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Maricopa, County v. Office Depot Inc.

United States District Court, D. Arizona

December 13, 2019

Maricopa County, et al., Plaintiff,
Office Depot Incorporated, Defendant.


          Dominic W. Lanza United States District Judge


         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.


         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.)


         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 ...

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