Brightview Grp. v. Teeters
Brightview Grp. v. Teeters
2020 WL 8257751 (D. Md. 2020)
June 10, 2020
Boardman, Deborah L., United States Magistrate Judge
Summary
The court denied the defendants' motions to strike the plaintiff's expert disclosure, finding that it satisfied Rule 26(a)(2)(B). The court also set deadlines for document production, fact discovery, expert depositions, requests for admission, and dispositive pretrial motions and Daubert motions. The plaintiff was also allowed to serve an amended, final expert report, but only with respect to lost profits, head start damages, and saved costs of development.
RE: Brightview Group, LP
v.
Teeters
v.
Teeters
No. SAG-19-2774
United States District Court, D. Maryland
Filed June 10, 2020
Counsel
Mark Spencer Saudek, Collin J. Wojciechowski, Joseph C. Dugan, Gallagher Evelius and Jones LLP, Baltimore, MD, for Brightview Group, LP.Jonathan P. Kagan, Michael J. Marinello, Kagan Stern Marinello & Beard, LLC, Annapolis, MD, Mark Andrew Gilday, Christine Elizabeth Sindall, Bregman Berbert Schwartz and Gilday LLC, Bethesda, MD, for Andrew M. Teeters, Ross T. Dingman.
Edward M. Buxbaum, David Michael Stevens, Timothy Willman, Whiteford Taylor and Preston LLP, Baltimore, MD, Edward E. Sharkey, Law Offices of Edward E. Sharkey LLC, Mark Andrew Gilday, Christine Elizabeth Sindall, Bregman Berbert Schwartz and Gilday LLC, Bethesda, MD, for Monarch Communities LLC.
Boardman, Deborah L., United States Magistrate Judge
LETTER ORDER
*1 Dear Counsel,
This letter order memorializes the discovery call held yesterday regarding the defendants’ motions to strike plaintiff's disclosure of expert testimony and report, ECF Nos. 130, 131. Plaintiff filed an opposition, ECF No. 135, and defendants filed a reply, ECF No. 138. A hearing is not necessary. See Loc. R. 105.6. Defendants’ motions are denied for the reasons stated on the call and further discussed in this letter order.
Defendants ask to strike plaintiff's expert disclosure and expert testimony of Marylee P. Robinson, CPA, because they claim her report does not contain opinions on the value of the intellectual property at issue and does not sufficiently identify the damages plaintiff allegedly suffered from defendants’ misappropriation of trade secrets and other tort offenses. After the motions to strike were filed but before plaintiff's opposition was filed, plaintiff served on defendants a supplemental expert report in which Ms. Robinson added to her damage calculations. The defendants do not dispute that the supplemental report cures some of the alleged deficiencies identified in their motions, but they insist that the report remains insufficient under Rule 26(a)(2)(B) because Ms. Robinson does not provide her own damages calculations or methodology and merely relies on Brightview's calculations. Defendants contend that their expert cannot respond to the deficient supplemental report. To remedy this perceived deficiency, defendants ask the Court to strike Ms. Robinson's report and testimony pursuant to Rule 37(c)(1), which provides for sanctions for failure to comply with Rule 26(a)(2)(B). Plaintiff responds that its expert disclosure satisfies Rule 26(a)(2)(B), that it needs additional fact discovery to complete the report with respect to three types of damages, and that Rule 37(c)(1) does not provide grounds to strike the report. I agree with plaintiff.
Rule 26(a)(2)(B) requires that a party disclosing an expert witness provide a written report that includes, inter alia, “(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them.” Fed. R. Civ. P. 26(a)(2)(B). The disclosure must be made by the date set in the scheduling order governing the case, and “[a]ny 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); see Fed. R. Civ. P. 26(a)(2)(D).
Rule 37(c)(1) provides for sanctions for failure to comply with Rule 26(a)(2)(B). Specifically, it states: “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.” Fed. R. Civ. P. 37(c)(1); see also Boyd v. Armstrong, No. ELH-17-2849, 2019 WL 1440876, at *10 (D. Md. Mar. 29, 2019) (“[I]f a party fails to disclose a witness pursuant to 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 harmless.’ ”).
*2 Rule 37(c)(1) does not apply to these facts. This is not a situation in which Brightview has failed to provide information in an expert report and subsequently attempted to use the previously undisclosed information as evidence in support of a dispositive motion or at a hearing or trial. As the cases applying Rule 37(c)(1) indicate, courts have invoked the exclusionary sanction after a party has attempted to rely on evidence not previously disclosed in motions for summary judgment or at trial. See Carr v. Deeds, 453 F.3d 593, 599, 603 (4th Cir. 2006) (affirming district court's order excluding plaintiff's witness's testimony and opinions under Rule 37(c)(1) after defendants filed both the motion to exclude and a motion for summary judgment; noting that the district court granted the motion “more than one year after the expert disclosures were due under the scheduling order,” at which time “plaintiff had still failed to provide the information required under the rule”), called into question on other grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010); Arbogast v. Chesterton, No. JKB-14-4049, 2016 WL 2924022, at *3–4 (D. Md. May 18, 2016) (granting motion to exclude plaintiffs’ newly disclosed expert's opinions and testimony and motion for summary judgment; noting that discovery was supposed to be completed before dispositive motions were filed, and “the adequacy of [plaintiffs’] expert disclosures b[ore] directly on the disposition of th[e] motion [for summary judgment]”); Changzhou Kaidi Elec. Co. v. Okin Am., Inc., 112 F. Supp. 3d 330, 338 (D. Md. 2015) (ruling one week before trial that, pursuant to Rule 37(c)(1), the Court would “preclude testimony, evidence, and argument bearing on invalidity theories contained in Howard's report but not disclosed in Kaidi's invalidity contentions”). But see Boyd v. Armstrong, No. ELH-17-2849, 2019 WL 1440876, at *12 (D. Md. Mar. 29, 2019) (declining to exclude defendants’ expert report submitted three days late where the minimal delay did not cause prejudice to plaintiffs and “the ... expert reports contained all of the necessary information that the plaintiffs would need to file their rebuttal as to defendants’ Rule 26(a)(2) disclosure”).
Defendants’ issue with Ms. Robinson's report – that it does not contain a basis for her damages analysis or her methodology – is best addressed by way of a motion to exclude her testimony pursuant to Rule 702 of the Federal Rules of Evidence or a Daubert challenge or through a motion in limine to prevent or limit the admissibility of her testimony. Excluding Ms. Robinson's report and testimony, at this time and under these circumstances, is not warranted. Accordingly, defendants’ motions to strike plaintiff's disclosure of expert testimony and report is denied.
On the call, defendants raised a valid concern about the expert disclosure that should be addressed now. They need Ms. Robinson's final expert report before their expert can respond. I agree that plaintiff cannot continue to amend its expert report without justification, particularly because the deadline for plaintiff's expert disclosure has passed. During the call, Brightview's counsel stated that Brightview needs additional discovery on three specific areas of alleged damages – lost profits, head start damages, and saved costs of development – before Ms. Robinson can finalize her expert report. Brightview claims it attempted to obtain the information it needs through an interrogatory and that defendants did not respond as plaintiff had hoped or believed was accurate. Counsel apparently have attempted to resolve this matter among themselves for a significant period of time, which I appreciate. Brightview's counsel indicated that he anticipates Brightview can obtain the necessary additional discovery through deposition testimony, rather than an interrogatory. The depositions relevant to this issue are scheduled to occur on or before July 6. To allow plaintiff's expert time to review deposition transcripts and amend her report, I will give Brightview two weeks from July 6 to serve her final expert report. It may be amended only as to the three areas of damages for which Brightview claims it needs additional discovery: lost profits, head start damages, and saved costs of development.
During the call, I learned that Brightview has not yet completed its document production. Brightview filed a timely response to the defendants’ request for production of documents and produced some but not all responsive documents. Rule 34 provides that “[f]or each item or category” of documents requested by the opposing party, if “[t]he responding party ... state[s] that it will produce copies of documents or of electronically stored information instead of permitting inspection[,] [t]he production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.” Fed. R. Civ. P. 34(b)(2)(B). Brightview's counsel stated that the email review is in progress and indicated the remaining documents would be produced this month.
*3 After consultation with counsel and considering the need to adjust the expert discovery deadlines, the following deadlines shall apply to this case:
• Plaintiff shall produce all outstanding documents by June 23, 2020;
• Fact discovery will close July 20, 2020;
• On or before July 20, 2020, Plaintiff may serve an amended, final expert report, but it may only be amended with respect to lost profits, head start damages, and saved costs of development;
• Defendants’ Rule 26(a)(2) disclosure in response to Ms. Robinson's expert report is due by August 17, 2020;
• Plaintiff's rebuttal Rule 26(a)(2) disclosure is due August 31, 2020;
• The parties must complete expert depositions and submit a status report by September 11, 2020;
• Requests for admission are due September 18, 2020; and
• Dispositive pretrial motions and Daubert motions are due October 5, 2020.
Although informal, this is an Order of the Court and shall be docketed as such.