties . . . during the discovery
process.").
See also Great Am. Assur. Co. v. Sanchuk, LLC, Civ. A.
No. 8:10-cv-2568, 2012 WL 3860429, at *1 (M.D. Fla. Sept. 5, 2012)
(finding no Rule 26(e) violation where complaining party was
already aware of witness' identity).
With regard to the documents
not already in defendant's possession, Rule 26 requires parties to
supplement initial disclosures in a "timely manner."
P. 26(e).
these
Fed. R. Civ.
Plaintiffs represent that they only recently acquired
documents,
and
the
plaintiffs' representation.
Court
finds
no
reason
to
discount
Additionally, plaintiffs provided
defendant with the supplemental disclosure within 24-hours of
defendant's request.
The Court finds plaintiffs' supplementation
"timely."
Moreover, even if the plaintiffs failed to timely supplement
their initial disclosures, the Court finds that any violation of
Rule 26 was harmless.
harmless
or
To determine whether a Rule 26 violation is
substantially
justified,
the
Court
considers
the
importance of the evidence, the prejudice to the opposing party if
the evidence is included, the possibility of curing any prejudice
by granting a continuance, and the party's explanation for its
failure to timely disclose.
Magna Transp., 338 F.3d at 402. Here,
defendant does not identify with any degree of specificity which
5
documents it contends plaintiffs failed to timely disclose.
Thus,
the Court is unable to assess the importance of such evidence. The
Court notes, however, that plaintiffs provided defendant with the
requested documents on November 25, 2014, approximately one month
before defendant's expert reports were due.11
It is thus not clear
that plaintiffs' failure to timely produce these documents denied
defendant
the
opportunity
to
acquire
a
countervailing
expert
opinion. Moreover, in this one-month period, defendant never moved
to continue its expert deadline and instead filed this motion to
strike.
Finally, plaintiffs represent, and defendant does not
contest, that any documents plaintiffs produced for the first time
on November 25, 2014 are either documents that had only recently
come
into
plaintiffs'
financial records.
possession
or
are
the
defendant's
own
Thus, even if plaintiffs failed to timely
supplement their initial disclosures under Rule 26(e), the Court
finds the violation harmless and substantially justified.
For the foregoing reasons, defendant's motion to strike Harold
A. Asher's expert report is DENIED.
New Orleans, Louisiana, this ___ day of February, 2015.
3rd
_____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
11
The Court granted the parties' joint motion to extend
expert deadlines for one week. R. Doc. 32. Defendant's expert
reports were thus due on December 22, 2014.
6
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