You have heard that in presenting this case, Cyntegra did not preserve certain materials that IDEXX alleges relate to its defense against Cyntegra's claims. Where evidence that would properly be part of a case is within the control of, or available to, the party whose interest it would naturally be to produce it, and that party fails to do so without a satisfactory explanation, the inference may be drawn that, if produced, such evidence would be unfavorable to that party, which it the case with Cyntegra.
*8 Dr. Mody was unable to prepare a report at this time, due to the lack of timely production by IDEXX Laboratories, Inc. of documents including financial information, until last Friday, July 27, 2007, continuing through today, the end of discovery.
I was retained by counsel for plaintiff to: 1) identify the relevant product market; 2) assess the size of Defendant IDEXX Laboratories, Inc.'s (“Defendant”) market share in that defined market; 3) assess the market conditions “but-for” Defendant's alleged anti-competitive conduct of Defendant. I have also been retained to review and comment on Defendant's expert's economic analysis and arguments, including any expert reports.
a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
A party that without substantial justification fails to disclose information required by Rule 26(a) ... is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure, these sanctions may include any of the actions authorized under Rule 37(b)(2)(A), (B), and (C) and may include informing the jury of the failure to make the disclosure.
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