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Zest IP Holdings, LLC v. Implant Direct Mfg., LLC

United States District Court, Ninth Circuit

December 17, 2013

ZEST IP HOLDINGS, LLC, et al., Plaintiffs,
v.
IMPLANT DIRECT MFG., LLC, et al., Defendants.

ORDER GRANTING MOTION TO STRIKE THE JOINT EXPERT REPORT OF SCOTT D. HAMPTON AND BRUCE G. SILVERMAN PURSUANT TO RULE 37(c)

WILLIAM V. GALLO, Magistrate Judge.

Plaintiffs Zest IP Holdings ("Plaintiffs") have made a Motion To Strike The Joint Expert Report Of Scott D. Hampton And Bruce G. Silverman Pursuant To Rule 37(c) ("Motion"). Defendants Implant Direct Mfg. ("Defendants") have filed an Opposition to the Motion. Plaintiffs have filed a Reply to Defendants' Opposition. The Court, having reviewed the moving, opposition, reply papers, the record in this case, and GOOD CAUSE APPEARING, HEREBY GRANTS Plaintiff's Motion.

I

FACTUAL BACKGROUND

On February 9, 2011, the Court issued a Case Management Conference Order Regulating Discovery And Other Pretrial Proceedings ("Feb. 9, 2011 Order"). The Feb. 9, 2011 Order states, inter alia:

On or before December 15, 2011, all parties shall exchange with all other parties a list of all expert witnesses expected to be called at trial... On or before December 29, 2011, any party may supplement its designation so long as that party has not previously retained an expert to testify on that subject. (Feb. 9, 2011 Order, at 7).

On December 15, 2011, Plaintiffs designated Susan McDonald. Ph.D. ("McDonald") to testify as an expert witness regarding their claims of trademark infringement in this case.

On December 29, 2011, Defendants designated Hal Poret ("Poret") to testify as an expert witness regarding Plaintiffs' claims of trademark infringement in this case.

On December 19, 2012, the Court issued a Sixth Amended Case Management Conference Order Regulating Discovery And Other Pretrial Proceedings ("Sixth Amd. CMC Order"), which states inter alia:

Each expert witness designated by a party shall prepare a written report to be provided to all other parties no later than January 22, 2013, containing the information required by Fed.R.Civ.P. 26(a)(2)(A) and (B).... Any party that fails to make these disclosures shall not, absent substantial justification be permitted to use evidence or testimony not disclosed at any hearing or at the time of trial. In addition, the Court may impose sanctions as permitted by Fed.R.Civ.P. 37(c).
Any party... shall in accordance with Fed.R.Civ.P. 26(a)(2)(C) and Fed.R.Civ.P. 26(e), supplement any of its expert reports regarding evidence intended solely to contradict or rebut evidence on the same subject matter identified in an expert report submitted by another party. Any such supplemental reports are due on February 11, 2013. (Sixth Amended Case Management Conference Order Regulating Discovery And Other Pretrial Proceedings, at 2)(emphasis in original).

On February 7 and 13, 2013, Defendants requested that Plaintiffs agree to extend the dates by which their supplemental expert reports regarding Plaintiffs' trade-mark infringement claims were due. Plaintiffs agreed to the requested extensions of the dates. Defendants did not seek the Court's approval of the extensions of dates about which Plaintiffs agreed

On February 21, 2013, Defendants requested for a third time that Plaintiffs agree to extend the date by which their supplemental expert reports regarding Plaintiffs' trademark infringement claims were due. At this time, and for the first time, Defendants informed Plaintiffs that Defendants were designating two new expert witnesses, Scott D. Hampton ("Hampton") and Bruce G. Silverman ("Silverman"). Defendants again did not seek the Court's approval for the requested extension of dates, nor did they seek the Court's approval to designate two new expert witnesses.

Also, at this time, Defendants acknowledged to Plaintiffs that Defendants decided to retain two new rebuttal experts regarding Plaintiffs' trademark infringement claims in place of Poret, after they read Plaintiffs' expert McDonald's expert report on Plaintiffs' trademark infringement claims. Defendants explained that they would not use Poret as an expert witness because: (1) McDonald's report did not rely on trademark surveys to support Plaintiffs' trademark infringement claims; and, (2) Poret could not opine on Plaintiffs' trademark infringement claims if the evidence upon which Plaintiffs rely to prove their trademark infringement claims is not trademark surveys.

Plaintiffs refused to grant Defendants' third request for extension of the date for when Defendants' supplemental expert report regarding Plaintiffs' trademark infringement claims were due. Defendants did not seek the ...


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