Property Solutions International v. Yardi Systems

Filing 560

MEMORANDUM DECISION AND ORDER GRANTING ENTRATA, INC.'S EMERGENCY MOTION TO STRIKE YARDI'S SUPPLEMENTAL EXPERT REPORTS IN PART-granting in part 456 Motion to Strike. See Order for details. Signed by Judge Clark Waddoups on 3/28/19. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ENTRATA, INC., a Delaware corporation,

MEMORANDUM DECISION AND
ORDER GRANTING ENTRATA, INC.’S
EMERGENCY MOTION TO STRIKE
YARDI’S SUPPLEMENTAL EXPERT
REPORTS IN PART

Plaintiff,
v.
YARDI SYSTEMS, INC., a California
corporation

Case No. 2:15-cv-00102

Defendants.

Judge Clark Waddoups

Before the court is Plaintiff Entrata, Inc.’s Emergency Motion to Strike Yardi’s
Supplemental Expert Reports of Gordon Rausser and Richard Hoffman, (ECF No. 456).
Background
On February 13, 2019 Entrata filed an Emergency Motion to Strike the Supplemental
Expert Reports of Gordon Rausser and Richard Hoffman. (ECF No. 456.) On February 26, 2019,
the court entered an order finding that “Yardi ha[d] repeatedly acted in bad faith in delaying the
production of the yCRM data.”1 (ECF No. 492 at 24.) On March 4, 2019 the court held oral
argument to determine “how sanctions should apply and to what extent.” (See ECF No. 492 at
26; ECF No. 501.)
As the court discussed in its previous order, the yCRM database “is a tool that Yardi uses
to manage its relationships and interactions with its customers and potential customers.” (ECF
No. 492 at 4 (citation and internal quotation marks omitted).) Entrata’s position throughout this
litigation has been that the yCRM data is highly relevant and necessary to accurately evaluate

1

Much of the background of this case is discussed in the court’s prior order, (ECF No. 492).

1

economic issues related to Entrata’s antitrust claims against Yardi.2 (See e.g., ECF No. 171.) The
parties’ experts analyzed these economic issues in their extensive expert reports. Discussion of
some of these economic issues—and each party’s position regarding these issues—provides
helpful context for resolving this dispute.
Since Entrata filed its Complaint in February of 2015, it has alleged that there are two
distinct markets in this case, at least one of which involves managers of multifamily properties
consisting of more than 1,000 units. In its Complaint, Entrata alleged:
there are separate and distinct product markets for
(a) core property management accounting software products for use in the multifamily housing industry in the United States by “enterprise”-sized property
management companies (such as Yardi’s Voyager product), which typically
manage at least 1,000 units (“Core Accounting Products” or the “Accounting
Product Market”), and
(b) “plug-in” or portal special purpose software products (such as Property
Solutions’ Point Solution Products) that integrate or interface with the core
property management accounting software products, such as Voyager
(“Integration Products” or the “Integration Product Market”).
(Compl. ¶ 63, ECF No. 2 at 29–30 (bold added).)
On April 18, 2016, Entrata filed its First Amended Complaint. (ECF No. 55.) In the First
Amended Complaint, Entrata alleged:
there are separate and distinct product markets for
(a) core property management accounting software products (such as Yardi
Voyager) used in the multi-family housing industry in the United States by
“enterprise”-sized property management companies, which typically manage at
least 1,000 units (“Core Accounting Products” or the “Accounting Product
Market”), and
(b) “plug-in” or portal special purpose software products (such as Entrata’s Point
Solution Products) that integrate or interface with the Core Accounting Products

In contrast, Yardi’s has taken multiple inconsistent positions regarding the relevance of this data. Yardi’s shifting
positions are discussed in detail in the court’s previous order. (See ECF No. 492.)
2

2

(“Integration Products” or the “Integration Product Market”) in the United States.
(Am. Compl. ¶ 96, ECF No. 55 at 40 (bold added).)
On July 23, 2018, Entrata’s expert, Dr. Kearl, submitted his initial Expert Report.3 In his
Expert Report, Dr. Kearl “conclude[d] that the relevant product markets . . . in which to evaluate
the monopolization . . . claims in this case are” [1] “the market for Core Property Management
Systems for Enterprise Property Managers of Conventional Multifamily properties”4 and [2]
“the market for Suite Integration Products for Enterprise Property Managers of Conventional
Multifamily properties that use the Yardi Voyager Core Property Management System.”5
(Expert Report of James R. Kearl, ¶ 35, ECF No. 461-21 at 21 (bold added).) Regarding both
markets, Dr. Kearl stated: “unless I otherwise specify, it should be understood I refer to
Enterprise-level Conventional Multifamily property managers.” (Expert Report of James R.
Kearl, ¶ 35, ECF No. 461-21 at 21.) According to Dr. Kearl, “Enterprise Property Managers” are
the managers “at issue in this case,”—“managers of multifamily properties consisting of more
than 1,000 units.” (Expert Report of James R. Kearl, ¶ 11, ECF No. 461-21 at 7 (bold added).)
Thus, from the beginning of this case, Entrata has taken the position that the relevant market is
comprised of managers of multifamily properties consisting of at least 1,000 units.

As the court previously noted, Dr. Kearl’s report was made without the benefit of complete yCRM data that Yardi
was withholding. (See ECF No. 492 at 10.) Part of the data was Top Companies Reports which were extracted from
the yCRM data.
3

According to Dr. Kearl, “Core Property Management Systems generally include accounting functionalities such as
a general ledger and accounts payable/receivable and enable the creation of specific financial reports. They also
manage inventory, assign residents to units (and units to specific properties and properties to bank accounts), and
track rent collections.” (Expert Report of James R. Kearl, ¶ 12, ECF No. 461-21 at 8.)
4

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According to Dr. Kearl, “Integration Products are sold separately from Core Property Management Systems and
are designed to interface with those systems in order to provide additional functionalities such as online availability
listings, online tenant screening, online lease execution, and online rent or utility bill payment.” (Expert Report of
James R. Kearl, ¶ 14, ECF No. 461-21 at 9.)

3

On August 27, 2018, Dr. Gordon Rausser, one of Yardi’s experts, submitted his Expert
Reply Report to Dr. Kearl’s July 23, 2018 report. (Expert Reply Report of Gordon Rausser, ¶ 3
ECF No. 461-16 at 7.) In this Reply Report, Dr. Rausser criticized Dr. Kearl’s relevant market
definitions. (See Expert Reply Report of Gordon Rausser, ¶ 12 ECF No. 461-16 at 11.) Relevant
here, Dr. Rausser argued that “Dr. Kearl’s proposed accounting platform market is . . . artificially
restricted by proposing that property managers of at least 1,000 units purchase their software in a
separate relevant market from those who manage less than 1,000 units.”6 (Expert Reply Report
of Gordon Rausser, ¶ 12 ECF No. 461-16 at 11 (emphasis in original).) But nowhere in this
Expert Reply Report did Dr. Rausser criticize Dr. Kearl for assuming that software used in
managing conventional multifamily residential properties is sold in a market different than
software used for other types of residential rental properties.
As the court noted in its previous order, when Dr. Kearl wrote his July 2018 Expert
Report, Yardi had not yet disclosed all of the relevant yCRM data. (See ECF No. 492 at 10.)
Yardi had only “produced yCRM data showing the companies” that Yardi “categorized as multifamily . . . .” (ECF NO. 461-5 at 3.) In its May 2018 production, Yardi did not disclose those
Portfolios it categorized as “niche”—even if those Portfolios contained multi-family units. (See
ECF No. 492 at 13–14.) And, as previously discussed, Yardi had not yet disclosed the data

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Dr. Rausser also criticized Dr. Kearl’s “proposed bifurcation between accounting platforms and software that
integrates with accounting platforms” because, according to Dr. Rausser, this “violates industry trends toward
single-stack solutions, in which providers sell a pre-integrated package of functionality (both accounting and
integration) in a single purchase.” (Expert Reply Report of Gordon Rausser, ¶ 12 ECF No. 461-16 at 11.) Dr.
Rausser also criticized Dr. Kearl for removing “from his proposed accounting platform market the vast majority of
Yardi’s actual competitors.” (Expert Reply Report of Gordon Rausser, ¶ 12 ECF No. 461-16 at 11.) Dr. Rausser also
criticized Dr. Kearl’s Integration Products market for consisting “only of sales of ‘suites’ of integration products
sold by just Entrata and Yardi to only those using Yardi’s Voyager” and ignoring “the fact that these same
customers have more than 200 other vendors from whom they can, and regularly do, choose integration products
that interface with Voyager in addition to or in lieu of the supposed ‘suites.’” (See Expert Reply Report of Gordon
Rausser, ¶ 12 ECF No. 461-16 at 11–12.)

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containing a “prior system field” in what it would eventually label “PORTFOLIO2.” (See ECF
No. 492 at 16.) At the March 4, 2019 hearing, Entrata’s counsel stated that Yardi’s production
was incomplete for two distinct reasons. First, it was incomplete because it was “missing
companies.” Second, it was incomplete because it was “missing fields,” or “missing data” for
companies that had already been disclosed—like the prior system field data (ECF No. 549 at 89.)
As discussed below, the missing data would be used by Entrata’s and Yardi’s experts in their
supplemental reports, but in very different ways.7
On February 8, 2019, Dr. Kearl filed a supplemental report. In his supplement, he
discussed the “new data field from the yCRM database titled ‘Prior System.’” (Supplemental
Expert Report of James R. Kearl, ¶ 5, ECF No. 461-9 at 5.) He understood “this field to show the
Core Property Management System that a customer used prior to the customer’s current system.”
(Supplemental Expert Report of James R. Kearl, ¶ 5, ECF No. 461-9 at 5.) According to Dr.
Kearl, the “use of these two data fields allows for the identification of each instance in the yCRM
data where a customer has either switched its Core Property Management System to Voyager
from a non-Voyager system . . . or has switched from Voyager to another Core Property
Management System . . . .” (Supplemental Expert Report of James R. Kearl, ¶ 5, ECF No. 461-9
at 5.) According to Dr. Kearl, “[t]hese data strongly support [his] conclusions regarding
switching costs and historical lock-in.” (Supplemental Expert Report of James R. Kearl, ¶ 5,
ECF No. 461-9 at 5.) At oral argument, Entrata’s counsel represented that this field “shows the
extraordinary market power” Yardi has, demonstrates “lock in,” and “is the field [Yardi] never
wanted [Entrata] to see.” (ECF No. 549 at 31.)

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As discussed in the previous order, Dr. Kearl submitted a reply report on December 7, 2018, but did not address
the “new” yCRM data that Yardi produced on November 9, 2018. (See ECF No. 492 at 15.) On February 8, 2019,
both Dr. Kearl and Dr. Rausser submitted supplemental expert reports. (See ECF No. 492 at 16–17.)

5

In his supplemental report, Dr. Kearl also stated that he used the “newly produced data”
to conclude that “the current market share for Yardi Voyager in the Core Property Management
Systems market for Enterprise-level Conventional Multifamily property managers is over 65%.”
(Supplemental Expert Report of James R. Kearl, ¶ 9, ECF No. 461-9 at 7.) In reaching this
figure, Dr. Kearl stated that he updated exhibits from his previous reports using the “newly
produced data.” (Supplemental Expert Report of James R. Kearl, ¶ 5, ECF No. 461-9 at 7.)
Dr. Rausser also filed a supplemental report on February 8, 2019. In that report, he
argued that “no evidence justifies placing conventional multifamily residential management
software in a separate market from other property types.” (Supplemental Expert Report of
Gordon Rausser, ¶ 8, ECF No. 461-3 at 8.) He further provided that “[t]he updated yCRM data
establishes that a large portion of the companies tracked by Yardi operate across [multiple]
classes of housing, managing multiple property types. Dr. Kearl has done nothing to evaluate
how, or if, this influences their software purchasing decisions.” (Supplemental Expert Report of
Gordon Rausser, ¶ 8, ECF No. 461-3 at 9.) In support of these arguments, Dr. Rausser included
several tables that relied on late produced yCRM data. (Supplemental Expert Report of Gordon
Rausser, ¶¶ 10–14, ECF No. 461-3 at 10–13.) Dr. Rausser also included analysis of customer
revenues for “companies managing only conventional multifamily versus mixed-use . . . .”
(Supplemental Expert Report of Gordon Rausser, ¶ 14, ECF No. 461-3 at 13.)
Additionally, as he did in his August reply report, Dr. Rausser also criticized Dr. Kearl
for “limiting the market based on customer size.” (Supplemental Expert Report of Gordon
Rausser, ¶ 15, ECF No. 461-3 at 14.) Dr. Rausser argued that “[t]he updated yCRM data
reinforces,” his argument “by showing that 45% of currently active Voyager customers manage

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less than 1,000 units.” (Supplemental Expert Report of Gordon Rausser, ¶ 17, ECF No. 461-3 at
15 (emphasis in original).)
On February 14, 2019, Dr. Gregory Adams, an expert for Entrata submitted a declaration.
(ECF No. 458.) In this declaration, he explained that he had reviewed Dr. Rausser’s February 8,
2019 supplemental report. (ECF No. 458 at 2.) In this declaration, Dr. Adams addressed the
tables that Dr. Rausser relied on to argue that conventional multifamily residential management
software should not be placed in a separate market from other property types. Dr. Adams stated
that “Dr. Rausser did not include these tables . . . in any of his previous reports.” (ECF No. 462
at 4.) Dr. Adams also addressed Dr. Rausser’s analysis of customer revenues for companies
managing only conventional multifamily versus mixed use. Dr. Adams stated that “[t]hese
calculations rely on data in the recently produced Portfolio table of the yCRM data base.” (ECF
No. 462 at 4.) He also stated that “Dr. Rausser did not include these calculations . . . in any of his
previous reports.” (ECF No. 462 at 4.) Dr. Adams further states:
Upon initial review of the Rausser Supplemental Report and all associated work
product that has been produced to Entrata, I have found that the following
analyses are new (in that a similar analysis was not included in Dr. Rausser’s
previous reports) and that these new analyses (or a substantively similar analysis)
could have been performed by Dr. Rausser using data that were available prior to
his August 27, 2018 and December 7, 2018 reports . . . .
(ECF No. 462 at 3.) Dr. Adams supports his conclusion by a review table by table to
show that Dr. Rausser had available to him the data necessary to provide his opinions at
the time of his earlier reports.
At the March 4, 2019 hearing, Yardi’s counsel made several arguments in support
of Yardi’s position that Dr. Rausser’s supplemental report should not be stricken.
Yardi’s counsel argued that “Dr. Kearl did not analyze in any substantive way those
multi-family units in companies not categorized as multi-family [in] yCRM.” (ECF No. 549 at

7

66.) In other words, Yardi’s counsel argued that Dr. Kearl, in his February 8, 2019 supplemental
report, essentially only “talk[ed] about” the companies that Yardi had produced in its “May
production.” (ECF No. 549 at 71.) Yardi’s counsel argued that by only considering the
companies Yardi had disclosed in May, and “by not considering those November companies,”
Dr. Kearl reaches a conclusion regarding the core market share that—in Yardi’s view—is
inaccurate. (See ECF No. 549 at 76.) In contrast to Dr. Kearl, Yardi’s counsel argued that Dr.
Rausser “consider[ed] . . . multi-family units whether they were in companies designated as
multi-family by yCRM or multi-family units in companies that weren’t designated as multifamily by yCRM but still have multi-family units.” (ECF No. 549 at 75.) Yardi’s counsel argued
that Dr. Rausser, when considering the more complete set of data, concluded that Yardi has
“35.8 percent of the [core] market share.” (ECF No. 549 at 76.) Yardi’s counsel argued that
“striking the reports and only allowing counsel cross-examination on these fairly complex
points” would not be adequate to allow the jury to fully understand this information. (See ECF
No. 549 at 78.)
Yardi’s counsel also addressed the “prior system information” contained in
PORTFOLIO2. Yardi’s counsel acknowledged that Entrata was “correct to point out that” the
prior data “wasn’t produced,” initially, and that Yardi had only “produced the current system
[data] but not the prior system [data].” (ECF No. 549 at 72.) But he argued that Yardi “produced
that information in December,” Yardi analyzed it, and so did Entrata. (ECF No. 549 at 73.) And
Yardi’s counsel argued that this data “is not some smoking gun piece of material” that supports
Entrata’s position. (ECF No. 549 at 63.) He argued that “if it is looked at, [it] supports [Yardi’s]
position about [there] being a lot of switching.” (ECF No. 549 at 63.) Regarding the switching
data, he argued that Dr. Rausser considered approximately 5,000 companies while Dr. Kearl only

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considered 440. (See ECF No. 549 at 73.) He further argued that when “you consider the full
switching data,” it is “actually in Yardi’s favor.” (ECF No. 549 at 74.)
Yardi’s counsel also discussed what he believed would be an appropriate sanction. He
argued that Entrata “be able to submit any supplemental report they want,” and that Yardi
“would pay for it.” (ECF No. 549 at 70.) He also suggested that Yardi would pay for the fees
Entrata incurred in with deposing Dr. Rausser about the yCRM data.8 (See ECF No. 549 at 71.)
In response, Entrata’s counsel addressed Yardi’s argument that Dr. Kearl only addresses
some, but not all, of the relevant data in his supplemental report. Entrata’s counsel argued that
“[e]very point that” Yardi’s counsel made today, “they can do that on cross [examination].”
(ECF No. 549 at 84.)
On March 5, 2019, Yardi filed a submission in which it stated that it “intend[ed] to
submit a detailed response” to the “accusations and voluminous written submissions” that
Entrata made at the March 4, 2019 hearing. (See ECF No. 502 at 2.) On March 6, 2019, Entrata
filed a response to Yardi’s submission. (ECF No. 505.) In this response, Entrata argued that
“[t]he Court should not allow Yardi to continue to vexatiously delay and multiply these
proceedings with further misleading filings, as it has indicated it intends to do . . . .” (ECF No.
505 at 11 (emphasis in original).) Entrata also argued that it “deserves all its fees and costs since
September 30, 2017 and any other relief and sanctions the Court deems appropriate.” (ECF No.
505 at 11.) On March 8, 2019, Yardi filed a Response to Entrata’s Response. (ECF No. 510.) In
this filing, Yardi stated that it “plans to respond in more detail to the arguments Entrata made at”
the March 4 hearing “once it has the opportunity to review the hearing transcript.” (ECF No. 510
at 3.) Yardi also “respectfully request[ed] that if the Court plans to consider action on issues

Yardi’s counsel also stated that Yardi “would consider the Giles deposition as well if that is what the court orders,
obviously.” (ECF No. 549 at 80.)
8

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outside of Entrata’s Motion to strike,” in Yardi’s view, issues outside of striking Yardi’s
Supplemental Reply Reports, that the court “allow full and fair briefing on the specific issues the
Court wants addressed.” (ECF No. 510 at 3.)
Analysis
As the court noted in its previous order, “[f]ederal courts have very broad discretion to
exercise their inherent powers to sanction a full range of litigation misconduct that abuses the
judicial process.” Xyngular Corp. v. Schenkel, 200 F. Supp. 3d 1273, 1300–01 (D. Utah 2016)
(citation omitted). “These inherent powers are not governed by any rule or statute.” Id. “They are
instead ‘necessarily vested in courts to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.’” Id. (citation omitted). “Within this discretion lies the power to
exclude or admit expert testimony . . . whose use at trial is in bad faith or would unfairly
prejudice an opposing party.” See Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir.
1980) (citations omitted).
The court previously found that “Yardi ha[d] repeatedly acted in bad faith in delaying the
production of the yCRM data.” (ECF No. 492 at 24.) The court also found that sanctions were
warranted for Yardi’s misconduct. (ECF No. 492 at 25.) The court held oral argument to
determine “what sanctions would be appropriate under the circumstances.” (ECF No. 492 at 26.)
The court stated it was concerned about the practical effects that striking Yardi’s expert reports
could have at trial. (ECF No. 492 at 25.) After hearing from the parties, the court concludes that
striking Dr. Rausser’s supplemental expert report is a necessary and appropriate sanction for
Yardi’s misconduct in delaying the production of its yCRM data.
As initial matter, the court explicitly finds that the late-produced yCRM data should have
been turned over to Entrata without court intervention. It is undisputed that the late-produced

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data contained in PORTFOLIO2 is relevant to the experts’ analyses regarding switching. And is
undisputed that Yardi now relies on the data contained in the “niche” portfolios to determine
market share. Yardi was in possession of this data but refused to turn it over. Entrata was forced
twice seek relief from the court to obtain this data.
Entrata should have had access to this relevant data prior the submission of its initial
expert reports. Instead, Entrata was forced to make do with the data it had available to it. (See
ECF No. 461-21 at 33 n. 127 (“Yardi has produced some of the data upon which the [Top
Companies Reports] are based (the ‘yCRM’ data) although that production does not appear
complete. Thus, at this time I rely on the historical TCRs (from 2016 and 2017).”).) Yardi’s
untimely production prejudiced Entrata by depriving Entrata of a full opportunity to review all
relevant data from the outset.
In his August Reply, Dr. Rausser argued that “Dr. Kearl’s proposed accounting platform
market is . . . artificially restricted by proposing that property managers of at least 1,000 units
purchase their software in a separate relevant market from those who manage less than 1,000
units.” (Expert Reply Report of Gordon Rausser, ¶ 12 ECF No. 461-16 at 11 (emphasis in
original).) In his February 8, 2019 supplemental report, Dr. Rausser used the late produced data
to bolster this argument. (See Supplemental Expert Report of Gordon Rausser, ¶ 17, ECF No.
461-3 at 15 (emphasis in original).) Dr. Rausser could have made this argument in August if he
had requested from Yardi all of the relevant data. Moreover, as supported by the declarations
submitted by Entrata in support of its Motion to Strike Dr. Rausser’s supplemental report, much
of the data Dr. Rausser relies upon was available and could have been used in his August 2018
report if he had believed it important to his analysis.

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Additionally, Dr. Rausser criticized Dr. Kearl by arguing that “no evidence justifies
placing conventional multifamily residential management software in a separate market from
other property types.” (See Supplemental Expert Report of Gordon Rausser, ECF No. 461-3 at
8.) The court finds that Dr. Rausser’s arguments in this section of his supplemental report
constitute new argument relating to market theory. Yardi’s counsel effectively conceded as much
at oral argument. (See ECF No. 549 at 92.9) These arguments could and should have been
disclosed earlier. Dr. Rausser effectively denied Dr. Kearl the opportunity to respond to those
criticisms in formulating the opinions he would offer at trial. Again, Dr. Rausser could have
made this argument in his August report if he had chosen to do so and if Yardi had provided him
with all of the relevant data.
Dr. Rausser, in making new arguments in his supplemental reply report, and bolstering
old arguments using some of the most relevant—and previously available data—has prejudiced
Entrata. Yardi should have made these arguments in August, and Entrata should have been able
to reply to these arguments in December. The court finds that Entrata is prejudiced by Yardi’s
sandbagging.
Yardi argues that Entrata should “be able to submit any supplemental report they want,”
and that Yardi “would pay for it.” (ECF No. 549 at 70.) Yardi would also pay for the fees Entrata
incurred by deposing Dr. Rausser about the yCRM data. (See ECF No. 549 at 71.) Entrata argues
that this is not “a sanction at all.” (ECF No. 549 at 81.) Entrata argues that “[t]hat just says we
continue on as if it is a regular case and regular expert discovery and we get to respond.” (ECF
No. 549.) The court agrees with Entrata.

“Dr. Rausser makes the observation in those paragraphs 8 through 14, well these, all these companies with may
different housing types how come no one has analyzed how that affects their software purchasing decisions? That—
that is something somewhat different that what has been discussed before.” (emphasis added).
9

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If the court were to adopt Yardi’s proposed sanction, Yardi would be placed in the same
position it would be in if it had disclosed the relevant yCRM data from the outset as required by
numerous requests and court orders. This would reward Yardi’s misconduct and could encourage
other parties in future cases to engage in the same risk calculus. Stronger sanctions are required
to deter this type of behavior. The court strikes Dr. Rausser’s supplemental expert report, (ECF
No. 461-3). The court is concerned, however, that the jury in this case should be allowed to
consider all of the evidence relevant to the determination it will be required to make. The jury is
also entitled to hear appropriate challenges to Dr. Kearl’s analysis and opinions, including
whether he failed to consider relevant data that may impact or raise questions about his
conclusions. Cross-examination is the appropriate vehicle to test Dr. Kearl’s opinions. At trial,
Yardi will be allowed to cross-examine Dr. Kearl regarding his supplemental report and any
deficiencies in his analysis. Such cross-examination may include all data, including yCRM data,
to which Dr. Kearl had access at the time he issued his February 8, 2019 supplemental report.
Conclusion
I.

As a sanction for Yardi’s repeated bad faith in delaying the production of the yCRM
data, Dr. Rausser’s February 8, 2019 expert report is stricken. Dr. Rausser may rely
upon opinions and data fairly disclosed in his August 2018 Reply Report.

II.

Entrata argues that it “deserves all its fees and costs since September 30, 2017 . . . .”
(ECF No. 505 at 11.)
a. If Entrata seeks its fees and costs since September 30, 2017, it is respectfully
instructed to submit a Motion for Further Monetary Sanctions on or before April
12, 2019. The Motion must be supported by appropriate declarations, schedules,
and billing invoices.

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b. If Entrata submits a Motion for Further Sanctions, Yardi may submit any
Opposition on or before April 26, 2019.
c. If Yardi submits an Opposition, Entrata it may submit a Reply on or before May
3, 2019.
III.

At oral argument, Yardi was only given “approximately 30 minutes to respond” to
Entrata’s arguments. (ECF No. 502 at 2.) Yardi’s counsel’s arguments largely
focused on Dr. Rausser but not Mr. Hoffman. The court declines to rule on Entrata’s
Motion regarding Mr. Hoffman at this time. Yardi, on or before April 12, 2019, is
granted to leave to submit supplemental briefing addressing whether striking Mr.
Hoffman’s report is an appropriate sanction. This submission must not exceed 2,500
words, or in the alternative, ten (10) pages.

DATED this 28th day of March, 2019.
BY THE COURT:

_______________________
Clark Waddoups
United States District Judge

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