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Excel Fortress Ltd. v. Verl Wilhelm

United States District Court, D. Arizona

January 7, 2019

Excel Fortress Limited, et al., Plaintiffs,
Vaughn La Verl Wilhelm, et al., Defendants.




         This trade secrets case was filed in April 2017. At first, Plaintiffs expressed a desire to litigate the case aggressively and requested an expedited discovery schedule to accomplish this goal. As a result, the Court set Plaintiffs' expert-disclosure deadline as November 2, 2018. The scheduling order provided that “[e]xpert reports . . . must set forth ‘the testimony the witness is expected to present during direct examination, together with the reasons therefor.' Full and complete disclosures of such testimony are required on or before the dates set forth above; absent truly extraordinary circumstances, parties will not be permitted to supplement their expert reports after these dates.” (Doc. 55 at 2.)

         In early 2018, after serving a set of overbroad discovery requests on Defendants, Plaintiffs effectively stopped litigating this case. They didn't retain a devulcanization expert, even though this is “the issue at the very heart of this case” (Doc. 87 at 2), and didn't seek judicial intervention after Defendants declined to answer many of their discovery requests on overbreadth grounds. Months and months passed with little to no action.

         Finally, during the two weeks preceding the November 2, 2018 expert-disclosure deadline, there was a burst of activity. During this period, Plaintiffs (1) raised a belated objection to the discovery responses that Defendants had provided 255 days earlier (Doc. 83) and (2) asked for the case to be consolidated with a different case in which the discovery deadlines hadn't elapsed (Doc. 79). Additionally, on the afternoon of November 2, 2018, Plaintiffs (1) filed a motion seeking an extension of the expert-disclosure deadline (Docs. 87, 88) and (2) provided a bare-bones expert disclosure to Defendants (Doc. 92-1). Although this one-and-a-half-page document identified two devulcanization experts by name, it didn't purport to summarize their opinions and conclusions and didn't provide any written reports from them. (Doc. 92-1 at 3-4.)[1] Plaintiffs acknowledged this disclosure was “incomplete” but argued that Defendants were to blame, because they hadn't responded to the discovery requests propounded earlier that year. (Id.)

         On November 20, 2018, the Court issued an order resolving many of these issues. (Doc. 100.) Among other things, the Court concluded that (1) essentially all of Plaintiffs' discovery requests were overbroad, and Defendants were therefore justified in declining to respond to them (id. at 4-9), (2) the expert-disclosure deadline would not be changed, because “Plaintiffs were not diligent in pursuing discovery and . . . ‘good cause' therefore does not exist to amend the scheduling order to extend the expert-disclosure deadline” (id. at 9-10), and (3) the consolidation request would be denied, because “the expert-disclosure deadline has already passed” and consolidation “would thus work to the detriment of . . . [the] defendants in the Trade Secrets case-it would increase their litigation costs and significantly delay their case's resolution” (id. at 10-11).

         There are now three additional matters pending before the Court. First, Defendants have moved to strike the expert disclosures that Plaintiffs provided on November 2, 2018. (Doc. 92.) Second, Plaintiffs have moved to compel Defendants to supplement their responses to the revised discovery requests that Plaintiffs propounded after the Court determined the initial requests were overbroad. (Doc. 113.) Third, the parties have asked the Court to determine whether Dr. Li is a managing agent of Defendants, and thus may be required to sit for a deposition, or whether Dr. Li is a mere consultant who may submit an affidavit in lieu of being deposed. (Doc. 114.)

         As explained below, the Court will deny the motion to strike (although the denial is without prejudice as to two of the three experts), deny Plaintiffs' request to compel Defendants to provide additional responses to their latest batch of discovery requests, and deny Plaintiffs' request to require Defendants to produce Dr. Li for a deposition.


         I. The Motion to Strike Plaintiffs' Experts

         Plaintiffs provided their expert disclosure to Defendants on November 2, 2018. (Doc. 92-1.) The disclosure identifies three experts: (1) Dr. Jinzhu Yang, who is identified as “a Chinese lawyer”; (2) Dr. Jacques Noordermeer, “an expert in rubber devulcanization”; and (3) Michael Kumbalek, “an internal expert in rubber compounds and properties.” (Doc. 92-1 at 3.) With respect to Dr. Yang, Plaintiffs also provided a report that summarizes his opinions and conclusions. (Doc. 92-1 at 7-11.) No. reports were provided for Dr. Noordermeer or Mr. Kumbalek. In addition, the notice does not attempt to summarize either expert's conclusions and opinions:

Without having any information regarding Defendants' rubber devulcanization efforts related to Plaintiffs' trade secret claims, Plaintiffs' rubber devulcanization experts . . . have not been able to prepare any opinions and conclusions (and a report to the extent required) regarding the similarities between Defendants' products and services and those of Plaintiffs. The disclosure is therefore incomplete and made without prejudice to Plaintiffs' ability to supplement.

(Doc. 92-1 at 3.)

         In their motion to strike, Defendants ask the Court to strike all three experts. (Doc. 92.) First, Defendants argue the disclosure concerning Dr. Yang is improper because his expert report “provide[s] both legal conclusions and the application of the law to the facts.” (Doc. 92 at 4.) Second, Defendants argue the disclosure concerning Dr. Noordermeer is deficient because “it is not accompanied by an expert report.” (Id. at 5.) Third, Defendants argue the disclosure concerning Mr. Kumbalek is deficient because Plaintiffs only provided “the general subject matter of which Mr. Kumbalek is expected to testify, ” not “a summary of the facts and opinions to which [he] is expected to testify.” (Id.)

         In their response, Plaintiffs argue that Dr. Yang should be permitted to testify because he “will be able to assist the Court with regard to potential foreign law issues, ” which is permissible under Federal Rule of Civil Procedure 44.1. (Doc. 107 at 3-4.) Moreover, Plaintiffs argue that Defendants' motion to strike is premature as to Dr. Yang because the motion is “based on the proposed substance of his testimony.” (Id. at 4-5.) With regard to Dr. Noordermeer and Mr. Kumbalek, Plaintiffs do not contend their disclosures were proper; rather, Plaintiffs argue they should be permitted to supplement these disclosures after Defendants respond to their discovery requests. (Id. at 5-9.) Finally, ...

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