*1 This matter is before the Court on Defendant Farmer's Business Network, Inc. (“FBN”) and Joshua Sleper's Motion to Exclude from Evidence Late Produced or Late Identified Documents and Discovery Responses. (Doc. No. 387.) The Court held a hearing on the motion on December 17, 2021. (Doc. No. 427.) At the hearing, the Court ruled on part of the motion, granting in part and denying in part the dispute about errata sheets. (See id.) The Court took the remaining issues under advisement. This Order addresses the portion of the motion relating to Syngenta Seeds, LLC's (“Syngenta's”) late supplementation (on October 8, 2021 and October 29, 2021) of interrogatory answers.[1] For the reasons set forth below, Defendants’ motion is granted in part and denied in part.

As background, this lawsuit was filed on June 22, 2020. (Doc. No. 1.) The original Pretrial Scheduling Order issued on September 23, 2020. (Doc. No. 24.) An Amended Pretrial Scheduling Order issued on November 25, 2020, after FBN and Dr. Sleper were added to the case, resetting the deadlines. (Doc. No. 59 at 3 (stating “Defendants Sleper and Farmer's Business Network must make their initial disclosures under Fed. R. Civ. P. 25(a)(1) on or before December 9, 2020. Plaintiff Syngenta and Defendant Warner may supplement their initial disclosures by December 9, 2020”) (emphasis in original).) All parties were required provide a copy of their initial disclosure documents by January 6, 2021, to the extent they were in that party's possession and control. (Id.) The Amended Pretrial Scheduling Order set the deadline of June 30, 2021, for all written fact discovery to be completed.[2] (Id. at 5.) The Order also expressly reminded the parties of their continual obligation to supplement pursuant to Federal Rule of Civil Procedure 26(e): “All parties remain obligated to make supplemental disclosures in a timely manner as required by Rule 26(e).” (Id. at 3.)

*2 Federal Rule of Civil Procedure 26(e) provides:

Fed. R. Civ. P. 26(e)(1) (emphasis added).

Syngenta, without consulting with the other parties, and without seeking an amendment of the Court's pretrial scheduling order, served supplemental responses to various interrogatory answers on October 8, 2021 and October 29, 2021—approximately three months after the written fact discovery deadline closed on June 30, 2021, and after the close of fact discovery.[3] Defendants objected, and following a meet and confer, filed their motion to exclude.

At the hearing, Syngenta explained that it was not clear on how this Court might interpret Rule 26(e), so in an abundance of caution, Syngenta updated their interrogatory answers with information that was produced in discovery after Syngenta's last interrogatory answers were served. Syngenta's updates included references to deposition testimony, deposition exhibits, and other documents by Bates number. Syngenta concedes that all of the supplemental information added to its answers had been previously made known to Defendants during discovery.

Because all of the supplemental information added to Syngenta's answers had “been made known to the other parties during the discovery process,” Syngenta's supplemental answers do not qualify as Rule 26(e) material and Rule 26(e) is not a vehicle for allowing Syngenta's supplementation after the June 30, 2021 written discovery deadline expired. Nor did Syngenta attempt to amend the Pretrial Scheduling Order to extend the written discovery deadline to supplement written discovery. Accordingly, Syngenta's supplementation was not allowed and it must withdraw its supplemental answers to the interrogatories at issue (or the supplemental answers are otherwise stricken).[4] The Court, however, does not “exclude” such information from evidence, as was requested by Defendants; instead, the Court will have the supplementations provided in the interrogatory answers effectively erased. Syngenta must file a letter no later than January 17, 2022, attaching each of the supplemental sets of interrogatories that were subject to Defendants’ motion to exclude, stating that Syngenta formally withdraws each of the supplemental responses at issue.

*3 With that said, to avoid any disputes about the presentation of any party's answers to interrogatories in any future submissions to the Court, the Court also hereby orders that if any party submits another party's responses or answers to written discovery to the Court in connection with motion practice, the party must disclose in the accompanying declaration the date when the interrogatory answer was served and also reference whether it was served before or after the June 30, 2021 written discovery deadline.[5]

And finally, also for the purpose of providing clarification to avoid future disputes, the Court emphasizes that this Order in no way permits Syngenta to supplement the identification of Syngenta's alleged trade secrets. Such identification was required by disclosure and pursuant to the Court's Pretrial Scheduling Orders. (See, e.g., Doc. No. 59.) This Court's November 25, 2020 Amended Pretrial Scheduling Order set a date certain for Syngenta to identify completely its alleged trade secrets no later than December 21, 2020. (Doc. No. 59 at 4.) The Pretrial Scheduling Order noted that the identification of the asserted trade secret “may be amended as the case proceeds”; however, the Court required the parties to jointly propose a procedure for any amendment as discovery progressed and the joint proposal needed to be filed by January 6, 2021. (Id.) On January 6, 2021, the parties informed the Court that they were unable to agree on a joint proposal for amendment and they proposed separate amendments. (Doc. No. 76.) On January 19, 2021, after consideration of the parties’ proposals, the Court issued the following addendum to the Amended Pretrial Scheduling Order:

(Doc. No. 93 at 1.) Then, in a March 9, 2021 Order granting in part and denying in part FBN's Motion Regarding Plaintiff Syngenta Seeds, LLC's Violation of the Court's Amended Pretrial Scheduling Order (Doc. No. 108), the Court addressed Syngenta's identification of its trade secrets once more, stating the following:

(Doc. No. 164 at 4 (emphasis in original).) Thus, Syngenta is—and was—only permitted to amend its identification of alleged trade secrets pursuant to the Pretrial Scheduling Order, the Addendum, and in connection with the Court's March 19, 2021 Order as stated above. The Court's Order today does not extend or resurrect the deadline for Syngenta's identification of alleged trade secrets.

Based on the file, record, arguments of counsel, and submissions herein, and consistent with the above, IT IS HEREBY ORDERED that:

1. Defendant Farmer's Business Network, Inc. and Joshua Sleper's Motion to Exclude from Evidence Late Produced or Late Identified Documents and Discovery Responses (Doc. No. 387), to the extent the motion relates to Syngenta Seeds, LLC's late supplementation of interrogatory answers, the motion is GRANTED IN PART and DENIED IN PART.

2. The Court does not “exclude” the information provided in the supplementations from evidence as was requested by Defendants; instead, Syngenta must file a letter no later than January 17, 2022, attaching each of the supplemental sets of interrogatories that were subject to Defendants’ motion to exclude, stating that Syngenta formally withdraws each of the supplemental responses at issue.

3. If any party submits another party's responses or answers to written discovery to the Court in connection with future motion practice, the party must disclose in the accompanying declaration the date when the interrogatory answer was served and also reference whether it was served before or after the June 30, 2021 written discovery deadline.

4. This Order does not extend or resurrect the deadline for Syngenta's identification of alleged trade secrets.

The remaining issue regarding the “ten late-produced ‘damages’ documents” is addressed in a separate order.

The June 30, 2021 written fact discovery deadline was not extended pursuant to the Second, Third, Fourth, or Fifth Amended Pretrial Scheduling Orders. (See Doc. Nos. 201, 210, 225, 358.) In the Fourth Amended Pretrial Scheduling Order, issued on May 26, 2021, the Court set the deadline for all fact depositions to be completed no later than July 30, 2021. (Doc. No. 225 at 8.) The Court also required Plaintiff to identify its experts by July 16, 2021, and for Defendants to identify their experts by July 23, 2021. The expert reports, however, were due well after the deadline for all fact discovery to be completed – for Plaintiff the deadline was September 7, 2021 (later extended to October 15, 2021), and for Defendants the deadline was September 14, 2021 (later extended to October 22, 2021). (Doc. No. 225 at 9; Doc. No. 358 at 5.) As for rebuttal, Defendants were required to identify their rebuttal experts to Plaintiff's experts by September 14, 2021 (later extended to October 22, 2021), and rebuttal reports were due on October 7, 2021 (later extended to November 15, 2021). (Doc. No. 225 at 9; Doc. No. 358 at 5.) Plaintiff was required to identify rebuttal experts on September 20, 2021 (later extended to October 28, 2021) and written reports were to be served by October 14, 2021 (later extended to November 22, 2021). (Doc. No. 225 at 9; Doc. No. 358 at 6.) All expert discovery needed to be completed by November 15, 2021 (later extended to December 17, 2021). (Doc. No. 225 at 9; Doc. No. 358 at 6.)

The Court permitted some straggler discovery due to rulings on discovery motions. A production schedule, however, was set and carefully structured to ensure that all fact discovery was completed before any opening expert reports were due.

At the hearing, Syngenta did not object to this outcome, provided that it was not precluded from referring to the evidence that was made known to the parties during the fact discovery period but after Syngenta's answers to interrogatories were served. This Court's Order does not preclude Syngenta from pointing to such evidence. In fact, the parties agreed on the record at the hearing that Syngenta's withdrawal of the supplemental interrogatory answers at issue would not bar Syngenta from referring to the evidence of record in future motion practice or trial, unless there are other legal grounds to limit such use. The Court appreciates counsels’ agreement on this point. Therefore, to be clear, except as to the identification of Syngenta's alleged trade secrets as further delineated below, this Court's Order is not intended to bar Syngenta or any other party from using the additional information produced during fact discovery in future motion practice or trial.

Of course, the District Judge may modify this procedure by providing different instruction, directive, or order at any time. And the District Judge has full discretion as to how to present any interrogatory answers at trial.