Court Will Not Preclude Marketing Expert Witness From Testifying at Trial on the Basis of Untimely Disclosure
Posted on November 21, 2024 by Expert Witness Profiler
On May 20, 2020, Plaintiffs filed the complaint initiating this action against Defendants for allegedly conspiring to acquire Plaintiffs’ personal and private records from the California Department of Motor Vehicles for the purpose of sending them letters to solicit business in the form of legal representation for litigation against sellers of vehicles they had purchased.
Defendants filed a motion to exclude the testimony of Plaintiffs’ expert witness, Larry Londre at trial based on untimely disclosure and lack of qualifications.
Marketing Expert Witness
Larry Londre is a marketing executive and analyst with expertise in creating, applying and delivering marketing, advertising, media, business development, sales, brand integrity, collateral programs, and expert witnessing.
Since 2002, he has served as an expert witness and has been designated as an expert witness involving Marketing, Advertising, Trademark, Patent, Promotion, Breach of Contract, Unfair Competition, Custom and Practice, Lanham and Robinson-Patman Act Violations, and others.
Discussion by the Court
According to Plaintiffs, Defendants were first aware in March 2023 that Plaintiffs designated Londre as their expert when they concurrently filed his declaration in support of their opposition to Defendants’ first motion for summary judgment. Defendants were also made aware of Londre following the lifting of the stay of this case when Plaintiffs formally listed Londre as their expert witness in their supplemental disclosures made pursuant to Federal Rule of Civil Procedure 26 on February 26, 2024. Defendants do not dispute this timeline or the fact that they were aware of Plaintiffs’ designation of Londre, but they assert that these dates are not relevant because Londre’s expert report was not provided until March 14, 2024.
Plaintiffs learned for the first time that Defendants intended to move for exclusion of Londre’s testimony at trial because they believe Plaintiffs did not timely disclose Londre as their expert witness. Consequently, on that same day, Plaintiffs filed the pending motion for relief from the expert witness disclosure deadline, if necessary, to permit Londre to testify at trial notwithstanding Defendants’ assertion that he was not timely disclosed.
Plaintiffs asserted that their inadvertent failure to timely disclose Londre was excusable neglect under these circumstances given the confusion caused by the Court’s orders staying this case, lifting the stay, and modifying the schedule as to certain dates while remaining silent as to other dates, including the expert disclosures deadline. Plaintiffs also asserted that even under Defendants’ interpretation of the court’s orders, Plaintiffs’ disclosure on March 14, 2024 was only 66 days past the January 8, 2024 disclosure deadline and thus its late disclosure was harmless to Defendants, particularly because Defendants expressed no interest in deposing Londre or need for more time to prepare for trial in light of the late disclosure.
Analysis
Rule 26
The Court finds under the circumstances of this case that Plaintiffs’ disclosure of Londre two months late was harmless to Defendants. Federal Rule of Civil Procedure 37 provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”
Notably, in their opposition to Plaintiffs’ motion, Defendants did not identify any prejudice or harm that they contend they would face at trial as a result of receiving Londre’s expert report in March 2024 instead of January 2024. Defendants instead suggested that they were harmed in the context of their summary judgment motion, but that motion was denied in August 2024. Curiously, while that motion was under submission, Defendants did not file any motions for relief due to any such perceived harm, and even after the motion was denied, Defendants did not file any motions for reconsideration either. As noted above, Defendants also did not seek to take the deposition of Londre in the several months that passed after the March 14, 2024 disclosure. The Court is therefore not persuaded by Defendants conclusory assertion that Plaintiffs’ late disclosure of their expert witness was not harmless.
Rule 702
To the extent Defendants’ pending motion to exclude Londre’s testimony at trial is based on untimely disclosure, that motion will be denied by the Court. However, to the extent Defendants’ motion is based on the purported inadmissibility of Londre’s testimony pursuant to Federal Rule of Civil Procedure 702, that motion will also be denied by the Court, albeit without prejudice to Defendants filing an appropriate motion in limine to exclude Londre’s testimony on that basis—indeed, an issue Defendants should be better positioned to address after deposing Londre and probing his qualifications.
Held
The Court will grant Plaintiffs’ motion and will not preclude Londre from testifying at trial on the basis of untimely disclosure. As for next steps, the Court is not persuaded that Defendants have any actual interest in deposing Londre. Nevertheless, out of an abundance of caution, the Court will reopen expert discovery for a period of 60 days (equal to the approximate amount of time that Plaintiffs’ disclosures were made past the disclosure deadline) for the limited purpose of permitting Defendants to depose Londre.
Key Takeaway:
Defendants did not identify any prejudice or harm that they contend they would face at trial as a result of receiving Londre’s expert report in March 2024 instead of January 2024. They instead suggested that they were harmed in the context of their summary judgment motion, but that motion was denied in August 2024. Defendants also did not seek to take the deposition of Londre in the several months that passed after the March 14, 2024 disclosure.
Case Details:
| Case Caption: | Akkawi Et Al V. Sadr Et Al |
| Docket Number: | 2:20cv1034 |
| Court: | United States District Court, California Eastern |
| Order Date: | November 18, 2024 |
