J.S.T. Corporation v. Robert Bosch LLC et al
ORDER: (1) Denying Without Prejudice Defendant's Motion to Compel Damages-Related Discovery 569 574 ; and (2) Requiring Plaintiff to Update Its Initial Disclosures. Signed by District Judge Victoria A. Roberts. (LVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-13842
Honorable Victoria A. Roberts
ROBERT BOSCH LLC, et al.,
ORDER: (1) DENYING WITHOUT PREJUDICE
DEFENDANT’S MOTION TO COMPEL DAMAGESRELATED DISCOVERY [ECF No. 569]; and (2) REQUIRING
PLAINTIFF TO UPDATE ITS INITIAL DISCLOSURES
Before the Court is Bosch’s motion to compel damages-related
discovery regarding JST’s HIT connector. [ECF No. 569].
Bosch says: “Though Rule 26 plainly requires ‘a computation of each
category of damages claimed,’ Fed. R. Civ. P. 26(a)(1)(A)(iii), JST’s Rule
26 disclosures and interrogatory responses are completely silent in that
regard . . . and leave Bosch to guess how JST’s damages will be
calculated.” [ECF No. 573, PageID.40364]. Particularly, Bosch points out
that “JST has not provided any specific basis or calculation for its
reasonable royalty theory such that Bosch might begin to understand, let
alone rebut, the alleged damages. Instead, JST maintains that only its
experts can calculate the relevant damages.” [Id.].
Bosch says it is entitled to discovery regarding the HIT connector
because it is a predecessor product of JST’s HIT2 connector – which is the
device at issue in this litigation – and because the HIT is within the scope of
JST’s asserted reasonable royalty damages claim.
The Court agrees that JST failed to comply with its Rule 26(a) duties.
Among other things, Rule 26(a) requires a party to provide “a
computation of each category of damages claimed” and “make available for
inspection and copying . . . the documents or other evidentiary material . . .
on which each computation is based, including materials bearing on the
nature and extent of injuries suffered.” Fed. R. Civ. P. 26(a)(1)(A)(iii); see
also Design Strategy, Inc. v. Davis, 469 F.3d 284, 295 (2d Cir. 2006) (“Rule
26(a) requires more than providing—without any explanation—
undifferentiated financial statements; it requires a ‘computation,’ supported
by documents.”); Silicon Knights, Inc. v. Epic Games, Inc., No. 5:07-CV275-D, 2012 WL 1596722, at *4 (E.D.N.C. May 7, 2012) (“Disclosing
damages-related documents alone, without disclosing a computation based
on such documents, does not satisfy a party's Rule 26(a)(1)(A)(iii)
In its initial disclosures, JST says it cannot compute its damages at
this time because documents necessary to make such calculations are, at
least in part, in the custody of Bosch or third parties, and because its
damages will be calculated by a financial/accounting expert(s). This fails to
comply with Rule 26(a).
While JST’s “precise method of calculation need not be [preliminarily]
disclosed to the extent the method is properly the subject of expert
testimony,” JST “‘is not excused from making its disclosures because it has
not fully investigated the case,’” and “[f]uture expert analysis does not
relieve [JST] of its obligation to provide information reasonably available to
it as to gross revenues, expenses and any other component of its lost
profits computation.” Frontline Med. Assocs., Inc. v. Coventry Health Care,
263 F.R.D. 567, 569-70 (C.D. Cal. 2009) (quoting Fed. R. Civ. P.
26(a)(1)(E)). JST had a duty to “make its initial disclosures based on the
information then reasonably available to it.” Fed. R. Civ. P. 26(a)(1)(E);
see also City & Cty. of San Francisco v. Tutor-Saliba Corp., 218 F.R.D.
219, 222 (N.D. Cal. 2003) (initial damages disclosure “is merely a
preliminary assessment and is subject to revision”).
JST must update its initial disclosures and discovery responses to
comply with the above requirements by December 21, 2021. JST must
provide a computation of each category of damages claimed, for each
claim alleged; provide a more specific explanation of how it will calculate its
damages; and produce all documents/other evidentiary material on which
each computation is based.
Although it may not be able to give a precise computation of
damages, JST must provide estimated calculations for each of its theories
of damages and each of its claims to the best of its ability. Frontline Med.,
263 F.R.D. at 569; Silicon Knights, 2012 WL 1596722, at *4 (“[A] Rule
26(a)(1)(A)(iii) disclosure must include ‘more than a lump sum statement of
the damages allegedly sustained,’ . . . [as] the rule ‘contemplates some
analysis,’ including an analysis of the damages sought as to each claim.”
(quoting Tutor-Saliba, 218 F.R.D. at 221-22)). JST also must identify the
time period for which it claims damages. Frontline Med., 263 F.R.D. at 569.
Finally, as discovery proceeds, JST must supplement and/or correct
its disclosures and discovery responses to reflect information obtained
through discovery. See Fed. R. Civ. P. 26(e).
If JST fails to comply with its duties under Rule 26(a) or (e), it will not
be “allowed to use that information . . . 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). “In addition to or instead of this
sanction, the court . . . : (A) may order payment of the reasonable
expenses, including attorney's fees, caused by the failure; (B) may inform
the jury of the party's failure; and (C) may impose other appropriate
sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).” Id.
The Court DENIES Bosch’s motion to compel [ECF No. 569]
Bosch’s request for an order compelling JST to produce discovery
regarding the HIT connector is premature.
The deadline for JST to serve its opening damages expert report(s) is
January 31, 2022, and the deadline for completing expert depositions is
April 15, 2022. If the discovery it now seeks is relevant to JST’s damages
claims and JST has not produced it, Bosch may request it from JST before
conducting expert depositions and/or get it when it conducts expert
depositions. If Bosch believes this discovery is relevant and JST still
refuses to produce it after serving its damages expert report(s), Bosch may
re-file this motion.
IT IS ORDERED.
s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: November 19, 2021
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