United States District Court, D. Arizona
ORDER
Dominic W. Lanza United States District Judge
INTRODUCTION
Pending
before the Court is Maricopa County's motion for
reconsideration of an earlier order denying its motion to
preclude testimony from Office Depot's expert. (Doc.
206.) For the following reasons, the motion for
reconsideration will be denied.
RELEVANT
BACKGROUND
On June
28, 2019, Maricopa County filed a motion to preclude Office
Depot's expert, Patrick Krivoshia, from offering the
opinion that, under the CCSF contract, Maricopa County would
have received an across-the-board discount of 20% on
purchases before February 13, 2007 and an across-the-board
discount of 5% on purchases after that date. (Doc. 171.)
Specifically, Maricopa County argued that, because these 20%
and 5% figures had “no basis in reality, ”
Krivoshia's opinions were not “based upon
sufficient facts or data” as required by Rule 702.
(Id.)
On
October 4, 2019, the Court heard oral argument on an array of
pretrial motions, including Maricopa County's motion to
preclude Krivoshia. (Doc. 205 [transcript].) During that
hearing, Office Depot's counsel argued that Krivoshia had
“specifically identifie[d], ” in his expert
report, a particular set of pricing data (known as the
“MC-OD9” data set) that provided the foundation
for his 5% and 20% figures. (Id. at 69. See also
Id. at 78-79 [Office Depot's confirmation that the
MC-OD9 data set provides the factual foundation for
Krivoshia's opinion].) In response, the Court asked both
parties why they hadn't submitted that data set as an
attachment to their respective briefs. Maricopa County's
explanation was that “we didn't include it because
[we] think it has no bearing to the issue that [Krivoshia]
claimed his opinions were covering, the actual prices paid .
. . .” (Id. at 85.) Office Depot, meanwhile,
stated that “while we're happy to provide it to
you, the reason that we didn't attach it to our brief is
that it is literally thousands and thousands of lines of
structured data. And given that there was no challenge to the
substance of it, as we understood Maricopa's challenge,
we didn't think it was relevant.” (Id. at
89.)
On
October 9, 2019, the Court issued a 48-page order that
resolved an array of different motions in limine, expert
preclusion motions, and other motions filed by the parties.
(Doc. 203.) As for Maricopa County's motion concerning
Krivoshia, the Court concluded it should be denied because
Krivoshia's expert report stated that the MC-OD9 data set
“provided factual support for his decision to
apply” the challenged discounts and “[t]hese
references suggest Krivoshia wasn't simply making up the
5% and 20% figures . . . and instead was grounding his
opinions in historical pricing data.” (Id. at
33.) The Court did note it was “odd” that neither
party had submitted the actual MC-OD9 data set as part of the
briefing process but concluded that, because “Krivoshia
asserted in his report that a particular data set provides
the factual foundation for his opinions and Maricopa County
hasn't shown this assertion is inaccurate, ” the
proper outcome was to allow Krivoshia to testify and then
allow Maricopa County to challenge his assumptions through
cross-examination. (Id. at 33-34.)
On
October 23, 2019, Maricopa County filed a motion to
reconsider the denial of its motion to preclude
Krivoshia's opinions. (Doc. 206.) In support of the
motion, Maricopa County provided a copy of the actual MC-OD9
data set-which, contrary to the representations made by
Office Depot's counsel during oral argument, is less than
one page long. (Doc. 206 at 8.)
On
October 24, 2019, Office Depot filed a notice of errata
acknowledging that counsel's statements during oral
argument concerning the size of the MC-OD9 data set were
inaccurate. (Doc. 210.) This notice also explained why
counsel had a good-faith belief in the accuracy of the
statements at the time they were made. (Id.)
On
October 25, 2019, the Court issued an order that, inter
alia, “fully accept[ed] Office Depot's
explanation that the misstatements during the hearing were
made in good faith” but ordered Office Depot to file a
substantive response to the reconsideration motion. (Doc. 211
at 1-3.)
On November 4, 2019, Office Depot filed its response. (Doc.
212.)
On November 12, 2019, Maricopa County filed a reply. (Doc.
216.)
ANALYSIS
Maricopa
County argues that reconsideration is warranted because (1)
Office Depot made new arguments during the October 4, 2019
oral argument that “misled the Court into an erroneous
ruling” and (2) the MC-OD9 data set “applied only
to purchases of certain non-stock items by two of the many
CCSF departments, ” and the prices for these items were
negotiated on an ad hoc basis, so the analytical gap
between the MC-OD9 data set and Krivoshia's opinions is
too significant to pass muster under Rule 702. (Doc. 206;
Doc. 216.) In response, Office Depot argues that (1) a motion
for reconsideration is an inappropriate vehicle for advancing
such arguments because Maricopa County was aware of the
MC-OD9 data set when it filed its original exclusion motion
and (2) on the merits, the MC-OD9 data set adequately
...