United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION & ORDER
M. PARKER, MAGISTRATE JUDGE
Design Basics, LLC has moved to exclude defendants'
expert witness Karl Keidel because defendants violated the
court's case management scheduling order. (ECF Doc. No.
82) Although defendants did designate Karl Keidel as an
expert witness by the court's deadline, they failed to
produce a report, as required by the order and Fed.R.Civ.P.
26(a)(2)(B). Defendants oppose the motion to exclude. The
parties have consented to my jurisdiction.
motion to exclude defendants' expert as a sanction under
Rule 37 is not well taken and will be DENIED.
Design Basics, Inc., is a building design firm that creates,
markets, publishes, and sells licenses for the use of
architectural designs. Plaintiff holds certificates of
copyright registration issued by the United States Copyright
Office for most of its designs. Plaintiff's designs at
issue in the present case are: (1) Plan No. 2408 - Crawford;
(2) Plan No. 2326 - Greensboro; (3) Plan No. 2355 - Waverly;
(4) Plan No. 4998 - Holden; (5) Plan No. 7614 - Southwick;
(6) Plan No. 8108 - Rose Hollow; and (7) Plain No. 2377 -
filed this lawsuit on September 4, 2014, claiming that
defendant, Petros Homes, Inc., infringed on plaintiff's
copyrighted plans by manufacturing and selling homes that
used plaintiff's designs. Plaintiff amended its complaint
on February 24, 2016 to add Gary Naim and Sam Petros as
defendants. Plaintiff's amended complaint asserts
a single cause of action: copyright infringement. Defendants
have completely denied liability.
court issued a case management conference order on July 7,
2016 (ECF Doc. No. 59) which established December 1, 2016 as
the date for identifying plaintiff's expert and any
defense expert on a subject matter for which defendants have
the burden of proof. On December 1, 2016, defendants filed a
notice of identification of expert witness indicating that
they may call Kurt Keidel as an expert witness. Defendants
provided Mr. Keidel's contact information and curriculum
vitae, but they did not provide a report as required by
counsel wrote to defendants' counsel on December 13, 2016
demanding immediate production of Keidel's expert report.
In response, defendants informed plaintiff that their expert
had not completed his report and they requested until January
16, 2017 to produce the report. In a January 25, 2017 letter
to the court, plaintiff's counsel advised that defendants
served Keidel's expert report on plaintiff's counsel
on January 23, 2017. Plaintiff's deadline to serve a
responsive report was February 1, 2017. Defendants never
sought an extension of the expert disclosure deadline from
Standard of Review
is well established that the scope of discovery is within the
sound discretion of the trial court.” Lavado v.
Keohane, 992 F.2d 601, 604 (6th Cir. 1993). The Sixth
Circuit reviews a decision to invoke or deny discovery
sanctions under Federal Rule of Civil Procedure 37 for abuse
of discretion. Beil v. Lakewood Eng'g & Mfg.
Co., 15 F.3d 546, 551 (6th Cir. 1994).
26(a)(3), Fed. R. Civ. P., requires a party to make pretrial
disclosures of the documents or exhibits the party expects to
offer at trial and those it may offer if the need arises.
Fed.R.Civ.P. 26(A)(iii). "… Unless otherwise
directed by the court, these disclosures must be made at
least 30 days before trial." Id. Rule
26(a)(2)(B) provides that “[u]nless otherwise
stipulated or ordered by the court, [an expert disclosure]
must be accompanied by a written report…” Rule
37, Fed. R. Civ. P., authorizes the court to impose sanctions
if a party fails to make a disclosure by a required date.
“A party that without substantial justification fails
to disclose information required by Rule 26(a) or 26(e)(1),
or to amend a prior response to discovery as required by Rule
26(e)(2), is not, unless such failure is harmless, permitted
to use as evidence at a trial … any witness or
information not disclosed. In addition to or in lieu of this
sanction, the court, on motion and after affording an
opportunity to be heard, may impose other appropriate
sanctions.” Fed.R.Civ.P. 37(c)(1).
court may exclude a party's evidence if the failure to
timely disclose was without “substantial
justification” or creates “harm”" to
the other party. The Sixth Circuit uses four factors to
review a Rule 37 sanction: first, whether the party's
failure to cooperate in discovery is due to willfulness, bad
faith, or fault; second, whether the adversary was prejudiced
by the party's failure to cooperate in discovery; third,
whether the party was warned that failure to cooperate could
lead to the sanction; and fourth, in regard to a dismissal,
whether less drastic sanctions were first imposed or
considered. Freeland v. Amigo, 103 F.3d 1271, 1277
(6th Cir. 1997).
argues that defendant's expert should be excluded as a
sanction for defendants' failure to provide an expert
report by December 1, 2016. Plaintiff argues that
defendant's expert report was tardy and is deficient.
Plaintiff contends that it has been prejudiced ...