The Estate of Rafael Leavitt-Rey v. Samuel Marrero-Gonzalez et al

Filing 530

OPINION AND ORDER granting in part and denying in part 457 Motion in Limine. Plaintiff's request to exclude the YouTube videos is GRANTED. The request to prevent Defendants from raising affirmative defenses at trial is DENIED. The Court will , however, limit evidence to information presented during the Discovery Period, even if related to these new defenses. Lastly, the request to preclude Edgard Nevarez from testifying as an expert witness is DENIED. Signed by Judge Raul M. Arias-Marxuach on 8/4/2020. (mrr)

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
THE ESTATE OF RAFAEL LEAVITT REY,
Plaintiff
v.

CIVIL NO. 16-2769 (RAM)

SAMUEL MARRERO GONZALEZ, et al.,
Defendants.

OPINION AND ORDER 1
RAÚL M. ARIAS-MARXUACH, United States District Judge
Pending before the Court is Plaintiff the Estate of Rafael
“Raphy” Leavitt Rey’s (“Plaintiff” or “the Estate”) Motion in
Limine

(Docket

No.

457).

Having

considered

the

parties’

submissions in support and opposition thereto, 2 the Courts GRANTS
in part and DENIES in part the pending Motion in Limine. For the
reasons set forth below, the Court GRANTS the Estate’s Motion to
preclude the YouTube videos and DENIES the Estate’s Motion to
prevent Defendants from raising affirmative defenses at trial. The
Court

will,

however,

limit

evidence

to

information

presented

during the Discovery Period, even if related to these new defenses.
Lastly, the Court DENIES the Estate’s Motion in Limine to preclude
Defendants from presenting expert witness testimony. The Court

1 Sarah Fallon, a rising second-year student at the University of Michigan Law
School, assisted in the preparation of this Opinion and Order.
2

Docket Nos. 457, 460, 464, 472, 483 and 490.

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 2 of 20
Civil No. 16-2769

2

permits the testimony disclosed by Defendants and finds that it is
more appropriately characterized as expert witness testimony under
Rule 26(a)(2)(C), which does not require an expert report.
I. LEGAL STANDARD
Fed. R. Civ. P. 26 dictates the required disclosures a party
must proffer to the Court as well as the general provisions which
govern discovery issues before and during trial. Specifically,
Rule 26 provides that a party must provide to the other parties
copies “of all documents, electronically stored information, and
tangible things that the disclosing party has in its possession,
custody, or control and may use to support its claims or defenses,
unless the use would be solely for impeachment.” ZampierolloRheinfeldt v. Ingersoll-Rand de Puerto Rico, Inc., 2020 WL 881011,
at

*2

(D.P.R.

Feb.

21,

2020)

(quoting

Fed.

R.

Civ.

P.

26(a)(1)(A)(ii)). Fed. R. Civ. P. 26 “promotes fairness both in
the discovery process and at trial.” TLS Mgmt. & Mktg. Servs. LLC
v.

Rodriguez-Toledo,

2018

WL

4677451,

at

*12

(D.P.R.

2018)

(quotation omitted). It is meant to “prevent ‘trial by ambush,’
because opposing counsel cannot adequately cross-examine without
advance preparation.” Diaz-Casillas v. Doctors' Ctr. Hosp. San
Juan, 342 F. Supp. 3d 218, 226–27 (D.P.R. 2018) (citing Macaulay
v. Anas, 321 F.3d 45, 50, 52 (1st Cir. 2003)).
Rule 26 also governs expert witness disclosures. To wit, a
party must provide the name, “the address and telephone number of

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 3 of 20
Civil No. 16-2769

3

each individual likely to have discoverable information—along with
the subjects of that information—that the disclosing party may use
to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i).
The rule provides for two types of expert witnesses – “those
‘retained or specially employed’ to provide expert testimony, who
must provide a detailed written report […] pursuant to Fed. R.
Civ. P. 26(a)(2)(B), and those who may provide the truncated
disclosure

set

out

in Fed. R. Civ. P. 26(a)(2)(C).”

Wai

Feng

Trading Co. Ltd. v. Quick Fitting, Inc., 2018 WL 6726557, at *5
(D.R.I. 2018) (quoting Downey v. Bob’s Disc. Furniture Holdings,
Inc., 633 F.3d 1, 6 (1st Cir. 2011)). For expert witnesses who
have not been retained or specially employed for litigation,
Fed. R. Civ. P. 26(a)(2)(C) requires that the party “only disclose
the subject of the witness's expected expert testimony and a
summary of the facts and opinions that the expert may offer.”
Ferring Pharm., Inc. v. Braintree Labs., Inc., 215 F. Supp. 3d
114, 124 (D. Mass. 2016). See also In re Zofran (Ondansetron) Prod.
Liab. Litig., 2019 WL 4980310, at *4 (D. Mass. 2019).
If a party fails to abide by Fed. R. Civ. P. 26, Fed. R. Civ.
P. 37(c) applies. Rule 37 provides that:
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.

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 4 of 20
Civil No. 16-2769

4

Fed. R. Civ. P. 37(c)(1). This District has determined that Fed.
R.

Civ.

P.

37(c)(1)

“authorizes

the

trial

court

to

impose

sanctions, up to and including dismissal of the action on account
of a party's failure to comply with these automatic disclosure
obligations.” López Ramírez v. Grupo Hima San Pablo, Inc., 2020 WL
365554,

at

*3

(D.P.R.

2020)

(quotation

omitted).

However,

exclusion of evidence is “not a strictly mechanical exercise.”
Medina Rodriguez v. Canovanas Plaza Rial Econo Rial, LLC, 2019 WL
5448538, at *5 (D.P.R. 2019) (quotation omitted). The party facing
sanctions has “the burden of proving substantial justification or
harmlessness

to

get

a

penalty

less

severe

than

evidence

preclusion.” Eldridge v. Gordon Bros. Grp., L.L.C., 863 F.3d 66,
85 (1st Cir. 2017).
II.

FACTUAL AND PROCEDURAL BACKGROUND

On October 4, 2016, the Estate filed suit against twelve (12)
musicians, their spouses, and the conjugal partnership between
them, when applicable. (Docket No. 1 at 1-2). The Estate accused
the musicians of copyright infringement under the Copyright Act
and the Puerto Rico Moral Rights Act for five (5) of the Estate’s
songs. Id. at 13-24. The Complaint also accused Madera Events,
Corp., the Municipality of Hormigueros, the Centro Cultural de
Corozal,

Inc.,

Communications,

the
Inc.

Municipality
and

the

of

Corozal,

Municipality

JAR
of

Marketing
Utuado

of

contributory infringement. Id. at 24-28. Finally, the Complaint

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 5 of 20
Civil No. 16-2769

5

sought a preliminary injunction to enjoin Defendants’ continued
violations of the Estate’s rights. Id. at 28-29.
On February 19, 2020, the Estate filed the pending Motion in
Limine (Docket No. 457) against the musicians, their spouses and
conjugal partnership between them, if applicable (collectively,
“Defendants”). Generally, it averred that Defendants disclosed
certain evidence in an untimely manner and that they should be
precluded from presenting that evidence now. The evidence and
matters in question include: (1) YouTube videos not disclosed
during the Discovery Period; (2) four affirmative defenses brought
after the close of Discovery, and (3) an attempt to present expert
witnesses, who Defendants did not disclose in a timely manner and
for whom they did not prepare expert witness reports. Id. at 4.
Defendants disclosed the defenses and expert witnesses in the draft
Joint Proposed Pretrial Memorandum (“JPPM”) sent to the Estate on
January 30, 2019, with the final version of the JPPM submitted to
the Court on May 2, 2019. (Docket Nos. 472 at 7; 361). Discovery
closed on September 12, 2018. (Docket Nos. 159; 457 at 9 n.6).
After the Estate’s Motion in Limine, there were numerous
motions filed both in support of and in opposition to the pending
motion: Defendants’ Motion in Opposition to Plaintiff’s Motion in
Limine

at

Concerning

Dkt.

#457

Evidentiary

and/or

Requesting

Motions

(Docket

the
No.

Court’s
460),

Guidance

Plaintiff’s

Motion in Response to Defendants’ Request for Guidance Concerning

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 6 of 20
Civil No. 16-2769

6

Evidentiary Motions (Docket No. 464), Defendants’ Opposition to
Plaintiff’s Motion in Limine at Dkt. #457 (Docket No. 472), the
Estate's Reply to Defendants' Opposition to Motion in Limine at
Docket

No.

457

(Docket

No.

483),

and

Defendants’

Sur-Reply

Concerning Opposition to Plaintiff’s Motion in Limine at Dkt. #457.
(Docket No. 490).
III. ANALYSIS
A. YOUTUBE VIDEOS
Defendants in the present case look to admit into evidence
publicly available YouTube videos not disclosed throughout the
Discovery process. (Docket No. 457 at 4). Defendants assert that
their late disclosure was harmless or justified. (Docket No. 472
at 6). The Estate contends that it is prejudiced by the late
disclosure because it was not allowed an opportunity to depose
Defendants’ experts over the reach and conclusions they seek to
derive from the videos. (Docket No. 483 at 17). The Estate further
contends that, although the videos are publicly available, they
had no way of knowing which videos, if any, Defendants would aim
to admit into evidence if undisclosed. Id.
The Federal Rules of Civil Procedure do not grant an automatic
exception to disclosure rules for publicly available information.
See Shatsky v. Syrian Arab Republic, 312 F.R.D. 219, 223 (D.D.C.
2015). Doing so would require parties to “scour the public domain”
for information the opposing party could potentially use against

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 7 of 20
Civil No. 16-2769

7

them throughout litigation. Id. at 224. Thus, parties must provide
notice through disclosure of evidence “central to its claims or
defenses,” even if it is publicly available. See Martino v. Kiewit
N.M. Corp., 600 Fed. Appx. 908, 911 (5th Cir. 2015).
The U.S. Court of Appeals for the District of Columbia’s
Shatsky opinion held that plaintiffs were required to disclose
information during the discovery period even though it was publicly
available.

See

Shatsky,

312

F.R.D.

at

223.

Thus,

discovery

sanctions were necessary to prevent prejudice to the opposing
party. Id. at 225. The Court determined discovery violations cause
prejudice if they prevent the opposition “from timely reviewing
relevant evidence.” Id. at 226. Quoting the standard in Shatsky,
the U.S. District Court for the District of Columbia in Stewart v.
District of Columbia then held that the plaintiff was required to
produce all documents during discovery which she intended to use
to

support

her

claims

and

which

the

defendant’s

requests

encompassed. See Stewart v. District of Columbia, 2019 WL 4261067,
at *6 (D.D.C. 2019). The documents in question in Stewart were
either publicly available or in the opposing party’s possession
but were nonetheless precluded from evidence. Id. As in Shatsky
and Stewart, discovery sanctions provide the appropriate means of
preventing prejudice to the Estate. Here, the disclosure of the
YouTube videos would cause prejudice in that the Estate would not

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 8 of 20
Civil No. 16-2769

8

have the opportunity to prepare responses to Defendants’ claims
regarding the videos. (Docket 483 at 17).
Similarly, in Martino, the plaintiff failed to disclose a
contract during the Discovery Period. See Martino, 600 Fed. App’x.
at 911. Plaintiff later attempted to justify the non-disclosure by
claiming that, as it was a public document, it was available to
both parties. Id. The U.S. Court of Appeals for the Fifth Circuit
held this was not a substantial justification and the link between
Rule

26

disclosure

requirements

and

Rule

37

sanctions

appropriately allows for the exclusion of late disclosed, publicly
available documents. Id. As in Martino, Defendants here have not
provided a justification for the untimely disclosure other than
that their inclusion would be harmless. (Docket 472 at 17-19).
Inclusion of the videos would not, however, be harmless to the
Estate. The harm presented by Defendants’ untimely disclosure
includes the current Motion in Limine and subsequent delay to the
Court’s timeline. See Zampierollo-Rheinfeldt v. Ingersoll-Rand de
P.R., Inc., 2020 WL 881011, at *6 (D.P.R. 2020) (holding that a
delay in the Court’s timeline and potentially re-opening discovery
because of the pending Motion in Limine amounted to harm caused,
even

if

the

opposing

party

had

access

to

the

evidence).

Additionally, should the YouTube videos be admitted into evidence,
re-opening discovery would present further harm. Id.

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 9 of 20
Civil No. 16-2769

9

In the present case, the videos were likewise disclosed after
the close of discovery. Thus, preclusion is warranted. Cf. Scholz
v. Goudreau, 901 F.3d 37, 51 (1st Cir. 2018) (holding in bandmember
trademark

case

that

a

timely-presented

YouTube

video

was

admissible because it served a commercial purpose and was not
subject to constitutional protection). Regardless of their purpose
in the litigation, Defendants’ YouTube videos are inadmissible in
the case before this Court because they were not presented before
the discovery deadline. Plaintiffs’ request to exclude the YouTube
videos is therefore GRANTED.
B. AFFIRMATIVE DEFENSES
Defendants

attempt

to

raise

the

following

affirmative

defenses: (1) that there are co-owners of the alleged infringed
works which are indispensable parties and that the Estate has no
standing to bring forth this action; (2) that the Estate has not
sufficiently identified the Copyrighted Works because they have
failed to establish the existence of a deposit copy; (3) that the
Copyrighted Works are in the public domain due to their publication
without copyright notice, and (4) that the Estate has engaged in
copyright misuse or unclean hands. (Docket No. 472 at 19). The
Estate claims these defenses cannot be brought because they, along
with their supporting evidence, were not disclosed until after the
close of discovery, resulting in prejudice to the Estate. (Docket

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 10 of 20
Civil No. 16-2769

10

Nos. 457 at 10, 13; 483 at 18). Defendants’ initial defense was a
retroactive ASCAP license theory. (Docket No. 483 at 9).
Generally, a failure to plead an affirmative defense in an
answer to the complaint results in a waiver of the defense. See
Conjugal Partnership v. Conjugal Partnership, 22 F.3d 391, 400
(1st Cir. 1994). The purpose of this requirement is to give the
plaintiff sufficient notice to develop evidence and arguments to
oppose the defense. See Knapp Shoes, Inc. v. Sylvania Shoe Mfg.
Corp. 15 F.3d 1222, 1226 (1st Cir. 1994). The central concern is
the prevention of unfair surprise and prejudice, which a trial
Court should evaluate within the totality of the circumstances of
the case. See Wolf v. Reliance Standard Life Ins. Co., 71 F.3d
444, 450 (1st Cir. 1995). However, there are exceptions to this
rule. For example, a party may present affirmative defenses later
in the proceedings when there is no prejudice to the opposing
party. See Conjugal Partnership, 22 F.3d at 400. Likewise, another
exception occurs when grounds for the affirmative defense were not
evident at the time the answer to the complaint was filed. See
Davignon v. Clemmey, 322 F.3d 1, 15 (1st Cir. 2003).
The Court will not consider solely the extent to which the
defense is detrimental to the Estate because all affirmative
defenses are intended to be detrimental to the plaintiff. See Smith
v. Travelers Casualty Ins. Co. of Am., 932 F.3d 302, 309 (5th Cir.
2019) (quotation omitted). Instead, the Court’s evaluation of

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 11 of 20
Civil No. 16-2769

11

prejudice will be limited to whether the defense substantially
changes the party’s theory of the case or is introduced too late
for the plaintiff to prepare. Id.; See also Wolf, 71 F.3d at 450
(citing 6 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1487 (3d ed. 1990)). As discussed below, the
affirmative defenses presented in the draft JPPM and in the final
JPPM were not filed late enough to leave the Estate without time
to prepare.
For example, Joglor, LLC v. First American Title Insurance
Co. held the plaintiff was not prejudiced in the assertion of a
new defense for three reasons: (1) the plaintiff held the evidence
that prompted the defense, which the defendant did not receive
until discovery; (2) the earlier defenses encompassed the current
one, and (3) the plaintiff had sufficient time to brief the
defense. See Joglor, LLC v. First American Title Insurance Co.,
261 F. Supp. 3d 224, 231-32 (D.P.R. 2016).
A similar scenario to Joglor’s occurs herein. First, the
Estate, in claiming ownership of the Copyrighted Works at issue,
is the party most likely to have the evidence applicable to the
affirmative defenses. (Docket No. 490 at 4). Defendants maintain
they plan to rely mostly on evidence presented by the Estate during
discovery,

which

further

supports

the

conclusion

that

these

defenses arose out of Discovery information held by the Estate.
Id. Secondly, the affirmative defenses brought by Defendants are

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 12 of 20
Civil No. 16-2769

12

broadly encompassed in the Estate’s ability to assert ownership of
the copyrights. Id. The Court finds it reasonable to conclude that,
throughout the Discovery Period, evidence would arise as to certain
defenses,

namely:

(1)

the

presence

of

co-owners,

(2)

the

identification of the Works, (3) the publication of the Works, and
(4) the existence of Copyright misuse. (Docket No. 472 at 19).
Finally, the defenses were first raised in Defendants’ draft JPPM
on January 30, 2019. Id. at 7. Therefore, each party had over a
year to brief these defenses prior to trial, which is currently
scheduled for September 2020.
In Puerto Rico Tel. Co. v. San Juan Cable Co., the District
of Puerto Rico similarly held the defendant’s assertion of Parker
immunity

as

a

new

affirmative

defense

did

not

prejudice

the

plaintiff, which the Court found was evinced by the plaintiff’s
thorough opposition to it. See Puerto Rico Tel. Co. v. San Juan
Cable Co., 196 F. Supp. 3d 207, 235 (D.P.R. 2016), aff'd sub
nom. Puerto Rico Tel. Co. v. San Juan Cable Co., 874 F.3d 767 (1st
Cir. 2017). In that case, the defense was not raised days before
trial but during summary judgment and no additional discovery was
necessary. Id. See also Calloway v. Marvel Entm’t Grp., 110 F.R.D.
45, 48 (S.D.N.Y. 1986) (allowing amendment of answers to include
defenses of fair use of copyrighted material, apparent authority,
and equitable estoppel because there was no indication of undue
delay, no need for additional discovery, nor any prejudice to

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 13 of 20
Civil No. 16-2769

13

plaintiff). This parallels the current case because the Estate
filed two lengthy oppositions to Defendants’ claims. (Docket Nos.
457

and

483).

Further,

Defendants

claim

they

listed

all

the

evidence pertaining to the defenses in the draft JPPM sent to the
Estate in January 2019. (Docket No. 472 at 7). See e.g., Sorenson
v. Wolfson, 96 F. Supp. 3d 347, 364-65 (S.D.N.Y. 2015) (holding
that a defendant could permissibly raise an affirmative defense
for the first time in the Joint Proposed Pretrial Memorandum
because it did not prejudice the plaintiff). Hence, this Court
determines that permitting the additional defenses would not delay
the proceedings any further.
Additionally, it appears that no discovery is needed for the
Estate to refute the newly-asserted defenses because the relevant
evidence in opposition and in support of the defenses was made
available to it during discovery. Id. Notably, the Court has
previously

stated

that

it

would

not

allow

the

reopening

of

discovery. (Docket No. 392). See Wolf v. Reliance Standard Life
Ins. Co., 71 F.3d 444, 450 (1st Cir. 1995) (holding that a defense
raised days before trial prejudiced plaintiffs and should not be
admitted because it would have re-opened discovery). Thus, the
evidence on which Defendants may rely to support their affirmative
defenses will be limited to evidence already on the record to
prevent prejudice to the Estate in the form of delay of the trial
to gather evidence to refute the defenses. With this restriction,

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 14 of 20
Civil No. 16-2769

14

the Court DENIES the Estate’s request to preclude the affirmative
defenses and finds that Defendants may raise the newly-asserted
affirmative defenses.
C. EXPERT WITNESS DISCLOSURE
Lastly, Defendants included three expert witnesses in the
JPPM, of which they intend to use only one – Edgard Nevárez
(“Nevárez”). (Docket No. 472 at 7-8). The Estate contends the
exclusion of his testimony is just and necessary as he was not
disclosed at the time submission of expert witnesses was required
per Rule 26 and the Case Management Order (“CMO”) (or 30 days
before the close of discovery). (Docket Nos. 159; 457 at 9 n.6).
The Estate argues that Nevárez is an expert witness presented in
response to their expert witness Allende Goitía. (Docket No. 483
at 14-15). As Nevárez was disclosed more than 30 days after the
Estate’s disclosure, the Estate contends Nevárez’s disclosure was
untimely and his testimony must be precluded. Id. In addition to
the

alleged

untimely

disclosure,

no

expert

report

has

been

submitted for Nevárez. Id. at 15. The Estate further contends that
Defendants’ failure to comply with Rule 26 was not justified and
instead was the result of a failed litigation strategy. Id. at 8.
On the other hand, Defendants contend Nevárez qualifies as
one of the exceptions to general sanctions provided by the First
Circuit case Gagnon and suggest its five-factor test for reviewing
preclusion favors admitting his testimony. (Docket No. 472 at 3);

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 15 of 20
Civil No. 16-2769

15

See Gagnon v. Teledyne Princeton, 437 F.3d 188, 197 (1st Cir. 2006)
(including late disclosures of a potential witness known to all
parties as permissible noncompliance). Defendants further claim
that Nevárez’s testimony is mostly factual and would be in response
to

the

Estate’s

expert,

thus

making

its

untimely

disclosure

substantially justified or harmless. (Docket No. 472 at 11).
Defendants explain they have presented him as an expert witness to
guard his testimony from limitations because some aspects of it
may be considered expert testimony. Id. at 13.
Before determining whether Nevárez was untimely disclosed,
the Court will first determine the appropriate classification for
Nevárez as a witness. Based on his classification, the Court will
then

determine

whether

Defendants

have

made

the

necessary

disclosures and have met the deadline for those disclosures.
Fed.

R.

Civ.

P.

26(a)(2)(B)

and

(C)

provide

report

and

disclosure requirements for two types of expert witnesses. See Wai
Feng Trading Co. Ltd., 2018 WL 6726557, at *5. Under Rule 26, a
detailed written report is solely required for a witness who is
“retained or specially employed to provide expert testimony in the
case or one whose duties as the party's employee regularly involve
giving expert testimony.” Fed. R. Civ. P. Rule 26(a)(2)(B). If a
witness is not specially employed or retained for the purpose of
litigation and his opinion is based on observation of the events
at issue, no Rule 26 report is necessary. See Downey, 633 F.3d at

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 16 of 20
Civil No. 16-2769

16

7. Further, the Advisory Committee notes to Rule 26 emphasize that
the disclosures required under Rule 26(a)(2)(C) are “considerably
less extensive than the report required by Rule 26(a)(2)(B).”
Advisory Committee Notes on 2010 Amendment to Fed. R. Civ. P. 26.
For example, in Downey the First Circuit held that an expert
witness report did not have to be filed for an exterminator
testifying at trial. See Downey, 633 F.3d at 8. The Court found
that he was an expert witness for whom a report under Rule
26(a)(2)(B) was not necessary because his testimony arose from his
“ground-level

involvement

in

the

events

giving

rise

to

the

litigation” rather than from his enlistment as an expert. Id. at
6. The Court also determined that a report was not necessary under
Rule 26 because he based his opinion on “personal knowledge and
information gleaned in the course of his initial inspection.” Id.
at 8. In the case at bar, Nevárez, as the musical director of
SMYSO, played a key role in the events giving rise to this
litigation. (Docket 472 at 12). Defendants’ purported use of his
testimony – to answer whether Defendants have modified La Selecta’s
music

to

Nevárez’s

harm
role

the
as

Estate’s
the

reputation

band’s

musical

–

relates

director.

directly
Id.

at

to
15.

Therefore, if his testimony is limited to his knowledge of the
band’s music prior to the litigation, no expert witness report is
required under Rule 26.

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 17 of 20
Civil No. 16-2769

17

Referencing Downey, Saucedo v. Gardner held that an expert’s
disclosure pursuant to Rule 26(a)(2)(C) included “the subject
matter of his testimony and a summary of the facts and opinions to
which he is expected to testify.” Saucedo v. Gardner, 2018 WL
1175066, at *2–3 (D.N.H. 2018). But, the disclosure required by
Rule 26(a)(2)(C), while less extensive than Rule 26(a)(2)(B)’s,
must not be generic or conclusory. Id. The Saucedo Court determined
that Defendants’ disclosure of the subject matter, opinions, and
specific factual topics to be included in testimony was sufficient.
Id. Cf. Yerramsetty v. Dunkin' Donuts Ne., Inc., 2020 WL 533130,
at *7-8 (D. Me. 2020) (holding that expert witness disclosures
that plainly stated that the treating physician would testify as
to “causation, prognosis, disability, and future medical expenses”
were

too

vague

to

satisfy

Rule

26(a)(2)(C),

and,

therefore,

preclusion of expert witness testimony was proper).
In the present case, Defendants’ disclosure of Nevárez as an
expert witness more closely resembles the expert’s disclosure in
Saucedo than Yerramsetty. Defendants stipulated in the draft JPPM
that Nevárez has knowledge of the reproduction and adaptation of
the Copyrighted Works, the common practices of La Selecta including
the public performances of the Copyrighted Works, Defendants’
profits and the creation of SMYSO. (Docket No. 472-4 at 140). They
further

disclose

his

expert

knowledge

of

the

“composition,

arrangement, and production of popular music, including (but not

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 18 of 20
Civil No. 16-2769

18

limited to) music in the salsa genre, the history of the salsa
genre, and the contributions of Samuel Marrero González to the
salsa genre.” Id. at 141-42. Additionally, in May 2019, Defendants
provided

the

Estate

with

a

copy

of

Nevárez’s

resume

and

professional qualifications. (Docket No. 472-6 at 1). The Court
thus finds that the disclosure is not generic or conclusory and is
thus sufficient under Rule 26(a)(2)(C).
As to the timing of the Rule 26(a)(2)(C) disclosures, the
District of New Hampshire in Sprague v. Liberty Mut. Ins. Co. held
that the deadline established in the “Discovery Plan” did not apply
to experts who are not specially retained. See Sprague v. Liberty
Mut. Ins. Co., 177 F.R.D. 78, 79 (D.N.H. 1998). The plan set a
date for disclosure of all retained experts under Rule 26(a)(2)
but was silent as to experts who were not specially retained to
testify. Id. The Court held that Plaintiff was required to disclose
non-retained experts only ninety (90) days before the trial date.
Id. at 80; see also Westerdahl v. Williams, 276 F.R.D. 405, 408
n.3 (D.N.H. 2011) (holding that expert’s late disclosure was
harmless partly given that “[i]nsofar as Williams argues that this
disclosure was untimely […] it is not clear from the [discovery]
plan that this deadline even applies to non-retained experts.”)
Similarly,

the

applicable

Case

Management

Order

(“CMO”)

stipulates that all Rule 26(a)(2)(B) disclosures, which apply to
retained or specially employed expert witnesses, must be made by

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 19 of 20
Civil No. 16-2769

19

Defendants thirty (30) days before the discovery deadline. (Docket
No. 159 at 3-4). However, Nevárez was not specially retained for
the litigation – he is a Defendant in the case at bar. Further, as
concluded above, his involvement in the events giving rise to the
litigation have led the Court to conclude he is not an expert
subject to Rule 26(a)(2)(B) requirements. As in Sprague, here the
CMO

does

not

set

a

deadline

for

non-retained

experts.

Id.

Therefore, the Court determines the Rule 26(a)(2)(C) deadline – at
least ninety (90) days before trial – applies to the Defendants’
disclosure of Nevárez. His disclosure is timely and subject to the
lesser requirements of Rule 26(a)(2)(C). The Court DENIES the
Estate’s request to preclude Nevárez from testifying as an expert
witness.
IV.

CONCLUSION

For the reasons analyzed above, the Court GRANTS IN PART AND
DENIES IN PART the Estate’s Motion in Limine at Docket No. 457. As
to the YouTube videos, their untimely disclosure justifies their
exclusion from evidence. The harm and prejudice caused by admitting
the videos into evidence are not negated by the fact that they are
publicly available. Regarding the affirmative defenses, they may
be appropriately raised at trial. The Court will, however, preclude
from evidence any information that was not presented during the
discovery period, even if the delay is related to these defenses
as being newly raised. Lastly, Nevárez’s testimony is that of an

Case 3:16-cv-02769-RAM-BJM Document 530 Filed 08/04/20 Page 20 of 20
Civil No. 16-2769

20

expert witness under Rule 26(a)(2)(C) and was not required to
render a report. The Court will permit his testimony given his
involvement in the events that gave rise to the litigation as
SMYSO’s musical director.
IT IS SO ORDERED.
In San Juan Puerto Rico, this 4th day of August 2020.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge