Fyfe Co., LLC et al v. Structural Group, Inc. et al

Filing 158

MEMORANDUM AND ORDER DENYING #149 Motion to Strike the Untimely Expert Reports of Patrick F. Kennedy, Ph.D., and Michael Bandemer. Signed by Magistrate Judge J. Mark Coulson on 3/20/2015. (hmls, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
Chambers of
J. Mark Coulson
U.S. Magistrate Judge

101 West Lombard Street
Baltimore, Maryland 21201
[e-mail]
Phone: [phone]
Fax: [phone]

March 20, 2015
LETTER OPINION TO ALL COUNSEL OF RECORD
Re: Fyfe Co., LLC et al v. Structural Group, Inc. et al
Civil No. 13-CV-176-CCB
Dear Counsel:
The Court has before it Defendant Structural Group's Motion to Strike The
Untimely Expert Reports of Patrick F. Kennedy, PhD and Michael Bandemer, Plaintiffs’
Opposition and Defendant’s Reply. (ECF Nos. 149, 154 & 155). The Court finds that no
hearing is necessary, pursuant to Local Rule 105.6 (D. Md. 2014).
This case involves allegations that certain of Plaintiffs’ former employees went to
work for Defendant in violation of various restrictive covenants, utilizing trade secrets
and other confidential information from Plaintiffs resulting in damages to Plaintiffs
including lost profits. The Parties have designated experts to testify about two general
topics in this action: computer forensics and damages. The modified scheduling order
set the deadline for Rule 26(e)(2) Supplemental Disclosures and Responses, which
would include supplementation of expert reports, as February 5, 2015. (ECF No. 137).
Plaintiffs filed supplements to the reports of Dr. Kennedy and Mr. Bandemer on March
13, 2015—10 and 11 days prior to their depositions respectively.
Defendant argues that the February 5, 2015 deadline was intended as a
simultaneous supplementation to address the evidence of record up until that date and
that Plaintiff’s late filing impermissibly addresses additional records and rebuts the
timely supplemental reports filed by Defendant. (ECF No. 149-1 at 3). The harm
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alleged by Defendant is the surprise of receiving the report late and within 10-11 days
of the expert depositions. (Id. at 5-6). In this regard, Defendant suggests that the only
possible cure is the rescheduling of the four expert depositions that have been set to
occur back-to-back beginning on March 23, 2014. (Id. at 6). In the alternative, should
this Court not exclude the reports, Defendant requests that it have until April 10, 2015
to submit supplemental and rebuttal reports and that the expert depositions be
postponed to no sooner than April 13, 2015. (ECF No. 155 at 2). Defendant also seeks
modifications to the discovery deadline, request for admission deadline and dispositive
motions deadline (which has already been requested in a separate pleading pending
before Judge Blake (See ECF No. 152)). (Id.).
Plaintiffs argue that the late submission of the supplemental reports are justified,
harmless, and in fact benefit Defendants by advising them of precisely how their
experts will testify at deposition. (ECF No. 154 at 2). Specifically, with respect to Dr.
Kennedy’s supplemental report, Plaintiffs state that critical financial documents were
not produced until February 4, 2015 at 6:59 p.m.—on the evening before the
supplemental reports were due. (Id. at 3). Plaintiffs further argue that another piece of
critical information relating to FRP jobs was not produced until February 12, 2015. (Id.
at 4). With respect to Mr. Bandemer’s supplemental report, Plaintiffs explain that they
did not receive the contents of a relevant external hard drive until February 3, 2015. (Id.
at 5). Plaintiffs also explain that the supplemental reports “do not contain opinions
which fundamentally alter the prior reports; they simply discuss new evidence, update
the prior reports (including revising calculations in Kennedy’s report) and rebut the
opinions of the defense experts.” (Id. at 9). Finally, Plaintiffs emphasize that the filing
of the supplemental reports 10-11 days prior to the expert depositions does not
prejudice Defendants. (Id.).
After consideration of the Parties’ respective positions, the Court finds that
Plaintiffs have demonstrated substantial justification and harmlessness. As an initial
matter, both initial and rebuttal reports were timely filed as to both experts. In such
circumstances where the identity and substance of an expert's opinions are revealed in a
timely fashion, the sanction of exclusion seems extreme and unjustified under all but
the most egregious and prejudicial circumstances. A main purpose in providing
supplemental reports is to "update" the expert's opinions in light of additional evidence
that may have been disclosed since the filing of initial and rebuttal reports. As Plaintiffs
point out, the supplemental reports at issue address important information that was not
revealed until the supplemental report deadline was upon them. Ideally, Plaintiffs
would have either sought by agreement or by motion an extension of the deadline,

however the failure to do so under the circumstances creates little if any true prejudice.
The opinions can be fully explored at the upcoming depositions. With 10 and 11
days respectively prior to the depositions, Defendants have more than enough time to
prepare for the depositions, the scheduling of which, as Defendants themselves point
out, required "much negotiation." (ECF No. 149-1 at 6). Additionally, the information
essentially refines opinions that Defendants are already aware of so there can be no true
surprise. Given that Defendants have apparently had the new information for some
time, presumably they have already provided it to their own experts for review and
evaluation and, if appropriate, incorporation into their own opinions. As for the
opportunity to "rebut" the earlier-filed supplemental disclosures of Defendants,
Plaintiffs experts presumably would have been doing that at deposition in any event. If
anything, knowing that rebuttal in advance is of benefit to Defendants.
Notwithstanding the above, the Plaintiffs should fully expect Defendants' experts
to rebut Plaintiffs' recent supplementation at their upcoming depositions and will not
be heard to complain of unfair surprise or prejudice to the extent such rebuttal goes
beyond Defendants' prior written disclosures.
In light of all these factors the Court does not find that any modification to the
scheduling order is necessary, nor should the expert depositions be postponed.
Accordingly, Defendant Structural Group's Motion to Strike The Untimely Expert
Reports of Patrick F. Kennedy, PhD and Michael Bandemer is DENIED.
Despite the informal nature of this letter, it is an Order of the Court and the Clerk
is directed to docket it as such.
Sincerely yours,
/s/
J. Mark Coulson
United States Magistrate Judge