IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

INSTANT TECHNOLOGY, LLC, an Illinois )

limited liability company, )

)

Plaintiff, )

)

v. ) No. 12 C 491

)

ELIZABETH DEFAZIO, LAURA REHN, )

MEGAN MARKER, BETHANY MEEK, )

ERIN BAUER, JOEL KATZ, ANDREA )

KATZ, individuals, and CONNECT SEARCH, )

LLC, a Delaware Limited Liability Company, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, District Judge:

On April 19, 2012, plaintiff Instant Technology, LLC (“Instant Technology”) filed a First 

Amended Verified Complaint for Injunctive and Other Relief (Dkt. No. 40 (“Am. V. Compl.”)) 

against former employees Elizabeth DeFazio, Laura Rehn, Bethany Meek, and Erin Bauer 

(collectively “Employee Defendants”), as well as against Joel Katz, Andrea Katz, and Connect 

Search, LLC (“Connect Search”) (collectively “Connect Search Defendants”) (altogether 

“defendants”). Instant Technology seeks injunctive and other relief from Employee Defendants 

for breach of employment agreements, breach of fiduciary duty, and alleged violations of the 

Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. Instant Technology also seeks 

injunctive and other relief from all defendants for alleged violations of the Illinois Trade Secrets 

Act (“ITSA”), 765 ILCS 1065/2-3, tortious interference with business expectancies, and civil 

conspiracy, and from DeFazio and the Connect Search Defendants for tortious interference with 

contract. 
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Instant Technology submitted the report of its damages expert, Dwight D. Steward, on 

October 29, 2012, well before the close of discovery on March 15, 2013. (Dkt. No. 204, Ex. A; 

see also Dkt. No. 114.) On June 4, 2013, the court granted Instant Technology’s motion to 

update the report to account for additional information it had gathered during discovery, but 

stated that Instant Technology could not add new theories that were not included in the original 

expert report. (See Dkt. No. 178, at 6 (“If the damages expert includes new theories in his report, 

rather than merely updating it to account for new information Instant Technology has learned 

since October 29, 2012, the defendants may move to strike the new theories.”).) Instant 

Technology submitted Steward’s updated expert report on June 20, 2013. (Dkt. No. 204, Ex. C.) 

Thereafter, the defendants moved to strike paragraphs 5, 6, 7, and 8 of the updated report on the 

ground that they include new theories not presented in Steward’s original report. Instant 

Technology has responded to the motion. (Dkt. No. 213.) The defendants’ reply is due on 

September 12, 2013, but the court has no need of a reply. For the reasons stated below, the

motion is granted. 

Federal Rule of Civil Procedure 26(a)(2)(D) provides that “[a] party must make [expert] 

disclosures at the times and in the sequence that the court orders.” As mentioned above, all 

discovery, including expert discovery, closed on March 15, 2013. In addition, the deadlines for 

the submission of expert reports was months earlier, in October 2012. (Dkt. No. 51.) Instant 

Technology filed its motion to update its expert report on March 15, 2013, at the very end of 

discovery and well after the deadline for the submission of expert reports. (Dkt. No. 152.) In 

light of the untimeliness of the motion, the court allowed Instant Technology to update its expert 

report to add “additional or corrective information,” as Instant Technology was required to do

under Fed. R. Civ. P. 26(e), but did not allow Instant Technology to add new expert theories. See 
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Talbert v. City of Chicago, 236 F.R.D. 415, 424 (N.D. Ill. 2006) (listing cases in which courts 

have excluded untimely expert reports that espoused new theories, and stating that “[i]t is no 

surprise that supplemental expert opinions that threaten to belatedly send the case on a wholly 

different tack are excluded”). That resolution allowed Instant Technology to update its existing 

expert theories with new data and information since it submitted its original report, but prevented 

Instant Technology from inappropriately delaying the rest of the case by espousing new theories 

requiring additional discovery at the very end of the discovery period.

Steward’s original report espoused four theories. First, it calculated the profits that Instant 

Technology would have earned if the Employee Defendants had not left the company by 

calculating the proportion of revenue from each of Instant Technology’s clients attributable to 

the Employee Defendants in the past and extrapolating those amounts into the future. (Dkt. No. 

204, Ex. A ¶¶ 8-14.) Second, it calculated the cost to Instant Technology of training additional 

employees to replace the Employee Defendants. (Id. ¶¶ 15-19.) Third, it calculated the amount 

Instant Technology would have to spend to recruit individuals to replace the Employee 

Defendants. (Id. ¶¶ 20-21.) Finally, it calculated the additional funds Instant Technology had to 

spend to retain its remaining employees because the Employee Defendants left. (Id. ¶ 22.) 

Paragraphs 5-8 of Steward’s updated expert report attempt to calculate Instant 

Technology’s damages in a different way. Specifically, they use the revenue that Connect Search 

earned from Instant Technology’s clients to calculate revenue that would have gone to Instant 

Technology absent the defendants’ wrongful actions. (See Dkt. No. 204, Ex. C ¶¶ 5-6.) In 

addition, the updated report attempts to calculate Instant Technology’s damages based on the job 

placement opportunities that Connect Search obtained from Instant Technology clients and that 

were therefore unavailable to Instant Technology. (Id. ¶¶ 7-8.)
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Nothing in Steward’s original report attempted to calculate Instant Technology’s 

damages based on Connect Search’s revenue or business activity with Instant Technology’s 

clients. Indeed, at his deposition Steward explicitly disavowed reliance on any such data: 

Q. Do you have any understanding as to whether any of the clients listed on Table 

1-B are doing business or did business in 2012 with any of the defendants?

[By Dr. Steward:] A. I don't know.

Q. Did that matter to your analysis at all?

A. No.

(Dkt. No. 204, Ex. E (“Steward Dep.”) at 131:22-132:5.) Accordingly, the court determines that 

paragraphs 5-8 of Steward’s updated report inappropriately present new theories in violation of 

the court’s order of June 4, 2013. (Dkt. No. 178.) 

CONCLUSION

For the reasons explained above, the defendants’ motion to strike paragraphs 5-8 of 

Dwight Steward’s updated expert report (Dkt. No. 204.) Paragraphs 5-8 of Dwight Steward’s 

updated expert report (Dkt. No. 204, Ex. C.) are struck. Nothing in this order prevents Instant 

Technology from relying on the facts underlying paragraphs 5-8 of Steward’s report. The 

schedule set on August 22, 2013 (Dkt. No. 215) remains in effect. The parties are once again 

encouraged to discuss settlement.

ENTER:

_______________________________

JAMES F. HOLDERMAN

District Judge, United States District Court

Date: September 3, 2013