I. General Background

Plaintiff Deltona Transformer Corporation (“DTC”) asserted claims against Defendant The NOCO Company (“NOCO”) alleging trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a), the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq., and common law. (Doc. 1). Discovery in this case opened in April 2019, see Doc. 32, and the discovery period closed on June 15, 2020. See Doc. 36, at 1. In addition, the deadline for DTC to make its expert disclosures was extended to February 6, 2020, NOCO's deadline was extended to March 6, 2020, and DTC's rebuttal experts disclosure deadline was extended to March 31, 2020. (Doc. 64, at 6).

The discovery period in this case was hotly litigated, with both sides filing numerous discovery related motions and other documents. See, e.g., Docs. 49, 51, 61, 64, 67, 69-70, 77, 85, 91-92, 95-97, 118, 122-126, 136, 138. Discovery ultimately came to a conclusion, dispositive motions were filed and ruled upon, and a jury trial was held before the Hon. Carlos E. Mendoza, United States District Judge, on May 17-25, 2021. The jury reached a verdict in favor of DTC and against NOCO, with the jury awarding actual damages of $1,300,000.00, and punitive damages in the amount of $5,750,000.00. (Doc. 315, at 4; Doc. 317). The issue of disgorgement had previously been bifurcated (see Doc. 282, at 50), and Judge Mendoza has set this case for a one-day bench trial on disgorgement to be held on July 9, 2021. (Doc. 321).

DTC has represented that it intends to call only one witness at the disgorgement bench trial — its damages expert, Phillip Green. See Doc. 358, at 161; Doc. 362, at 8-9, 11-12. DTC identified Mr. Green as its damages expert early in this case, and it timely disclosed Mr. Green's first expert report on February 6, 2020. See Doc. 345, at 1. On April 30, 2021, more than 10 months after the close of discovery, DTC disclosed to NOCO a second, supplemental expert report from Mr. Green. (Id.). NOCO contends that the supplemental report is untimely, and “reflects that Mr. Green considered different data and reached new conclusions.” (Id.). As such, NOCO seeks to conduct a limited deposition of Mr. Green prior to the July 9, 2021 trial. (Id., at 2). DTC opposes the request (Doc. 365), and the motion has been referred to the undersigned for disposition. For the reasons discussed below, the motion is due to be denied.

II. Additional Facts Relevant to the Present Motion

Mr. Green produced his first expert report on the expert disclosure deadline, February 6, 2020. See Doc. 159-1; Doc. 161-1. In that report, Mr. Green rendered opinions both about the amount of actual damages DTC suffered — which took the form of corrective advertising costs — and on the amount of NOCO's profits that could be attributed to NOCO's alleged infringement of DTC's trademarks (which would be relevant to the issue of disgorgement). (Doc. 159-1); see also Doc. 269, at 15-19. As it pertained to NOCO's profits, Mr. Green opined, based on the information he had been provided to date, that NOCO profited from its alleged infringement of DTC's trademarks to the tune of $18.9 million in sales. See, e.g., Doc. 159-1, at 4, 10; Doc. 161, at 5; Doc. 345, at 3. The report specifically noted that Mr. Green had not been provided all of NOCO's financial and sales data for all relevant battery charger sales, and that if such information was later provided, Mr. Green would update his calculations as appropriate. (Doc. 161-1, ¶ 49).

*2 A few weeks prior to the June 15, 2020 close of discovery, DTC moved to compel NOCO to produce financial documents in response to various discovery requests. (Doc. 77). Following briefing and a hearing on the matter, the undersigned ordered NOCO to “produce all sales data for battery chargers from January 1, 2014 through the present.” (Doc. 138, at 4).[1] The production deadline was set for July 20, 2020, approximately one month after the close of discovery. (Id.). On August 11, 2020, DTC moved for sanctions against NOCO under Federal Rule of Civil Procedure 37(b)(2) based on NOCO's purported failure to produce the sales data the undersigned previously ordered NOCO to produce. (Doc. 180). The undersigned granted DTC's motion in part, and ordered, among other things, that an unredacted “Battery Tender Spreadsheet” be produced to DTC on or before November 6, 2020. (Doc. 202). However, the undersigned denied DTC's request for sanctions as it pertained to the production of NOCO's other sales and financial data, which apparently was produced in August 2020. (Id.).

While the parties’ disputes over the production of NOCO's financial and sales data remained pending, NOCO deposed Mr. Green on June 10, 2020, see Doc. 365, at 3, and on July 22, 2020 filed a Daubert motion seeking to exclude Mr. Green's expert testimony as to both categories of damages. (Docs. 159, 161). By order dated May 5, 2021, Judge Mendoza excluded Mr. Green's opinions relating to advertising costs, but declined to exclude Mr. Green's opinions relating to NOCO's profits. (Doc. 269, at 15-19).

On April 30, 2021, DTC produced to NOCO Mr. Green's supplemental expert report. (Doc. 345, at 1). The supplemental report utilized a time period of January 1, 2014 to present and analyzed the above-described additional financial and sales data provided by NOCO, as well as DTC's recently released 2020 year-end financial data. See id., at 2-3; Doc. 271, at 4. Using this additional information, Mr. Green updated his calculations as to both categories of damages and, as relevant to the present dispute, the supplemental report increased the amount of profits that NOCO received from its alleged infringement to $64.7 million. See Doc. 345, at 2-3. In an email dated May 4, 2021, NOCO represented to DTC its position that Mr. Green's supplemental report was both untimely and prejudicial, and informed DTC of its intention to file a motion to strike the supplemental report. (Doc. 271-1 at 2-3). In an email dated the same day, DTC offered to make Mr. Green available for a brief deposition “to ask questions relating to any information NOCO did not have prior to the first deposition.” (Id., at 2). NOCO declined DTC's offer and instead moved to strike Mr. Green's supplemental report. (Doc. 268).

NOCO's motion to strike was premised on three grounds: (1) the supplemental report was untimely as it was served nearly a year after discovery closed and is based on information that DTC possessed since the Fall of 2020; (2) the supplemental report was prejudicial to NOCO because it was produced approximately two weeks prior to jury trial, leaving NOCO with no time to depose Mr. Green, and allegedly expanded the time period and the number of products Mr. Green considered; and (3) NOCO speculated that the trial would be disrupted as NOCO might seek leave to address Mr. Green's new opinions. (Doc. 268). DTC opposed the motion to strike, arguing that the supplemental report was based solely on NOCO's own financial and sales data that at all times has been in NOCO's possession (as it pertained to disgorgement), the report did not expand the number of products at issue in this litigation, and DTC was merely providing a supplemental, updated report pursuant to Federal Rule of Civil Procedure 26(e). (Doc. 271).[2]

*3 Judge Mendoza considered NOCO's motion at the final pretrial conference held on May 11, 2021 and heard argument from both sides. (Docs. 277, 282). At no time — either in its motion to strike or during oral argument — did NOCO point to any information that was contained in Mr. Green's supplemental report as it pertained to disgorgement that NOCO claimed it did not have access to or was surprised by. To the contrary, NOCO's counsel conceded that all of the financial and sales information Mr. Green utilized in formulating his opinions on disgorgement came from NOCO and had been disclosed from NOCO to DTC no later than August 2020. (Doc. 282, at 52-53). Moreover, NOCO never argued — either in its motion to strike or during oral argument — that Mr. Green's methodologies had changed; instead, NOCO limited its complaints to Mr. Green's alleged expansion of the time period and number of battery tender products considered. After considering the parties’ arguments, Judge Mendoza denied the motion to strike, based on DTC's representation (which again NOCO did not contest) that “everything in that supplementation comes from discovery that was provided to [DTC] by the Defendant.” (Doc. 282, at 55-56). Judge Mendoza further noted that because the discovery flowed from NOCO, “it's a tough argument to make from the Defendant's perspective that they're being surprised in any way.” (Doc. 282, at 52); see also Doc. 322.

At the conclusion of the jury trial on May 25, 2021, Judge Mendoza scheduled the bench trial on the issue of disgorgement for July 9, 2021. (Docs. 313, 321). Nothing further occurred with respect to Mr. Green's supplemental report until three (3) weeks later, when NOCO filed the present motion. (Doc. 345).

III. Analysis

The undersigned first looks to the Federal Rules of Civil Procedure for guidance on resolving the present dispute. For example, Rule 30(a)(2)(A)(ii) provides that a court may grant leave for a second deposition of a person previously deposed. However, “ ‘[c]ourts generally disfavor repeat depositions,’ ” United States v. Stinson, Case No. 6:14-cv-1534-Orl-22TBS, 2016 WL 2784118, at *3 (M.D. Fla. May 13, 2016) (quoting Ast v. BNSF Ry. Co., No. 09-2519-EFM-DWB, 2011 WL 5080256, at *1-2 (D. Kan. Oct. 25, 2011)), and the granting of such leave must be consistent with Rule 26(b)(1) and (2). See Fed. R. Civ. P. 30(a)(2). Rule 26(b)(1) generally discusses the scope of discovery and the relevancy standard, and Rule 26(b)(2) discusses when a Court must limit discovery, such as when the information sought is cumulative or duplicative, or can be obtained from some other source that is more convenient. Fed. R. Civ. P. 26(b)(1), (2)(C). In particular, Rule 26(b)(2)(C)(ii) requires a court to limit discovery when “the party seeking discovery has had ample opportunity to obtain the information by discovery in the action.”

With respect to expert witnesses, Federal Rule of Civil Procedure 26 permits a party to “depose any person who has been identified as an expert whose opinions may be presented at trial,” and the deposition may be conducted “only after the report is provided.” Fed. R. Civ. P. 26(b)(4)(a). Rule 26(a)(2)(B)(i) provides that a written expert report must contain “a complete statement of all opinions the witness will express and the basis and reasons for them.” An expert witness has a duty to supplement his or her report “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). See also Goodbys Creek, LLC v. Arch Ins. Co., No. 3:07-cv-947-J-34HTS, 2009 WL 1139575, at *2 (M.D. Fla. Apr. 27, 2009) (“Rule 26(e) allows supplementation of expert reports only where a disclosing party learns that its information is incorrect or incomplete.... [A] report that suffers from a major omission cannot be cured by the use of supplementation.”) (internal citations and quotations omitted). Stated differently, Rule 26(e) “permits supplemental reports only for the narrow purpose of correcting inaccuracies or adding information that was not available at the time of the initial report.” Companhia Energetica Potiguar v. Caterpillar, Inc., No. 14-CV-24277, 2016 WL 3102225, at *6 (S.D. Fla. June 2, 2016) (quoting Minebea Co. Ltd. v. Papst, 231 F.R.D. 3, 6 (D.D.C. 2005)) (emphasis in original). Courts interpret these rules in light of the overarching proposition that “the expert witness discovery rules are designed to allow both sides in a case to prepare their cases adequately and to prevent surprise.” Reese v. Herbert, 527 F.3d 1253, 1266 (11th Cir. 2008).

*4 With these legal precepts in mind, and upon review of the parties’ filings and relevant procedural history to date, the undersigned finds that NOCO's motion to compel a second, limited deposition of Mr. Green is due to be denied for several reasons. First, the motion to compel is in large part a recitation of the arguments previously asserted by NOCO in the motion to strike — arguments which Judge Mendoza considered and rejected. Compare Doc. 345 with Doc. 268 and Doc. 282. Specifically, NOCO again raises the issue of the timing of Mr. Green's supplemental report and the specter of prejudice. However, NOCO has not moved for reconsideration of Judge Mendoza's prior ruling.[3] Even if the undersigned were to treat NOCO's motion to compel as a motion for reconsideration (which the undersigned is not), NOCO has not presented any new facts or legal authority which convinces the undersigned that a contrary ruling is appropriate, particularly when it is undisputed that the information Mr. Green utilized to update his disgorgement calculations came exclusively from NOCO itself.[4] And with respect to the request for an additional deposition, the undersigned is not persuaded that NOCO will suffer prejudice if it does not depose Mr. Green, for as Judge Mendoza previously noted, NOCO would be hard pressed to establish any surprise or prejudice when it has been in possession of the relevant financial and sales data all along.[5] See also Fed. R. Civ. P. 26(b)(2)(C)(ii) (limiting discovery where “the party seeking discovery has had ample opportunity to obtain the information by discovery in the action.”); Stinson, 2016 WL 2784118, at *3 (“The Court will not permit a second deposition for Defendant to obtain information that was available to him prior to the discovery cutoff....”).

Second, it is clear from a review of the record that what NOCO really wants is a third bite at the apple to cure the negative effects of its chosen litigation strategy. NOCO deposed Mr. Green on his initial expert report (at a time when NOCO was in possession of its own financial and sales data), and was previously offered the opportunity to depose Mr. Green again prior to the start of jury trial. NOCO declined that offer and instead unsuccessfully moved to strike the supplemental report in its entirety. Having failed at that effort and lost at jury trial, NOCO now seeks to have the Court force DTC to honor its previous offer. Notably, NOCO has not presented any legal authority that would support such a request. And NOCO's argument that “it was not necessary to depose [Mr. Green] between the Court's May 11, 2021 ruling on the Motion to Strike and the commencement of the jury trial on May 17, 2021” because Judge Mendoza excluded Mr. Green's opinions about actual damages (see Doc. 345 at 7-8) only supports the undersigned's finding that NOCO made a strategic decision, which did not work out in its favor. Mr. Green's supplemental report also contained his calculations and opinions about disgorgement, and as Judge Mendoza noted at the June 24, 2021 status conference, “[w]e're not going to reopen discovery. You're going to have to live with the decisions your prior counsel made.” (Doc. 362, at 14). NOCO had ample opportunity to depose Mr. Green at earlier stages in this case and will have to live with its chosen litigation strategy. See also Fed. R. Civ. P. 26(b)(2)(C)(ii); Doc. 36, at 4 (noting that discovery deadlines “will not be extended absent a showing of good cause.”) (citing Fed. R. Civ. P. 16(b)).

*5 Third, while NOCO makes much of the fact that Mr. Green's supplemental report was not disclosed until April 30, 2021 and contains new calculations, it is important to note what NOCO does not argue. NOCO does not argue that Mr. Green's methodologies have changed. Simply stating — without any support — that extending the time period and utilizing NOCO's financial and sales data to update calculations does not equate to new methodologies. See, e.g., Avco Corp. v. Turn and Bank Holdings, LLC, Case No. 4:12-CV-01313, 2020 WL 3412659, at *4 (M.D. Pa. June 22, 2020) (finding that supplemental expert report which reiterated a prior opinion utilizing new data not available at the time of the writing of the original report did not constitute a new opinion); Lincoln Rock, LLC v. City of Tampa, Case No. 8:15-cv-1374-T-30JSS, 2016 WL 6138653, at *7 (M.D. Fla. Oct. 21, 2016) (denying a motion to strike a late disclosed supplemental expert report that merely corrected inaccuracies in the prior report: “[t]hese corrections did not advance a new theory of damages, but instead corrected Dr. Fishkind's calculation under the method of calculating damages he espoused in his Initial Report.”); Speedfit LLC v. Woodway USA, Inc., CV 13-1276 (KAM) (AKT), 2019 WL 1429609, at * 4, *7 (E.D. N.Y. Mar. 28, 2019) (permitting a supplemental expert report that dealt with an update of plaintiff's previous damages calculations based on additional sales made while the litigation proceeded, but excluding supplemental expert opinions that related to new theories of damages). Cf. Bennett v. CSX Transp., Inc., Civil Action No. 1:05-CV-839-JEC, 2006 WL 5249702, at *8 (N.D. Ga. Sept. 19, 2006) (permitting a limited second expert deposition where the expert later expressed new opinions and plaintiff learned that other individuals may have assisted substantially in the preparation of the expert report). NOCO also does not dispute that the exclusive source of the information that Mr. Green utilized to update his disgorgement calculations came from NOCO itself, thereby removing any element of surprise. And notably absent from NOCO's motion is any representation that it will be unable to challenge Mr. Green's updated calculations through its own damages expert.[6] These glaring omissions undermine NOCO's assertions of prejudice.

IV. Conclusion

In summary, NOCO's motion to compel a limited deposition of Mr. Green is based on arguments previously rejected by the Presiding District Judge, fails to establish any prejudice that NOCO will suffer, and is a clear attempt by NOCO to have the Court undo the consequences of NOCO's prior litigation strategy. For these reasons, NOCO's Motion to Compel Deposition Testimony of Plaintiff's Damages Expert (Doc. 345) is DENIED. See Gen. Steel Domestic Sales, LLC v. Chumley, Civil Action No. 13-cv-00769-MSK-KMT, 2015 WL 3498780, at *3 (D. Colo. June 2, 2015) (denying request to strike supplemental expert report and request to depose the expert, and finding no prejudice where the supplemental report was based on newly acquired evidence and reflected updated financial data, and where the expert used the same general theory and methodology for calculation of damages in both his initial and supplemental reports).

DONE and ORDERED in Orlando, Florida on July 1, 2021.

The undersigned set a January 1, 2014 start date for the production of sales data based on the representations by counsel for both DTC and NOCO at the July 6, 2020 hearing that the relevant time period commenced January 1, 2014. See Doc. 140, at 19.

As previously noted, the supplemental report also contained DTC's most recent 2020 year-end financial data; however, that data was used to update Mr. Green's opinions concerning DTC's actual damages, which Judge Mendoza excluded from the case. See Doc. 269, at 15-19; Doc. 282, at 39.

NOCO's lone statement at the end of its motion that “[t]o the extent the Court is inclined to deny this Motion, NOCO would move the Court to reconsider its decision with regards to NOCO's Motion to Strike” is not a properly asserted motion for reconsideration. (Doc. 345, at 8).

NOCO makes two vague representations in its motion that allude to other evidence. First, NOCO states “to avoid any claim of waived arguments, and without revealing any confidential information, the Second Report also contains additional information and different conclusions in other areas, as well.” (Doc. 345, at 3, n. 1). The undersigned is at a loss as to what NOCO is referring to and will therefore give this statement no further consideration. Next, NOCO states that in the supplemental report, “Mr. Green considered additional information possessed by Plaintiff.” (Id., at 7, n. 2) (emphasis in original). Again, NOCO does not identify this additional information, and to the extent NOCO is referring to DTC's own year-end 2020 financial data, that information was utilized in Mr. Green's excluded opinions concerning DTC's actual damages. Since DTC's actual damages are not at issue at this stage in the case, this vague footnote will also be given no further consideration.

The two cases NOCO cites in support of its request are readily distinguishable and therefore unpersuasive. Engle v. Taco Bell of Am., Inc., No. 8:09-cv-2102-T-33TBM, 2011 WL 883639 (M.D. Fla. Mar. 14, 2011) addressed two expert reports (not supplemental reports). The first was admittedly untimely disclosed (90 days before trial), and the second admittedly failed to comply with the requirements of Rule 26(a)(2)(B) and was therefore incomplete. Neither situation exists in the present case — Mr. Green's first report was timely provided and his second report was a permissible supplemental report (which Judge Mendoza declined to strike, rejecting NOCO's claims of untimeliness), and NOCO does not contend that Mr. Green's supplemental report fails to comply with Rule 26(a)(2)(B). And Eitzen Chem. (USA) LLC v. Carib Petroleum, Case No. 10-23512-CIV-SEITZ/SIMONTON, 2011 WL 13213314 (S.D. Fla. Nov. 30, 2011) similarly addressed a situation where the plaintiffs failed to disclose whatsoever both their expert and the expert's report until more than a month after the expert disclosure deadline had expired. Neither decision addresses a situation similar to the present matter — where a supplemental report was disclosed after the close of discovery, or when the supplemental report is based entirely on evidence that was at all times in the possession of the party now seeking relief.

To the contrary, NOCO represents, via the attached declaration of its lead trial counsel Meredith M. Wilkes, that “NOCO's expert would be preparing a rebuttal report to Mr. Green's supplemental report, that she would be preparing new material to assist the trier of fact on the disgorgement issues that [NOCO] would be offering as exhibits and that [NOCO] would make [their expert] available for deposition in advance of trial.” (Doc. 345-1, at ¶ 20).