United States District Court, D. Arizona
Dominic W. Lanza, United Slates District Judge.
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.)
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
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.) 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.)
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).
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.)
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.
The Motion to Strike Plaintiffs' Experts
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.)
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.)
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, ...