East West, LLC v. Rahman et al
Filing
186
MEMORANDUM OPINION re Plaintiff's MOTION to Strike the August 16, 2012 "Supplemental" Expert Report of Defendants' Expert Jonathan A. Cunitz, D.B.A.. Signed by District Judge James C. Cacheris on 9/17/12. (klau, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
EAST WEST, LLC d/b/a
CARIBBEAN CRESCENT,
)
)
)
Plaintiff,
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)
v.
) 1:11cv1380 (JCC/TCB)
)
SHAH RAHMAN,
)
)
and
)
)
CARIBBEAN CRESCENT, INC.
)
)
Defendants.
)
)
)
)
CARIBBEAN CRESCENT, INC.,
)
)
)
Counterclaimant and Third-Party Plaintiff, )
)
)
)
)
v.
)
)
)
)
EAST WEST, LLC, d/b/a
)
)
CARIBBEAN CRESCENT,
)
)
)
)
Counter-Defendant,
)
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and
)
)
NAEEM ZAI,
)
)
and
)
)
MOHAMMED SADIQ,
)
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Third-Party Defendants.
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)
1
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Plaintiff’s Motion to
Strike the August 16, 2012 “Supplemental” Expert Report of
Defedants’ Expert Jonathan A. Cunitz [Dkt. 141] (the “Motion”).
For the following reasons, this Court will grant the Motion.
I. Background
A. Factual Background
Plaintiff East West, LLC (“East West”) sells food products
including Jamaican and south Asian spices and halal meat and
fish in the Washington, D.C. metropolitan area and surrounding
communities.
¶ 2.)
(Supplemental Amended Complaint (“SAC”) [Dkt. 59]
On June 11, 2003, East West and Third Party Defendants
Naeem Zai and Mohammad Sadiq, who are East West’s President and
Vice President, respectively, (collectively, the “Buyers”)
entered into an “Agreement for Sale of Inventory/Assets” (the
“Sale Agreement”) with Defendants in which they agreed to
purchase the business assets known as Caribbean Crescent.
¶ 13; Ex. A (“Sale Agreement”) at 1.)
(SAC
Defendants agreed to
deliver to the Buyers all rights, title, and interest in the
business assets known as Caribbean Crescent including the common
law trademark CARIBBEAN CRESCENT (“the CARIBBEAN CRESCENT Mark”
or “the Mark”) and the trade name Caribbean Crescent.
17-18, 21; Sale Agreement § 1.)
2
(SAC ¶¶
The Sale Agreement contained a non-compete provision (the
“Non-Compete Agreement”), in which Defendants agreed not to
compete with the business being sold to the Buyers for a period
of five years and within a five mile radius of the Washington
Metropolitan Area.
(Sale Agreement § 21.)
Defendants were
entitled to “use [the] Carribean Crescent [as opposed to
Caribbean Crescent] trade name,” and to “continue [to] trade and
market products and services as Carribean Crescent [as opposed
to Caribbean Crescent] outside the Washington Metropolitan
Area.”
(Id.)
On June 17, 2003, the parties closed on the Sale Agreement.
(SAC ¶ 34.)
The Buyers purchased the business assets known as
Caribbean Crescent as well as Defendants’ remaining inventory of
goods.
(SAC ¶¶ 31, 36.)
The Buyers paid $225,918 and executed
a promissory note in the amount of $215,918 in furtherance of
the Sale Agreement.
(SAC ¶ 40; Settlement Agreement.)
The
Buyers satisfied the amount due under the promissory note over a
period of approximately two and a half years.
(SAC ¶ 47.)
The parties executed an Articles of Sale and Transfer, also
on June 17, 2003, in which CCI transferred all of the assets of
Caribbean Crescent, including the trade name Caribbean Crescent
and the CARIBBEAN CRESCENT Mark to East West.
D.)
(SAC ¶ 44; Ex.
That same day, the parties entered into a Financing
Statement in which CCI was the Secured Party and Buyers were the
3
Debtor, and which covered all “Goodwill, the tradename
‘CARRIBEAN CRESCENT’ [sic] and all derivatives thereof; customer
lists; and telephone numbers.”
(SAC ¶ 45; Ex. E.)
The Buyers
thereupon began using the trade name Caribbean Crescent and the
CARIBBEAN CRESCENT Mark, and East West began doing business as
Caribbean Crescent.
(SAC ¶¶ 48-50.)
On February 23, 2004, East West and CCI entered into a
Commission Agreement, which provided that East West would handle
all sales of Defendants’ Jamaican patties product in the
Washington Metro Area.
(SAC ¶¶ 55-56; Ex. I.)
East West was
entitled to a twenty percent commission for such sales.
(Id.)
The Commission Agreement also established a five percent
commission to be paid by East West to CCI for all sales of East
West’s products made by Rahman.
(SAC ¶ 57.)
East West alleges
that Defendants have never paid any commissions on any of the
sales made pursuant to the Commission Agreement.
(SAC ¶ 59.)
Defendants allegedly violated the Non-Compete Agreement and
the sale and assignment of the trade name Caribbean Crescent by
competing against East West and using the trade name Caribbean
Crescent within a five-mile radius of the Washington Metro Area
“sometime between June 17, 2003 and June 16, 2008.”
60, 62.)
(SAC ¶¶
Defendants also allegedly began using the CARIBBEAN
CRESCENT Mark “sometime shortly after” the sale and assignment
of the Mark to East West.
(SAC ¶ 64.)
4
East West alleges, on
information and belief, that a number of the products sold by
Defendants under the trade name Caribbean Crescent and bearing
the CARIBBEAN CRESCENT Mark were first introduced into the
market in June or July of 2011.
(SAC ¶¶ 61, 63.)
On or about February 20, 2008, Defendants allegedly filed a
trademark application with the United States Patent and
Trademark Office for the CARIBBEAN CRESCENT Mark, despite having
sold and assigned the Mark to East West over four years earlier.
(SAC ¶¶ 65-66.)
Defendants allegedly made various fraudulent
statements regarding their purported ownership and use of the
CARIBBEAN CRESCENT Mark in filing and prosecuting the trademark
application.
(SAC ¶¶ 66-70.)
The PTO ultimately accepted the
trademark application and registered the CARIBBEAN CRESCENT
Mark.
(SAC ¶ 79.)
On or about October 30, 2008, Rahman sent a facsimile to
East West claiming ownership of the CARIBBEAN CRESCENT Mark.
(SAC ¶ 71.)
Rahman sent two subsequent facsimiles to East West
in which he expressed a desire to clear up their
misunderstandings.
(SAC ¶¶ 72-73; Exs. N, O.)
On December 15,
2008, East West sent a letter by counsel to Rahman asserting
that it had purchased all of CCI’s assets, including the trade
name Caribbean Crescent.
(SAC ¶ 74; Ex. P.)
In January 2009, Rahman advised Zai that Rahman’s father,
who was terminally ill with cancer, wished to meet with him to
5
help resolve the problems between the parties.
(SAC ¶ 75.)
February 2009, Sadiq and Zai visited Rahman’s father.
77.)
Rahman was also present.
(Id.)
In
(SAC ¶
At that time, Rahman’s
father allegedly stated that Rahman had not honored the
agreements between the parties but that he would from that point
on.
(Id.)
Rahman himself allegedly agreed to honor the
parties’ agreements as well.
(Id.)
In February or March of 2011, Defendants hired a former
employee of East West named Ishmael Amin.
(SAC ¶ 82.)
According to East West, Amin had knowledge of its customers, its
business methods, and “other ‘company sensitive’ information.”
(Id.)
Much of this information was valuable, not known outside
of its business, was protected, and would be difficult, if not
impossible, for Defendants to acquire or duplicate.
(SAC ¶ 83.)
Defendants have allegedly obtained proprietary information and
knowledge of East West’s business relationships through Amin.
(SAC ¶¶ 85, 88.)
East West alleges that Defendants have begun
to interfere with East West’s business relationships and to use
its proprietary information.
(SAC ¶¶ 86-87.)
In June or July of 2011, Rahman approached Zai and Sadiq
with new products displaying the trade name Caribbean Crescent
and the CARIBBEAN CRESCENT Mark and asked if East West would
sell those products in the Washington Metropolitan Area.
80.)
(SAC ¶
When Zai and Sadiq refused, Rahman informed them that he
6
would proceed to sell the products using a different
distributor.
(Id.)
East West asserts that this was the point
in time at which it “lost all hope” that Defendants would honor
the parties’ agreements despite the assurances previously made
by Rahman.
(Id.)
B. Procedural History
On March 19, 2012, the parties to this action filed a Joint
Discovery Plan.
[Dkt. 25.] The deadline for serving all initial
expert reports was set on May 17.
All rebuttal reports were to
be served by June 13.
On April 4, Magistrate Judge
[Dkt. 26.]
Theresa Buchanan approved the parties’ Joint Discovery Plan in
this case.
[Dkt. 36.]
On June 5, Defendant filed a Motion to
Extend Discovery Deadlines to File Expert Rebuttal Report. [Dkt.
71.]
On June 6, Defendants filed their Opposition to
Plaintiff’s Motion for Extension of Time.
[Dkt. 75.]
On June
8, Magistrate Judge Buchanan granted Defendants Motion, setting
the new deadline as June 27.
Plaintiff was allowed to depose
Defendants’ expert until July 11. [Dkt. 83]
On June 25, the
parties entered a Joint Motion to Continue the Remaining Dates
of Scheduling Order.
[Dkt. 94.]
On June 26, Magistrate Judge
Buchanan entered an order granting the parties’ Joint Motion to
Continue.
All dispositive and Daubert motions were to be filed
by August 1, with responsive briefs due by August 15 and
rebuttal briefs due by August 27.
7
All Rule 26(a)(3) pretrial
disclosures were to be filed and served by September 4, with
objections due by September 7.
[Dkt. 96.]
Magistrate Judge
Buchanan also cautioned that there would be no more extensions
of time.
On August 1, Defendants filed a Motion to Exclude the
Testimony of Plaintiff’s Damages Expert Michael Einhorn, Ph.D.
[Dkt. 119.]
On the same day, Defendants filed a Memorandum in
Support of their Motion to Exclude the Testimony of Plaintiff’s
Damages Expert Michael Einhorn, Ph.D. [Dkt. 111.]
They also
filed a Motion to Seal Exhibits to Seal Exhibits to Declaration
of Katie Bukrinsky in Support of Defendants’ Motion to Exclude
the Testimony of Plaintiff’s Damages Expert Michael Einhorn,
Ph.D. [Dkt. 109.]
On August 15, Plaintiff filed their
Opposition to Defendants’ Motion to Exclude.
[Dkt. 137.]
On
August 24, Plaintiff filed a Motion to Strike the August 16,
2012 "Supplemental" Expert Report of Defendants' Expert Jonathan
A. Cunitz, D.B.A. [Dkt. 140.]
Support.
[Dkt. 141.]
They also filed a Memorandum in
On August 29, Defendants filed their
Opposition to Plaintiff’s Motion to Strike.
[Dkt. 157.]
II. Standard of Review
The imposition of discovery sanctions is reviewed for abuse
of discretion. See Nelson-Salabes, Inc. v. Morningside Dev.,
LLC, 284 F.3d 505, 513 n. 10 (4th Cir.2002); see also Yeti by
Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th
8
Cir.2001) (“[W]e give particularly wide latitude to the district
court's discretion to issue sanctions under Rule 37(c)(1).”).
III. Analysis
In essence, Plaintiff takes issue with the timeliness and
the manner of Defendants’ production of expert reports in this
case, as well as the content that Defendants’ expert most recent
report contains.
A.
Arguments of the Parties
According to Plaintiff, Defendants produced less than 2,000
pages of discovery prior to the initial May 17, 2012 due date
for expert reports.
Plaintiff’s Initial Expert Report on
Damages (“Plaintiff’s Initial Report”) was served on the same
day.
Since that date, Defendants have produced an additional
31,000 pages of discovery.
Consequently, Plaintiff served a
Supplemental Expert Report on Damages (“Plaintiff’s Supplemental
Report”) based upon the new production on July 27, 2012.
The
Plaintiff’s Supplemental Report was filed eight days after
Defendants’ July 19, 2012 document production. Both Plaintiff’s
Initial Report and Plaintiff’s Supplemental Report were written
by Plaintiff’s expert Dr. Michael Einhorn.
Defendants’ First Expert Report (“Defendants’ First
Report”) was served on June 27, 2012. On August 16, Defendants
served a “Supplemental” Expert Report (“Defendants’
‘Supplemental’ Report”).
Both reports were written by
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Defendants’ expert of Dr. Jonathan A. Cunitz, D.B.A. Service of
Defendant’s “Supplemental” Report took place more than two weeks
after the due date for Daubert and dispositive motions.
Plaintiff argues that Defendant’s “Supplemental” Report
contains wholly new analysis and expert opinions that were
absent from Defendant’s Initial Report.
Rather than having been
based on information that recently became available to
Defendants, Plaintiff asserts that Defendants’ “Supplemental”
Report is based upon information that Defendants’ expert
possessed and had reviewed by “at least June 27, 2012 – i.e.,
nearly two months before Defendants’ [Supplemental] Report was
served.”
(Pl. Mem. 2.)
Plaintiff objects to the inclusion of this new information
and believes that any argument by Defendants to characterize
their “Supplemental” Report as merely supplemental in nature
would be “disingenuous for at least two significant reasons.”
(Id.)
First, Plaintiff objects to the content of Defendants’
“Supplemental” Report as including new material that was not
present in Defendants’ First Report.
Plaintiff has itemized
content from Defendants’ “Supplemental” Report that was not
present in Defendants’ First Report and believes that
“comparison of the two documents will readily show the
differences between them.”
(Id.)
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As Defendants did not obey
the Scheduling Order by failing to disclose this information by
June 27, 2012, Plaintiff believes that the Court should strike
Defendants’ “Supplemental” Report entirely.
(Id. at 3.)
Additionally, Plaintiff objects to the manner in which
Defendants’ possession of the allegedly undisclosed information
adversely affected discovery in this case.
Plaintiff asserts
that at some point prior to the June 27, 2012 service of
Defendants’ “Supplemental” Report, Dr. Cunitz reviewed and had
access to the nearly 31,000 pages of documentary material that
is the basis for the allegedly new information contained in the
“Supplemental” Report.
As a consequence, Plaintiff decries the
disparity this created in discovery.
“In other words,
Plaintiff’s Initial Report is based on about 6% of the pages
eventually produced by Defendants’ Supplemental Report is based
on almost 93% of the pages eventually produced by Defendants.
(Id. at 3-4)(emphasis in original).
Plaintiff believes they had
a right to serve Plaintiff’s Supplemental Report after the
additional information became available.
Conversely, Plaintiff
asserts that Defendants had no right to serve Defendants’
“Supplemental” Report because “Defendants’ expert had reviewed
the information nearly two months ago and they made a tactical
decision not to include the information in Defendants’ rebuttal
report.”
Plaintiff considers this a violation of their
obligations under Fed. R. Civ. P. 26(a)(2)(B)(i).
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Plaintiff
further asserts that the access Dr. Cunitz had to Defendants to
gather any additional information he needed for his report
further compounded this this inequity.
Consequently, Plaintiff
believes should strike Defendants’ “Supplemental” Report
entirely under Rule 16(f).
In their Opposition, Defendants dispute Plaintiff’s
characterization of Defendants’ “Supplemental” Report as a new
report that contains substantially new material, accusing
Plaintiff of the same behavior in filing Plaintiff’s
Supplemental Report that they now criticize.
(Def. Opp. 2.)
Defendants do not think such information may be rightly said to
be “new” rather than “supplemental,” and assert that their
“Supplemental” Report was simply filed to rebut Plaintiff’s
Supplemental Report, and that Plaintiff was aware that
Defendants would file such a rebuttal.
Similarly, regarding Plaintiff’s contention that
Defendants’ “Supplemental” Report was untimely, Defendants
accuse Plaintiff of engaging in substantively similar behavior
with regard to untimeliness, stating “Plaintiff itself offered a
supplemental report for its expert on July 27, 2012, more than
two months after the parties agreed to serve initial expert
reports.”
(Id.)
Defendants further assert that the parties
never agreed to a schedule as to supplemental reports.
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(Id.)
Defendants assert that, based upon the communications
between the parties, that Plaintiff cannot be surprised by
Defendants’ “Supplemental” Report.
To the extent that Plaintiff
is surprised, Defendants assert that such surprise may be cured
by deposing Dr. Cunitz.
(Def. Opp. 8-9.)
Defendant states that
the analysis that Dr. Cunitz provides in his “Supplemental”
Report directly rebuts Plaintiff’s Supplemental Report and the
damages calculations contained therein. (Id. at 10.)
Defendant
also assures the Court that their expert’s opinions will not
disrupt trial.
(Id. at 9.)
B. Legal Framework
Rule 26(e)(2) of the Federal Rules of Civil Procedure
provides that:
For an expert whose report must be disclosed
under Rule 26(a)(2)(B), the party's duty to
supplement extends both to information
included in the report and to information
given during the expert's deposition. Any
additions or changes to this information
must be disclosed by the time the party's
pretrial disclosures under Rule 26(a)(3) are
due.
Fed.R.Civ.P. 26(e)(2).
Rule 37(c)(1) pertains to failures
to make disclosures or cooperate in discovery, and states that
“[i]f a party fails to [timely] provide information ... 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
13
justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The court has
“broad discretion” to determine whether an untimely disclosure
is substantially justified or harmless. See, e.g., S. States
Rack & Fixture, Inc. v. Sherwin–Williams Co., 318 F.3d 592, 597
(4th Cir. 2003). In determining whether to exclude untimely
expert disclosures, courts are to consider five factors:
(1) the surprise to the party against whom
the evidence would be offered; (2) the
ability of that party to cure the surprise;
(3) the extent to which allowing the
evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing party's explanation for its
failure to disclose the evidence.
Id.
Furthermore, the court has broad discretion to select the
appropriate remedy in light of the totality of the
circumstances.
Id. at 595; Fed.R.Civ.P. 37(c)(1).
Plaintiff asserts that “[m]otions to strike expert reports for
containing new material in this circuit are ‘properly considered
under Rule 16(f), not Rule 37(c)(1).’"
(Pl. Mem. 7)(quoting
Luma Corp. v. Stryker., 226 F.R.D. 536, 541-42 (S.D. W. Va.
2005).
Rule 16(f) pertains to sanctions and specifically speaks
to noncompliance with a scheduling order or pretrial order.
section specific relevance to the instant Motion, Rule
16(f)(1)(c) reads:
(1) In General. On motion or on its own, the
court may issue any just orders, including
those authorized by Rule 37(b)(2)(A)(ii)–
(vii), if a party or its attorney: [...]
14
The
(c) fails to obey a scheduling or other
pretrial order.
Fed. R. Civ. P. 16(f)(1)(c).
Among the remedies available to
the Court is the option of striking the new material.
In
analyzing whether exclusion is an appropriate remedy, the Court
should consider the following factors:
(1) the surprise to the party against whom
the evidence would be offered; (2) the
ability of that party to cure the surprise;
(3) the extent to which allowing the
evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing party's explanation for its
failure to disclose the evidence.
Luma Corp., 226 F.R.D. at 543-44 (citation omitted).
Defendants consider the practical difference between Rule
16(f) and Rule 37(c) to be largely semantic under the
circumstances, although they assert that Rule 16(f) is
inapplicable because, as there was no deadline for submitting
supplemental reports, Defendants have not violated a scheduling
order pursuant to Rule 16(f)(1)(c). (Def. Opp. 6 at n.1.)
However, the test cited by the Defendants under Southern States
Rack & Fixture, Inc., 318 F. 597, for purposes of Rule 37(c)
exclusion analysis, is a verbatim recitation of the test cited
by the Plaintiff.
Fed.R.Civ.P. 37(c)(1) states that when “a
party fails to provide information or identify a witness as
required by [Fed.R.Civ.P.] 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence on
15
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).
A party has a clear obligation to disclose and supplement
expert witness information in a timely fashion, “[b]ut this duty
does not permit a party to make an end-run around the normal
timetable for conducting discovery.” Colony Apartments v. Abacus
Project Mgmt., Inc., 197 Fed. App'x 217, 231 (4th Cir.2006).
“Courts distinguish true supplementation (e.g., correcting
inadvertent errors or omissions) from gamesmanship, and have
therefore repeatedly rejected attempts to avert summary judgment
by supplementing an expert report with a new and improved expert
report.”
Gallagher v. Southern Source Packaging, LLC, 568
F.Supp.2d 624, 631 (E.D.N.C.2008). This court must first
determine whether the defendant's supplemental disclosures were
“true supplementation” rather than “gamesmanship and delay.” Id.
If Defendants’ supplemental disclosures were “true
supplementation” then they may have been timely pursuant to Rule
26(a)(3). If, however, these disclosures were not “true
supplementation” then the court has the discretion, as pursuant
to Rule 37(c)(1), to exclude these disclosures. See Southern
States Rack and Fixture, Inc. v. Sherwin–Williams Co., 318 F.3d
592, 695–96 (4th Cir.2003).
This Court finds that, despite Defendants’ characterization
of the instant report as supplementation, the document contains
16
new information and expert opinion, intended both as an
expansion of their earlier expert report as well as a means to
impermissibly broaden the scope of the expert opinions that
Defendants seek to admit.
Given the new content of the report,
it cannot be fairly said to be based solely upon the discovery
of new information.
Consequently, the instant report cannot be
considered “true supplementation.”
The report is, considered in
a most generous light, a new rebuttal to Dr. Einhorn’s report,
containing new information, new issues, and new expert analysis.
The Court considers the submission of such a report
inappropriate at this late juncture, and the Court does not find
particularly convincing the argument that the report is based
upon newly discovered information.
This argument is even less
compelling when the allegedly new information was produced by
the Defendants themselves.
Defendants filed their initial
expert report in late June and, to be sure, Defendants have
already been granted one Motion for Extension of Time [Dkt. 83]
to file a rebuttal expert report.
Defendants’ “Supplemental”
Report should have been served well before the exceedingly late
date of August 16, 2012, and the Court has not been apprised of
their justification for filing such material so close to the
scheduled trial date.
Characterizing the instant report as
“supplementation” does not give Defendants free reign to file
expert reports, rebuttal or otherwise, until the last moment
17
before trial.
Although Defendants argue that the Court has
allowed Plaintiff to file a supplemental report, Defendants did
not file an objection to that report based upon untimeliness.
Having found Defendants’ report to have been untimely, this
Court will apply the five-fold factors in order to discern a
remedy. Applying the first factor of the test promulgated in
Luma Corp. and Southern States, this Court finds that there was
indeed surprise to the Plaintiff, as the Defendants were already
granted an earlier extension of time in which to file a rebuttal
report, which entailed an accompanying deadline by which
Defendants’ expert should have been deposed.
Simply giving
notice to Plaintiff that Defendants intend “produce a
Supplemental Report” does not necessarily put the Plaintiff on
notice that this report will contain new opinions and analysis
of the sort that are contained in Defendants’ “Supplemental”
Report.
The mere fact that Defendants’ First Report does not
state all of the opinions it would now like to admit does not
give them free reign to submit those opinions under the guise of
supplementation, and it certainly does not mean that the Court
must now admit them.
Applying the second factor, this Court
finds that the solution that Defendants propose to cure the
surprise is unacceptable.
This Court will not allow additional
depositions or extensions of time.
It was Defendants’ choice to
file expert reports so perilously close to trial, having already
18
been the beneficiary of numerous time extensions related to
discovery.
The Court will not place itself or the parties in
such a position so close to the scheduled trial date, and the
court is unwilling to modify the trial calendar.
As to the
third Luma Corp. factor, the extent to which allowing the
evidence would disrupt the trial, allowing this evidence would
require, in order to avoid prejudice to the Plaintiff, the Court
to reopen discovery in order to allow the Plaintiff to conduct
additional deposition of Defendants’ expert.
This Court
reiterates that it will not alter the trial schedule at this
late juncture.
Applying the fourth factor, the report at issue
contains material that serves to rebut expert reports submitted
on behalf of Plaintiff.
Consequently, this Court ascribes to
the evidence a significant degree of importance to the instant
action.
Applying the fifth factor, the Defendants have not
provided an explanation for their failure to disclose the
instant report.
To be sure, they have argued that supplemental
reports were not subject to any deadline.
The mere fact that
supplemental reports were not subject to any express deadline
does not imply that the parties must be allowed to file expert
reports at any time prior to the very day of trial simply by
characterizing such reports as supplemental.
Regardless,
Defendants’ “Supplemental” Report does not qualify as true
“supplementation.”
Consequently, the Court has not been
19
apprised of Defendants’ explanation for filing their expert
report so close to the scheduled trial date in this case.
Considering the five-fold factors in toto, this Court is left
with no other choice but to strike Defendants’ “Supplemental”
Report.
IV. Conclusion
For the foregoing reasons, this Court will grant
Plaintiff’s Motion to Strike the “Supplemental” Expert Report of
Jonathan A. Cunitz, D.B.A.
An appropriate Order will issue.
September 17, 2012
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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