1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 All references to the Rules are to the Federal Rules of Civil 1

Procedure unless otherwise indicated.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

UMG RECORDINGS, INC., NO. CIV.S-04-2611 FCD DAD

et al.,

Plaintiffs,

v. FINDINGS AND RECOMMENDATIONS

DISCO AZTECA DISTRIBUTORS,

INC.,

Defendant.

__________________________/

This matter came before the court on July 7, 2006, for

hearing on plaintiffs UMG Recordings, Inc., Univision Music LLC and

Disa, LLC’s motion to exclude evidence pursuant to Federal Rule of

Civil Procedure 37(c)(1) due to defendant Disco Azteca Distributor’s

failure to comply with the expert report requirement of Rule

26(a)(2)(B) concerning the expert testimony of Mitch Holder 1

(“Holder”). Plaintiffs’ motion was referred to this court by Local

Case 2:04-cv-02611-FCD-DAD Document 54 Filed 07/18/06 Page 1 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

Rule 72-302(c)(1), pursuant to 28 U.S.C. § 636(b)(1)(A). Jeffrey D.

Goldman appeared on behalf of plaintiffs at the hearing on the

motion. David S. White appeared telephonically on behalf of

defendant. The court has considered all written materials submitted

with respect to the motion and heard oral argument. For the reasons

discussed on the record at the hearing, and as further explained

below, the undersigned will recommend that plaintiffs’ motion to

strike be granted.

APPLICABLE LEGAL STANDARDS

Rule 26(a)(2)(B) deals with disclosure of expert reports

and provides as follows:

Except as otherwise stipulated or directed by

the court, this disclosure shall, with respect

to a witness who is retained or specially

employed to provide expert testimony in the

case or whose duties as an employee of the

party regularly involve giving expert

testimony, be accompanied by a written report

prepared and signed by the witness. The report

shall contain a complete statement of all

opinions to be expressed and the basis and

reasons therefor; the data or other information

considered by the witness in forming the

opinions; any exhibits to be used as a summary

of or support for the opinions; the

qualifications of the witness, including a list

of all publications authored by the witness

within the preceding ten years; the

compensation to be paid for the study and

testimony; and a listing of any other cases in

which the witness has testified as an expert at

trial or by deposition within the preceding

four years.

Fed. R. Civ. P. 26(a)(2)(B). Rule 37 addresses a party’s failure to

disclose expert reports and provides:

/////

Case 2:04-cv-02611-FCD-DAD Document 54 Filed 07/18/06 Page 2 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

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, at a hearing, or

on a motion any witness or information not so

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. In addition to

requiring payment of reasonable expenses,

including attorney's fees, caused by the failure,

these sanctions may include any of the actions

authorized under Rule 37(b)(2)(A), (B), and (C)

and may include informing the jury of the failure

to make the disclosure.

Fed. R. Civ. P. 37(c)(1).

The Ninth Circuit Court of Appeals has observed that “we

give particularly wide latitude to the district court’s discretion to

issue sanctions under Rule 37(c)(1).” Yeti by Molly v. Deckers

Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)(citing Ortiz-Lopez

v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de Puerto Rico,

248 F.3d 29, 34 (1st Cir. 2001)). In Yeti by Molly the Ninth Circuit

upheld the district court’s exclusion of expert testimony where the

defendant disclosed the expert’s report outside the time provided by

Rule 26(a)(2). The court explained that Rule 37(c)(1),

is a recognized broadening of the sanctioning

power. Klonoski v. Mahlab, 156 F.3d 255, 269

(1st Cir. 1998) ("[T]he new rule clearly

contemplates stricter adherence to discovery

requirements, and harsher sanctions for breaches

of this rule...."). The Advisory Committee Notes

describe it as a "self-executing," "automatic"

sanction to "provide[ ] a strong inducement for

disclosure of material...." Fed. R. Civ. P. 37

advisory committee's note (1993). Courts have

upheld the use of the sanction even when a

litigant's entire cause of action or defense has

been precluded. Ortiz-Lopez, 248 F.3d at 35

Case 2:04-cv-02611-FCD-DAD Document 54 Filed 07/18/06 Page 3 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 Defendant argues that the holding in Baterman v. United States 2

Postal Serv., 231 F.3d 1220 (9th Cir. 2000) requires that the motion

to strike be denied. The argument is misplaced. In Bateman the

court was addressing a request for relief under Rule 60(b)(1) where

judgment had been entered because a motion for summary judgment had

been uncontested due to opposing counsel being out of the country. 

231 F. 3d at 1222-23. Here, Rule 60(b)(1) and the “excusable

neglect” language contained therein has no application. The Ninth

Circuit has not applied the Bateman factor test to Rule 37(c)(1)

sanctions where the sanction being sought is limited to the exclusion

of expert testimony. See Yeti by Molly, 259 F.3d at 1106-07.

4

(although the exclusion of an expert would

prevent plaintiff from making out a case and was

"a harsh sanction to be sure," it was

"nevertheless within the wide latitude of" Rule

37(c)(1)).

Yeti by Molly, 259 F.3d at 1106. 

The Ninth Circuit also noted that “[t]wo express exceptions

ameliorate the harshness of Rule 37(c)(1): The information may be

introduced if the parties' failure to disclose the required

information is substantially justified or harmless.” Id. The party 2

facing sanctions bears the burden in this regard. Id. at 1107

(“Implicit in Rule 37(c)(1) is that the burden is on the party facing

sanctions to prove harmlessness.”); Wilson v. Bradlees of New

England, Inc., 250 F.3d 10, 21 (1st Cir. 2001)(“[I]t is the

obligation of the party facing sanctions for belated disclosure to

show that its failure to comply with the Rule was either justified or

harmless and therefore deserving of some lesser sanction.”)

ANALYSIS

Plaintiffs initiated this action against defendant for

violation of United States Copyright Law, seeking damages for

copyright infringement under 17 U.S.C. § 101 et seq. Plaintiffs

Case 2:04-cv-02611-FCD-DAD Document 54 Filed 07/18/06 Page 4 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

allege that defendants illegally imported phonorecords from Mexico

containing copyrighted works owned by plaintiffs. Defendant cross

claimed against two of the plaintiffs, Univision Music, LLC and DISA

LLC, alleging that they similarly had imported phonorecords

containing copyrighted works owned by defendant.

In support of its cross claim, defendant Disco Azteca

Distributors seeks to utilize the expert testimony of Mitch Holder, a

professional studio guitar player. Under the court’s June 30, 2005

Scheduling Order the deadline for disclosing expert witnesses was

March 3, 2006. By stipulation and order filed April 6, 2006, the

court extended the deadline to disclose expert witnesses and provide

expert reports to April 24, 2006. On April 24, 2006, defendant

disclosed the identity of their expert Mr. Holder. However,

defendant failed to submit an expert report that met the requirements

of Rule 26(a)(2)(B). Plaintiffs wrote to defendant concerning the

deficient report and noticed Holder’s deposition for May 18, 2006. 

That noticed deposition did not go forward, however, because no

expert report was filed by defendant as of the date of deposition. 

On June 5, 2006, plaintiffs brought this motion to strike on the same

day that defendant finally submitted a proper expert report as

required under Rule 26. Under these circumstances, plaintiffs’

motion to strike defendant’s belated designation of expert is welltaken. 

Defendant violated Rule 26(a)(2)(B) by failing to provide a

timely expert report, thereby denying the plaintiffs notice of Mr.

Holder’s opinions or the data and reports upon which such opinions

Case 2:04-cv-02611-FCD-DAD Document 54 Filed 07/18/06 Page 5 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

6

are based. Defendant does not contend that the disclosure submitted

on April 24, 2006 was complete. Moreover, although defendant’s

amended expert disclosure belatedly filed on June 5, 2006 is 

complete, because it was not timely submitted, under Rule 37(c)(1)

Mr. Holder’s expert testimony is inadmissible unless the failure was

either: (1) substantially justified or (2) harmless.

Defense counsel first argues that the failure to disclose

was substantially justified. In this regard, counsel asserts that

the late submission of the required expert report was due to a

combination of factors beyond counsel’s control. Counsel contends

that he was preoccupied due to his engagement in a number of trials

at the time the expert report was due. (Defendant’s Opposition at

3). The Ninth Circuit and other courts have rejected the notion that

the press of business constitutes a “substantial justification” for

non-disclosure sufficient to avoid imposition of a discovery

sanction. See Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020,

1028 (9th Cir. 2003); see also Pinero Schroeder v. Federal National

Mortgage Ass’n, 574 F.2d 1117, 1118 (1st Cir. 1978). Next,

defendant’s counsel explains that Mr. Holder was in Yosemite for ten 

days and was thereafter preoccupied with rehearsals thus rendering

him unavailable to produce the expert report required under Rule 26. 

(Defendant’s Opposition at 3-4). Counsel’s claim that his expert was 

occupied is unpersuasive. Obviously, contacting opposing counsel and

seeking a stipulation extending the discovery cut-off dates was an

avenue available to defense counsel. Failing that, counsel could

have timely sought an extension of time from the court, located a

Case 2:04-cv-02611-FCD-DAD Document 54 Filed 07/18/06 Page 6 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

7

different expert, or more effectively communicated with his preferred

expert and scheduled around any possible conflicts. None of the

reasons advanced by defendant constitute a substantial justification

for the untimely filing of Mr. Holder’s expert report.

Next, defendant argues that the failure to provide the

timely expert report was harmless. That claim is unsupportable.

Pursuant to the District Court’s Scheduling Order expert discovery in

this action closed on June 2, 2006. Defendant failed to submit the

required expert report until June 5, 2006. Thus disclosure took

place after discovery had closed, after the date noticed for Holder’s

deposition, and approximately six weeks after the deadline to

disclose expert witnesses. As of the date of the hearing on this

motion, discovery was closed and thus plaintiffs have been denied an

opportunity to depose defendant’s expert. Under these circumstances

defendant’s failure to timely disclose their expert report was

clearly not harmless.

While plaintiffs have been harmed as a result of

defendant’s failure to timely disclose the expert report, the

prejudice suffered is attributable to the fact that the deadlines for

discovery and the filing of dispositive motions under the scheduling

order have elapsed. Indeed, as the undersigned commented at the

hearing on this motion, once the required expert report was belatedly

produced three days after the close of expert discovery, plaintiffs’

counsel made no effort to mitigate the harm. Instead, plaintiffs’

counsel appears to have adopted a strategy of taking advantage of

defense counsel’s failure by moving to strike defendant’s expert. 

Case 2:04-cv-02611-FCD-DAD Document 54 Filed 07/18/06 Page 7 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 The undersigned finds unpersuasive plaintiffs’ argument that 3

because they have now filed their summary judgment motion the harm

suffered cannot be alleviated by the re-opening of discovery since

defendant’s expert would now have the benefit of seeing plaintiffs’

summary judgment motion prior to his deposition. The belatedly

produced expert report was disclosed long before plaintiffs’ summary

judgment motion was filed. 

8

That is not to say that plaintiffs’ counsel was obligated to act

otherwise. Nonetheless, upon review of these Findings and

Recommendations, were the assigned district judge to extend the

deadlines for discovery and dispositive motions for the purpose of

allowing Mr. Holder to be deposed, the harm to plaintiffs would be

eliminated. Of course, the magistrate judge is not empowered to 3

modify the district judge’s scheduling order. Plaintiffs were not

permitted to depose defendant’s expert witness prior to the close of

discovery. Thus, plaintiffs were harmed by defendant’s late

disclosure.

For these reasons, the undersigned will recommend that the

motion to strike be granted.

CONCLUSION

Accordingly, the court HEREBY RECOMMENDS that plaintiffs

UMG Recordings, Inc., Univision Music LLC and Disa, LLC’s motion to

strike the expert testimony of Mitch Holder be granted. 

These findings and recommendations are submitted to the

United States District Judge assigned to the case, pursuant to the

provisions of 28 U.S.C. § 636(b)(1). Within ten (10) days after

being served with these findings and recommendations, either party

may file written objections with the court. Such a document should

Case 2:04-cv-02611-FCD-DAD Document 54 Filed 07/18/06 Page 8 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

9

be captioned “Objections to Magistrate Judge’s Findings and

Recommendations.” The parties are advised that failure to file

objections within the specified time may waive the right to appeal

the district court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th

Cir. 1991).

DATED: July 17, 2006.

DAD:im

Ddad1/orders.civil/UMG2611.order

Case 2:04-cv-02611-FCD-DAD Document 54 Filed 07/18/06 Page 9 of 9