United States District Court, C.D. Illinois, Rock Island Division
JONATHAN E. HAWLEY, Magistrate Judge.
Before the Court is LPS Real Estate Data Solutions, Inc.'s (LPS) Motion to Exclude Untimely Disclosed Evidence (D. 75) and Fidlar Technologies' Response thereto (D. 81). The Court held a hearing on the motion on December 17, 2014. The Court DENIED the motion at that time in part, to the extent that the Court declined to exclude Fidlar's rebuttal expert witness while at the same time giving LPS thirty days to depose that expert. Regarding the portion of LPS's motion which sought to exclude evidence related to Fidlar's claimed damages for diminution in business reputation and loss of good will, the Court DEFERRED ruling until such time as the Court could enter a written Order. The Court now GRANTS in part and DENIES in part LPS's motion, as explained, infra.
Fidlar originally filed suit against LPS on March 1, 2013 (D. 1). The relevant general facts and allegations in this case are fully set forth in U.S. District Judge Sara Darrow's Order dated November 8, 2013 (D. 42), and this Court will not repeat them here.
As for the facts relevant to the motion before the Court, the dispute before the Court centers around Fidlar's allegation in its complaint that LPS's "intentional unauthorized use of Fidlar's products poses a continuing threat to Fidlar's business operations and business reputation." (D. 1 at ECF p. 9; D. 31-1 at ECF p. 12). After the close of discovery, Fidlar supplemented its original answers to LPS's interrogatories, adding some details to its original submission regarding damages for diminution in business reputation and loss of goodwill. (D. 81-9). LPS asserts that the Court should exclude this evidence, arguing that Fidlar's submission is untimely, that Fidlar failed to disclose these damages in earlier submissions, and that Fidlar still has not quantified these damages as required by Federal Rule of Civil Procedure 26(a)(1)(A)(iii).
Fidlar filed its original Complaint on March 11, 2013, wherein it first alleged damages in the category now in dispute. (D. 1). Shortly thereafter, LPS filed its counterclaim and motion for a temporary restraining order and preliminary injunction. In anticipation of the hearing on the preliminary injunction, the parties engaged in expedited discovery. The Court held a hearing on the motion for a preliminary injunction on May 17, 2013 and entered its order denying the motion, among others, on November 8, 2013. (D. 42). Once these preliminary proceedings were concluded, the Court set the Rule 16 Scheduling Conference for January 15, 2014.
In anticipation of that conference, both parties filed proposed discovery plans on January 10, 2014, wherein they each indicated that initial disclosures were complete. (D. 46; D. 47). At the conference, the Court set the close of all fact discovery for August 1, 2014 and all discovery, including expert discovery, for November 1, 2014.
The parties then engaged in extensive discovery, producing over 200, 000 pages of documents and conducting over 40 depositions. (D. 66). On June 16, 2014, LPS submitted interrogatories to Fidlar seeking answers related to Fidlar's allegation of harm to its business reputation and loss of goodwill. Specifically, Interrogatory 4 stated:
With respect to your claims for damages in this lawsuit, specify each type or kind of damage or relief sought, the date and time period of any loss, the exact amount of monetary compensation or other relief sought for each type or kind of damage or relief sought, and the method by which any monetary damages were calculated.
(D. 76-1 at ECF p. 3). Additionally, Interrogatory 8 stated:
Identify the bases of Fidlar's allegations in paragraph 87 of the Amended Complaint that LPS's alleged unauthorized use "of Fidlar's product poses a continuing threat to Fidlar's business operations and business reputation, " including the facts, documents, and witnesses you believe support these allegations.
(D. 76-1 at ECF p. 3).
Before Fidlar answered the interrogatories, the parties on July 21, 2014 jointly moved to extend the fact discovery deadline only, and the Court reset the close of fact discovery to September 15, 2014-a 45 day extension. (D. 66).
Thereafter, on August 14, 2014, Fidlar responded to Interrogatory 4 by providing a detailed chart describing its damages and the amount of said damages in various categories. (D. 81-6 at ECF p. 5). Missing from the chart was any reference to damages stemming from diminution in business reputation and loss of good will, not to mention any attempted computation thereof. Id . However, Fidlar's answer did note that its investigation was "ongoing" and it reserved "the right to supplement its answer in compliance with the Federal Rule of Civil Procedure 26(e)." Id . In response to Interrogatory 8, Fidlar referred LPS generally to its Expedited and Second Production, the deposition transcript of Ginger Bradford, and "transcripts of the County Record of ...