United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S UNTIMELY "SUPPLEMENTAL EXPERT REPORT OF THOMAS W. BRAGG"
SEAN F. COX, District Judge.
Defendants Compendia Bioscience, Inc. and Life Technologies Corporation (collectively Defendants) move to strike the "Supplemental Expert Report of Thomas W. Bragg" (supplemental Bragg report) served by Plaintiff Vasudeva Mahavisno (Plaintiff). (ECF ##63 (sealed) and 65 (unsealed).) The Court finds that the issues have been adequately presented in the parties briefs and that oral argument would not significantly aid the decisional process. ( See Local Rule 7.1(f)(2).) The Court therefore orders that the motion will be decided upon the briefs. For the reasons set forth below, the Court DENIES Defendants' motion to strike.
II. Facts and Procedural Background
This case involves Plaintiff's claims that Defendants' software products infringe his copyrighted software. (ECF #45.) In connection with these claims, both parties have retained software experts. The Court's Scheduling Order called for Plaintiff to serve an expert report on November 24, 2014, and for Defendants to serve an expert rebuttal report on December 23, 2014. (ECF #47.)
Plaintiff timely served the "Expert Report of Thomas W. Bragg" (original Bragg report) on November 24, 2014. Then, on December 12, 2014, and without notice, Plaintiff served the supplemental Bragg report.
The Court understands from the parties' briefing that both expert reports express the same opinion, namely, that Defendants' software products are copies and derivative works of Plaintiff's copyrighted software. ( See, e.g., pl.'s resp. br., ECF #66, at pp. 2-3.) The supplemental Bragg report is the product of "further analysis" of the same materials reviewed in the preparation of the original Bragg report. (Id. at p. 3) Compared to the original Bragg report, the supplemental Bragg report alleges "additional examples of source code similarity" between Defendants' software products and Plaintiff's copyrighted software. (Id. )
Plaintiff explains that the reason for his untimely service of the supplemental Bragg report is that his expert "did not have the time to include" his further analysis in the original Bragg report. According to Plaintiff, his expert "was short on time, " first, because of the volume of Defendants' source code, and second, because his expert's ability to draw on Plaintiff's knowledge was limited by Defendants' use of an "Attorney's Eyes Only" designation on their source code.
Due to its untimeliness, the supplemental Bragg report became the subject of the instant motion to strike. (ECF #65.) Defendants alternatively sought an extension of time on their expert rebuttal disclosure, so they could make it responsive to the supplemental Bragg report. (Id. ) Plaintiff agreed to the extension of time, but Defendants chose not to take advantage of this agreement. (ECF ##66 and 72.) Instead, Defendants made their expert rebuttal disclosure responsive to both the original Bragg report and the supplemental Bragg report, and timely served it on December 23, 2014. (ECF #67.) Having prepared and timely served a fully responsive expert rebuttal disclosure, Defendants withdrew their alternative request for an extension of time. (Id. )
III. Legal Standards
An expert's report must "be made at the time and in the sequence directed by the court." Fed.R.Civ.P. 26(a)(2)(D). Plaintiff concedes that he failed to timely serve the supplemental Bragg report under the Court's Scheduling Order. (ECF #66 at p. 4.) Plaintiff's Rule 26(a) failure invokes Rule 37(c)(1), which instructs that Plaintiff is not allowed to use the supplemental Bragg report "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). Plaintiff, as "the potentially sanctioned party, " has the burden of proving that his untimely service of the supplemental Bragg report is substantially justified or is harmless. See Roberts v. Galen of Va., Inc., 325 F.3d 776, 782 (6th Cir. 2003).
Both parties emphasize that the supplemental Bragg report is the product of Plaintiff's expert's further analysis of the same materials he reviewed for the original Bragg report. As such, the supplemental Bragg report is not based on new materials. Defendants argue that this demonstrates the lack of justification for Plaintiff's untimely service of the supplemental Bragg report. Plaintiff on the other hand argues that this, coupled with the ...