BYRD et al v. AARON'S, INC. et al

Filing 496

MEMORANDUM OPINION that #469 MOTION to Strike Plaintiffs' New Expert Report filed by AARON'S, INC., will be granted. An appropriate Order to follow. Signed by Magistrate Judge Susan Paradise Baxter on 3/22/17. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CRYSTAL BYRD, et al,
Plaintiffs,

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)
)
)
)
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)

v.
AARON'S, INC., et al.,
Defendants.

Civil Action No. 1:11-cv-00101
District Judge Bissoon
Magistrate Judge Baxter

MEMORANDUM OPINION 1
Presently pending before this Court is a Motion to Strike Plaintiffs' New Expert Report filed
by Defendant Aaron's Inc. and joined by Defendant Aspenway. ECF No. 469. For the reasons
set forth below, the motion to strike will be granted.

A. Relevant Procedural History
On May 3, 20 I I, Plaintiffs Crystal and Brian Byrd, initiated this action. Plaintiffs allege
that Defendants utilized spying software ("PCRA software") to illegally intercept, access,
monitor, and/or transmit electronic communications from their consumers' computers in
violation of I 8 U .S.C § 25 I I, the Electronic Communications Privacy Act ("ECPA").
Since the filing of the Original Complaint, this case has undergone a lengthy procedural
process, only a portion of which is necessarily related herein. Currently, the operative complaint
is Plaintiffs' Corrected Third Amended Complaint. ECF No. 296. Defendants remaining in this
action are Aaron's Inc. and Aspen Way Enterprises, Inc.

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A motion to strike is a non-dispositive motion which may be resolved by the undersigned
pursuant to 28 U.S.C. § 636(b)(l)(A). See Novartis Pharmaceuticals Corp. v. Actavis, Inc., 20I3
WL 7045056, at In. I (D.Del. Dec.23, 2013 ); Hawkins v. Waynesburg Coll., 2007 WL 2119223,
at *In.I (W.D. Pa. Jul.20, 2007).

On July 1, 2013, Plaintiffs filed a motion for class certification in this action. ECF No.
174. Defendant Aaron's Inc. filed a brief in opposition, [ECF No. 219] as well as an expert
report from Dr. Aviel Rubin ("Rubin Report"), on August 19, 2013. ECF No. 220-4. Thereafter,
Plaintiffs filed a reply brief on September 23, 2013, along with their own expert report from Dr.
Micah Sherr ("Original Sherr Report"), who reviewed the Rubin Report in preparation for his
rebuttal report. ECF No. 293.
This Court issued a Report and Recommendation denying Plaintiffs' motion for class
certification on January 31, 2014, [ECF No. 319] which the District Court adopted as its opinion
on March 31, 2014. ECF No. 340. On appeal, the Third Circuit Courts of Appeals reversed and
remanded for further consideration. ECF No. 364.
On October 14, 2016, Plaintiffs filed their Renewed Motion to Certify Class in this
action. ECF 439. The September 2013 Sherr rebuttal report was included as an exhibit in support
of the motion for class certification. ECF No. 440-2. Defendant Aaron's Inc. filed its Brief in
Opposition on November 4, 2016, which continued to rely upon the Rubin Report. ECF No. 451.
Thereafter, Plaintiffs submitted a reply brief in support of their Motion to Certify Class, which
included a new expert report by Dr. Micah Sherr ("New Sherr Report"). ECF No. 463; 463-5.
Defendant Aaron's Inc. filed a Motion to Strike Plaintiffs' New Expert Report, arguing
that the report is improper rebuttal testimony, it is untimely by more than three years, and
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Defendants will be prejudiced if it is allowed to stand. ECF No. 469. Additionally, Defendant
Aaron's Inc. requests the Court to award Aaron's Inc. its costs and attorneys' fees in connection
with this motion. Id. Plaintiffs filed a response brief in opposition to Defendant's motion to strike
on January 6, 2017. ECF No. 474. On January 24, 2017, Defendant Aaron's Inc. filed a reply

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Defendant Aspen Way Enterprises, Inc. joins in and adopts Aaron's Inc. 's Motion to Strike
Plaintiffs' New Expert Report. ECF No. 478.
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brief in further support of their motion to strike. ECF No. 489. This matter is fully briefed and is
ripe for disposition by this Court.

B. Discussion
a. Improper Rebuttal Evidence
i. Factual Background
Defendant Aaron's Inc. argues the New Sherr Report goes beyond the permissible
purpose of rebuttal evidence. Instead, Defendant Aaron's Inc. believes Plaintiffs are attempting
to advance new theories and methodologies to account for deficiencies in their original rebuttal
expert report as it pertains to their Rule 23(b)(3) "predominance" argument. ECF No. 470, pages
10-11.
In order to understand Defendant Aaron's Inc.' s arguments in their motion to strike more
clearly, it is important to examine the procedural history of Plaintiffs' pursuit of class
certification, particularly the Rule 23(b )(3) "predominance" arguments throughout this
litigation. 3
After Plaintiffs filed their Initial Motion for Class Certification on July 1, 2013, [ECF No.
174] Defendant Aaron's Inc. filed a brief in opposition on August 19, 2013. Defendant Aaron's
Inc. argued that "Plaintiffs have wholly failed to identify a common method of proof to establish
Defendants' liability under the ECPA." ECF No. 219, pages 26-27. Further, Defendant Aaron's
Inc. asserted that Rule 23(b)(3) requires more than a simple contention that the evidence of

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In particular, Federal Rule of Civil Procedure 23(b )(3) states "A class action may be maintained
if Rule 23(a) is satisfied and ifthe court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual members, and that a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy."
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record will establish that the PCRA software operated in the same manner to capture electronic
communications from each of the class members. Id.
In support of their argument in opposition to the Plaintiffs' motion for class certification,
Defendant Aaron's Inc. included an expert report from Dr. Avie! Rubin, who concluded that it
would be unreasonable to find that each and every use of the PCRA software constituted an
"interception" of an electronic communication. ECF No. 220-4, if 46. Notably, the Rubin Report
casts doubt on the feasibility of differentiating which interceptions were communications from
non-communications. Id. at iii! 46-50.
Thereafter, Plaintiffs filed a reply brief on September 23, 2013, along with their
own Original Sherr Report. ECF No. 293. Importantly, Dr. Sherr reviewed the Rubin
Report in preparation for his rebuttal report. As it pertains to Rule 23(b)(3), Plaintiffs
argued they could present common evidence regarding the design, capabilities and
operation of the PCRA software. ECF No. 293, pages 23-24. As such, Plaintiffs averred a
uniform jury instruction could be used to allow the jury to broadly determine liability as
to each element of the ECPA, including what matters are electronic communications,
whether the PCRA software is capable of contemporaneous interceptions, and what
interceptions fit within these findings. Id.
The Original Sherr Report supported Plaintiffs' Rule 23(b) assertion, stating:
Not all screenshots and keypresses correspond to a communication and it
is of course possible for a computer to never be connected to the Internet.
However, the DesignerWare database provides a common means of
determining which customers connected their computers to the Internet
and when they did so. This follows from the behavior of Aaron's
PCRA/Detective Mode System: entries for a computer only appear in the
database ifthe PC Rental Agent software running on that computer was
able to contact the DesignerWare database server via the Internet.

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ECF No. 293-2,

~

65. However, the Original Sherr Report did not set forth any claims or

automated capabilities that would preclude the necessary individualized analysis while
determining liability under the ECPA.
Thereafter, this Court issued a Report and Recommendation denying Plaintiffs'
motion for class certification on ascertainability grounds, [ECF No. 319] which the
District Court adopted as its Opinion on March 31, 2014. ECF No. 340. Plaintiffs
appealed that ruling to the Court of Appeals for the Third Circuit and this case was stayed
during the pendency of that appeal. The Third Circuit reversed and remanded for further
consideration. 4 ECF No. 364.
Upon the remand on May 8, 2015, this Court lifted the stay, reopened the case and
scheduled a status conference to discuss briefing deadlines on the class certification. At
the status conference held on May 26, 2015, when questioned as to whether Plaintiffs
wished to file a new brief in support of class certification, Plaintiffs' counsel responded:
"I would suggest that we have a reorganized brief. There was [sic] so
many things that were occurring all at the same time at the time of our
original briefing. We had all of the different franchisees involved. We had
all of the different claims involved. And since your Honor and Judge
Bissoon 's ruling have intervened post the briefing, it's my sense that
things could be cleaned up. It would make sense to reorganize the brief
because of that."
ECF No. 372, page 4. The Court reopened discovery and the motion was class
certification was scheduled to be filed by July 10, 2015.

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On appeal, the Defendants urged the Third Circuit to read the District Court's decision as one
on the predominance issue, independently review the record, and conclude that Plaintiffs failed
to satisfy Rule23(b)(3)'s predominance requirement. ECF No. 365-1, page 44. Although the
Third Circuit acknowledged that proving predominance could present a "formidable" barrier, it
declined to address this issue in the first instance. Id.

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Several major discovery disputes ensued, necessitating the postponement of the
filing of the motion for class certification. On October 15, 2015, this Court directed that
the motion for class certification be filed by February 26, 2016. ECF No. 386. More
discovery disputes ensued and this case was administratively stayed until the deposition
of a Rule 30(b) witness could be completed. Thereafter, the case was reopened and this
Court set a deadline of October 14, 2016 for the filing of the motion for class
certification. ECF No. 435.
On October 14, 2016, Plaintiffs filed a Renewed Motion for Class Certification.
ECF No. 439. Plaintiffs' Rule 23(b)(3) argument is substantially similar to the one
presented in their Initial Motion for Class Certification. 5 Significantly, Plaintiffs rely on
the Original Sherr Report and reiterate that the core facts and legal issues pertaining to
the Class's claims are common to all class members. ECF No. 440, pages 31-33. Further,
Plaintiffs state:
[w ]hether or not the screenshots, keystrokes, photographs, screen prompts,
and other data were contemporaneously captured by Detective Mode in
violation of the ECPA will also be subject to common proof at trial and
will predominate in this litigation. By way of further explanation, the
evidence of record will establish that the PCRA software and the
Detective Mode feature operated in the same manner to capture electronic
information from each of the class members. Accordingly, whether or not
this software captured information in violation of the ECPA will
predominate over individual issues. Thus, the Class is sufficiently
cohesive for purposes of Rule 23(b)(3)'s predominance requirement.
Id.
On November 4, 2016, Defendant Aaron's Inc. filed an opposition brief to Plaintiffs'
Renewed Motion for Class Certification. ECF No. 451. Defendant Aaron's Inc., relying on the

5

Compare Plaintiffs' Memorandum of Law in Support of Their Motion for Class Certification
[ECF No. 175, pages 31-32] to Plaintiffs' Memorandum of Law in Support of Their Renewed
Motion for Class Certification. ECF No. 440, pages 31-32.
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Rubin Report, again argued that Plaintiffs have failed to offer any evidence or substantive
analysis on how liability issues can be resolved without individualized inquiries. ECF No. 451,
pages 24-25. Defendant Aaron's Inc. asserted Plaintiffs offer only conclusory statements that
"core facts and legal issues" are "common" and will be a predominating legal issue. Id.
Thereafter, on December 2, 2016, Plaintiffs filed a Reply Brief in Support of their
Renewed Motion for Class Certification, which included the New Sherr Report. ECF No. 463. In
their reply brief, Plaintiffs claim that it is not their burden at this stage of the proceedings to
prove more than a common proof for each and every class member. Id. at page 16. However,
Plaintiffs felt it was necessary to include a new rebuttal report that would refute Defendants'
arguments and prove a liability analysis can be completed through a common class-wide basis
rather than an individualized analysis. Id. at page 19.
The parameters for the New Sherr Report include demonstrating whether it is possible
and practical to automate the process of analyzing the screenshots and emails produced by the
PCRA software. Further, if such a program is possible, Plaintiffs' expert could implement, test,
and analyze the results. ECF No. 463-5, iii! 5-6. The New Sherr Report concluded that Dr. Sherr
was able to create a software system that could identify most instances of communications that
the PCRA software captured contemporaneously with its transmissions with very few false
positives. Id. at if 12.

ii. Analysis
This New Sherr Report precipitated the instant motion to strike based on Defendants'
belief that the report goes beyond the permissible purpose of rebuttal evidence.

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Rebuttal cannot be used to correct a party's oversights in its case-in-chief. See Crowley v.
Chait, 322 F.Supp.2d 530, 551(D.N.J.2004). An expert's rebuttal report should be stricken ifit
contains new opinions or infonnation which contradicts the expert's initial report, but need not be
stricken if it contains merely "an elaboration of and [is] consistent with an opinion/issue
previously addressed" in the expert's initial report. Pritchard v. Dow Agro Scis., 263 F.R.D. 277,
284-85 (W.D.Pa.2009).
While rebuttal and reply reports "may cite new evidence and data so long as the new
evidence and data is offered to directly contradict or rebut the opposing party's expert ... expert
reports that simply address the same general subject matter as a previously-submitted report, but
do not directly contradict or rebut the actual contents of that prior report, do not qualify as proper
rebuttal." Withrow v. Spears. 2013 WL 4510305, at *12 (D.Del. Aug.22, 2013)
However, the Third Circuit has noted that there is no "bright line rule" whereby every
expert opinion "must be included in a preliminary report, or forever be precluded." Hill v.
Reederei F. Laeisz G.M.B.H., Rostock, 435 F.3d 404, 423 (3d Cir.2006). While the applicable
case law prohibits an expert from using rebuttal as a "do-over" of an original report, courts have
refrained from "automatically exclud[ing] anything an expert could have included in his or her
original report." Crowley, 322 F.Supp.2d at 551. See also. Reichold, Inc. v. U.S. Metals Ref.
Co., 2007 WL 1428559, at *13 (D.N.J. May 10, 2007) (reversing magistrate judge's ruling
denying plaintiffs use of supplemental report, explaining that the report "address[ ed] an
important issue on which [expert] did not have the data to opine at the time of his original
report.").

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Here, the crux of the issue is Plaintiffs' previous Rule 23(b)(3) position based upon the
Original Sherr Report as well as Plaintiffs' repeated opportunity to address Defendants'
consistent Rule 23(b)(3) "predominance" argument.
First, prior to filing the Original Sherr Report, Plaintiffs were fully aware of both
Defendants' Rule 23(b)(3) arguments as well as the Rubin Report's stance, which called into
question the feasibility of differentiating which interceptions were communications from noncommunications. ECF No. 220-4,

~~

46-50. Plaintiffs acknowledge that the Original Sherr

Report served as a rebuttal to the Rubin Report. ECF No. 474, page 2.
Next, after the Third Circuit's decision to reverse and remand the District Court's ruling
to deny class certification, as well as an extensive eighteen-month period of discovery, Plaintiffs
had the opportunity, at a minimum, to restructure or rephrase their Rule 23(b)(3) predominance
argument. However, Plaintiffs' Renewed Motion for Class Certification made essentially the
exact same Rule 23(b)(3) predominance argument as their Initial Motion for Class Certification.
Now, Plaintiffs believe they are entitled to another rebuttal report, even though
Defendants continue to rely upon the unchanged Rubin Report and set forth the same
predominance argument.
There is no claim in the Original Sherr Report that software exists that could identify
violations of the ECPA in a common fashion and preclude individualized analysis. Plaintiffs
attempt to point to paragraph 65 of the Original Sherr Report in support of their argument;
however, this Court finds that unpersuasive. In that paragraph, the Original Sherr Report
provides that "the DesignerWare database provides a common means of determining which
customers connected their computers to the Internet and when they did so." ECF No. 293-2, ~ 65.
However, the ability to identify which computers connected to the Internet and when they did so

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is an entirely separate issue from alleging the existence of software that can analyze and
determine ECPA violations on a common basis that would predominate over an individualized
analysis.
The New Sherr Report's parameters themselves are an indication that Plaintiffs are
attempting to create a new theory or methodology for their Rule 23(b )(3) argument. Specifically,
the Report itself indicates that Plaintiffs asked Dr. Sherr to demonstrate "whether it is possible
and practical to automate the process of analyzing the screenshots and emails produced by
Aaron's PCRA/Detective Mode System." ECF No. 463-5, ii 5. Further, Plaintiffs requested Dr.
Sherr to create and implement such a program, if it were possible at all. Id. at ii 6. After reading
the New Sherr Report's parameters, this Court finds Plaintiffs' argument unpersuasive that the
New Sherr Report was merely elaborating and expanding upon opinions consistent with
Plaintiffs' previous arguments.
Therefore, this Court finds Plaintiffs are attempting to establish a new theory and
methodology in pursuit of its class certification. As such, the Motion to Strike Plaintiffs' New
Expert Report will be granted. Pritchard, 263 F.R.D.at 284-285.

b. Timeliness
Moreover, Defendants argue that this Court should grant the motion to strike, even if it is
proper rebuttal evidence, because the new report is untimely.
Federal Rules of Civil Procedure Rule 26(D) states:
(D) Time to Disclose Expert Testimony. A party must make
these disclosures at the times and in the sequence that the court
orders. Absent a stipulation or a court order, the disclosures
must be made:
(i) at least 90 days before the date set for trial or for the case
to be ready for trial; or

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(ii) if the evidence is intended solely to contradict or rebut
evidence on the same subject matter identified by another
party under Rule 26(a)(2)(B) or (C), within 30 days after
the other party's disclosure.
Fed. R. Civ. P. 26.
Plaintiffs argue that Rule 26 disclosure rules do not apply to this action. Instead, in the
absence of an explicit Rule 26 disclosure rule, it would appear Plaintiffs believe they should be
granted unlimited time and attempts to file rebuttal experts reports. This argument is
unpersuasive to the Court.
Here, Defendants filed their expert report in August 19, 2013. ECF No. 220. Thereafter,
Plaintiffs filed their original expert report in September 23, 2013. ECF No. 293. Plaintiffs
acknowledge that the Original Sherr Report acted specifically as a rebuttal report to Defendant's
Rubin Report. ECF No. 474, page 2.
However, three years later, Plaintiffs are attempting to attach another rebuttal expert
report in their reply brief in support of their renewed motion for class certification. 6 ECF No.
463. The Court finds no reason why Plaintiffs should be given three years to file a second
rebuttal report, especially when Defendants have continued to rely on the Rubin Report and have
maintained substantially similar arguments throughout that time. Therefore, the Motion to Strike
will be granted on these alternative grounds. 7

6

After the District Court denied Plaintiffs' Initial Motion for Class Certification, Plaintiffs' filed
a notice of appeal to the Third Circuit Court of Appeals on June 16, 2014. ECF No. 358. As
such, on June 20, 2014, this Court filed an Order staying the case pending the resolution of the
appeal. ECF No. 361. After receiving the Third Circuit's decision to reverse and remand, this
Court reopened this action on May 5, 2015. ECF No. 368. Even after this Court factors in the
case's year-long stay, approximately two years had elapsed from the filing of Defendant's expert
report in August 2013 to Plaintiffs' new rebuttal report in December 2016.
7
As Plaintiffs' New Expert Report is both improper and untimely, this Court need not analyze
the potential prejudice Defendants would incur if the Court permitted Plaintiffs' New Sherr
Report to stand.
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c. Sanctions
Defendant Aaron's Inc. seek costs and attorneys' fees incurred in bringing this motion to
strike pursuant to Federal Rules of Civil Procedure 37(c)(l). Rule 37(c)(l) provides:
(I) Failure to Disclose or Supplement. If a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), 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. In addition to or instead of this sanction, the court,
on motion and after giving an opportunity to be heard:
(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).

Fed. R. Civ. P. 37(c)(l). This Court recognizes the severity of striking a pleading from the
record. As such, outside of granting Defendant's Motion to Strike Plaintiffs' New Expert Report,
no additional costs will be attributed to Plaintiffs. Therefore, all costs and fees will remain with
the appropriate parties.

For the reasons set forth above. Defendant's Motion to Strike Plaintiffs' New Expert
Report [ECF No. 469] will be granted.
An appropriate Order follows.

Isl Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

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