UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Presstek, Inc.

v. Case No. 05-cv-65-PB

Opinion No. 2007 DNH 044

Creo, Inc. and Creo Americas, Inc.

MEMORANDUM AND ORDER

Creo, Inc. and Creo Americas, Inc. (collectively “Creo”)

have moved to strike supplemental expert disclosures filed by 

Presstek, Inc. on the ground that they were filed after the

parties’ agreed-upon deadline for expert disclosures. Presstek

denies that the disclosures were late and alternatively claims

that they should not be stricken because it was justified in

making the disclosures when it did, Creo was not unfairly

prejudiced by the late disclosures and, in any event, a less

drastic sanction is all that is necessary under the

circumstances. 

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I. BACKGROUND

A. The Infringement Claim

Presstek is the owner of U.S. Patent No. 5,353,705 (filed

Sept. 22, 1993) (“the ‘705 Patent”), entitled “Lithographic

Printing Members Having Secondary Ablation Layers For Use With

Laser Discharge Imaging Apparatus.” The ‘705 Patent discloses a

multilayer lithographic printing plate suitable for laser

imaging. The ‘705 Patent’s sole independent claim reads:

1. A lithographic printing member directly imageable by 

 laser discharge, the member comprising: 

a. a topmost first layer; and 

b. a second layer underlying the first layer, the 

 second layer being characterized by ablative 

 absorption of laser radiation;

c. a third layer underlying the second layer, the third

 layer:

i. being substantially transparent to the laser 

 radiation;

ii. being ablated only partially in response to 

 ablation of the second layer; and 

iii. differing from the first layer in its 

affinity for at least one printing liquid 

selected from the group consisting of ink and

a fluid that repels ink.

In the underlying patent infringement action, Presstek has

sued Creo, claiming Creo’s lithographic printing plate, the

Clarus WL, infringes the ‘705 Patent because it is comprised of:

Case 1:05-cv-00065-PB Document 114 Filed 03/30/07 Page 2 of 21
1 The ‘705 Patent defines “ablate” to mean “decomposes into

gases and volatile fragments.” ‘705 Patent col.5 ll.16-19.

2 The caption is taken from Civil Form 2, “Sample Discovery

Plan,” which is appended to the Local Rules. The form calls for

the specification of expert disclosure dates for plaintiffs and

defendants as well as any agreed-upon dates for supplemental

disclosures. 

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(1) a topmost silicon layer, (2) an underlying second layer made

of carbon black/nitrocellulose which fully ablates1 during

imaging, and (3) an underlying third layer made of amorphous

Polyethlene Terephthalate (“PET”) which partially ablates in

response to heat generated during ablation of the carbon

black/nitrocellulose layer. The parties disagree as to whether

the Clarus WL has a third layer of amorphous PET and, if so,

whether the third layer partially ablates during the laser

imaging process.

B. Discovery Plan

A court-approved Amended Discovery Plan sets the deadlines

for expert disclosures in this case. (Doc. Nos. 19, 54). The

initial Discovery Plan includes a paragraph entitled “Dates Of

Disclosure of Experts And Experts’ Written Reports And

Supplementations.”2 (Doc. No. 19 at 5). The paragraph states

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The parties will exchange case-in-chief

testifying expert reports on issues for which

each party bears the burden of proof (e.g.,

patent infringement and damages for

Plaintiff, patent invalidity for Defendants)

on February 6, 2006. The parties will

exchange rebuttal testifying expert reports

on issues for which each party does not bear

the burden of proof (e.g., patent validity

for Plaintiff, patent non-infringement and

damages for Defendants) on March 8, 2006. 

Depositions of testifying experts will occur

within the following 30 days. 

The Magistrate Judge subsequently approved an Assented-To Motion

To Amend the Discovery Plan, which set September 15, 2006 as the

date for the completion of discovery and extended the expert

disclosure dates to July 21, 2006 for initial expert reports and

August 18, 2006 for rebuttal expert reports. (Doc. No. 54).

C. Dr. Gido’s Initial Infringement Report

In accordance with the amended discovery plan, Presstek

disclosed a report prepared by its infringement expert, Dr.

Samuel P. Gido, on July 21, 2006. (Presstek Opposition to Motion

for Summ. J., Ex. 2, Doc. No. 60-4 (“Gido I”)). In preparing the

report, Dr. Gido employed several different techniques to examine

both imaged and unimaged samples of the Clarus WL. Using

transmission electron microscopy (“TEM”) on an unimaged sample,

Dr. Gido concluded that the Clarus WL includes a topmost silicone

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layer and an underlying second layer of carbon

black/nitrocellulose, which together measure 0.5 microns thick. 

Through selected area electron diffraction (“SAED”), he also

determined that the Clarus WL has a 6-7 micron thick layer of

amorphous PET between the carbon black/nitrocellulose layer and a

semi-crystalline PET substrate. Dr. Gido also used scanning

electron microscopy (“SEM”) and atomic force microscopy (“AFM”)

on an imaged sample to measure the depth of the features that

result from imaging. Using SEM, Dr. Gido obtained depth

measurements ranging from 1.3 to 2.0 microns, depending upon the

location sampled. Using AFM, Dr. Gido obtained depth

measurements ranging from 1.2 to 1.8 microns. He then subtracted

his thickness measurement of the top two layers (0.5 microns)

from the combined range of depth measurements for imaged features

(1.2 to 2.0 microns) to determine that imaging produced features

that extend from 0.7 to 1.5 microns into the amorphous PET. Dr.

Gido then opined that imaging extended into the amorphous PET

because the amorphous PET partially ablated in response to heat

generated in the carbon black/nitrocellulose layer during its

ablation. Dr. Gido did not perform any additional tests in an

effort to specifically demonstrate that PET gas molecules were

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released as a byproduct of the imaging process.

D. Creo’s Experts’ Rebuttal

On August 18, 2006, Creo responded with rebuttal reports

from its experts, Dr. Michael F. Rubner and Brian G. Eastman. 

(Creo’s Assented-To Motion For Leave To File Sur-reply, Ex. 8,

Doc. No. 74-11 (“Rubner Rebuttal”); Presstek’s Sur-reply to

Creo’s Motion for Summ. J., Ex. 9, Doc. No. 76-6 (“Eastman

Rebuttal”)). They reported that the actual thickness of the top

two layers of the Clarus WL is at least 2 microns thick, rather

than 0.5 microns as reported by Dr. Gido. Dr. Gido’s

measurement, they opined, undermines his conclusion that imaging

extends into the amorphous PET. Furthermore, they claimed that

Dr. Gido had failed to offer any persuasive evidence that PET

removal results from ablation even if his depth measurements were

correct. 

E. Deposition of Creo’s Expert, Dr. Rubner

On September 14, 2006, Presstek’s counsel took Dr. Rubner’s

deposition. (Creo’s Sur-reply to its Motion for Summ. J., Ex.

11, Doc. No. 104-17). Presstek’s counsel asked Dr. Rubner

questions about two tests that Dr. Gido had not conducted or

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included in his initial report but that, unbeknownst to Creo, he

would conduct the next day. First, Presstek’s counsel asked

whether measuring terephthalic acid as a byproduct of imaging

would indicate partial ablation of PET, to which Dr. Rubner

replied yes. Id. at 145. Second, he asked Dr. Rubner whether

optical microscopy could be used to show partial ablation of PET,

to which Dr. Rubner replied no. Id. at 146-48. 

F. Dr. Gido’s Supplemental Report

After reviewing Presstek’s expert disclosures, Presstek

commissioned Dr. Gido to conduct additional testing. On

September 15, 2006, the last day scheduled for discovery, and the

same day Dr. Gido completed his work, Presstek filed supplemental

expert disclosures. (Presstek’s Sur-reply to Creo’s Motion for

Summ. J., Ex. 12, Doc. No. 76-10 (“Gido II”)).

The supplemental disclosures describe several additional

procedures that Dr. Gido and a new expert, Dr. Daniel J. Seyer,

performed after Presstek made its initial disclosure. As the

supplemental disclosures describe, Dr. Gido took SEM micrographs

of an imaged sample of the Clarus WL using a new sample

preparation method and concluded that the top two layers of the

product measured 1.33 microns thick, rather than 0.5 microns

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thick as he had previously concluded through TEM analysis. Dr.

Gido also used SEM to arrive at new depth measurements for

features produced by imaging. Using this technique, Dr. Gido

concluded that the depth of features he analyzed ranged from 1.5

to 2.2 microns. After subtracting his new thickness measurement

for the Clarus WL’s top two layers (1.3 microns) from his new

range of depth measurements (1.5 to 2.2 microns), Dr. Gido

determined that the imaging process caused depressions into the

amorphous PET ranging from 0.2 to 0.9 microns, rather than from

0.7 to 1.5 microns as he had originally claimed. 

Dr. Gido also reported on two new tests that he relied on to

respond to other criticisms of his initial disclosure. 

Specifically, he used optical microscopy and reviewed the results

of liquid chromatography/mass spectroscopy (LCMS) tests that had

been performed for him by Dr. Seyer. (Gido II at ¶¶ 23-26, 27-

31). These are the same two procedures that Presstek’s counsel

had asked Dr. Rubner about during his deposition one day earlier. 

Dr. Gido used these tests to confirm his initial opinion that

imaging causes the Clarus WL’s carbon black/nitrocellulose layer

to fully ablate and amorphous PET to partially ablate. Dr.

Gido’s supplemental disclosure included an attached report from

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Dr. Seyer, summarizing his chemical testing and analysis of

debris left on the Clarus WL printing plate following laser

imaging. 

G. The Aftermath

On September 18 and 19, 2006, the parties exchanged letters

of disagreement as to whether Presstek’s September 15th reports

were proper. (Creo’s Sur-reply to its Motion for Summ. J., Ex.

12-13, Doc. No. 104-18/18). On September 19, 2006, four days

after receiving Presstek’s supplemental disclosures, Creo deposed

Dr. Gido. On September 26, 2006, Creo filed this motion to

strike. On September 27, 2006, Presstek offered to make both Dr.

Gido and Dr. Seyer available for depositions and to permit Creo

to submit a supplemental rebuttal report addressing the new

report. (Presstek’s Opposition to Creo’s Motion to Strike, Ex.

8, Doc. No. 98-10). Creo declined the offer. (Id., Ex. 9, Doc.

No. 98-11). 

II. ANALYSIS

Creo contends that Dr. Gido’s supplemental disclosure and

Dr. Seyer’s supporting report should be stricken pursuant to Fed.

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R. Civ. P. 37(c)(1) because they were filed after the amended

discovery plan’s expert disclosure deadline. Presstek responds

by claiming that the disclosures are permitted by Fed. R. Civ. P.

26(a)(2)(C) and Fed. R. Civ. P. 26(e). Alternatively, it argues

that the disclosures should not be stricken pursuant to Rule

37(c)(1) even if they were late because: (1) its delay in making

the disclosures was substantially justified, (2) Creo was not

unfairly prejudiced by the late disclosures, and (3) a less

drastic sanction than preclusion is all that is required under

the circumstances. 

I begin by addressing Presstek’s contention that the

supplemental disclosures were timely under Rule 26(a)(2)(C) and

Rule 26(e). I then turn to the parties’ arguments under Rule

37(c)(1). 

A. Rule 26(a)(2)(C)

Rule 26(a)(2)(C) establishes a default time line for the

disclosure of expert materials. Fed. R. Civ. P. 26(a)(2)(C). 

The rule provides that, “in the absence of other directions from

the court or stipulation by the parties, the disclosures shall be

made at least 90 days before the trial date or the date the case

is to be ready for trial.” Id. Disclosures intended “solely to

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contradict or rebut evidence on the same subject matter

identified by another party” must be filed no later than 30 days

after the disclosure to which it responds, and supplemental

disclosures must be made when required by Rule 26(e). Id. Rule

26(e) provides that supplemental disclosures must be made “at

appropriate intervals” but no later than the date that final

pretrial disclosures are due under Fed. R. Civ. P. 26(a)(3). 

Rule 26(a)(2)(C)’s default disclosure schedule is

inapplicable here because the parties specified their own dates

for expert disclosures in the court-approved amended discovery

plan. Under the plan, Presstek agreed to make its expert

disclosures on the issue of infringement by July 21, 2006. It

did not reserve the right to make additional disclosures to

respond to Creo’s expert disclosures. Accordingly, its September

15, 2006 disclosures were not timely unless they qualify as

supplemental disclosures under Rule 26(e). 

B. Rule 26(e)

Under Rule 26(e)(1), a party has a “duty to supplement or

correct” expert reports if the party learns that the original

report is either “incomplete or incorrect and if the additional

or corrective information has not otherwise been made known to

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the other parties during the discovery process or in writing.” 

Fed. R. Civ. P. 26(e)(1). The duty to supplement is intended to

benefit the recipient of the earlier disclosure by correcting

misinformation or omissions in the prior disclosure. It “does

not grant a license to supplement a previously filed expert

report because a party wants to, but instead imposes an

obligation to supplement the report when a party discovers the

information it has disclosed is incomplete or incorrect.” Coles

v. Perry, 217 F.R.D. 1, 3 (D.D.C. 2003). 

This case provides useful examples that help distinguish

cases in which supplementation is authorized under Rule 26(e)

from those where it is not. Dr. Gido’s acknowledgment in his

supplemental disclosure that the top two layers of Clarus WL were

actually 1.3 microns thick rather than 0.5 microns thick is the

type of supplemental disclosure that is contemplated by Rule

26(e). Dr. Gido discovered that his initial measurement was

erroneous after he prepared his initial report, and his

supplemental disclosure corrects his earlier error on this point. 

The remaining disclosures, in contrast, do not correct

misstatements or misleading omissions in the earlier disclosure. 

Instead, they describe new work that attempts to bolster Dr.

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3 Although, as discussed above, Rule 26(a)(2)(C)’s default

schedule is inapplicable in this case, the rule remains relevant

to my analysis because it is important to consider it when

construing related rules such as Rule 26(e). 

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Gido’s previously disclosed opinions and immunize them from

attack by Creo’s experts. 

Rule 26(e) cannot reasonably be read to encompass expert

disclosures that merely serve to bolster previously disclosed

opinions without compromising the default discovery schedule

envisioned by Rule 26(a)(2)(C).3 Rule 26(a)(2)(C)’s default

disclosure schedule draws sharp distinctions between initial

disclosures, disclosures that are intended “solely to contradict

or rebut evidence on the same subject matter identified by

another party,” and supplemental disclosures covered by Rule

26(e). If Presstek were correct in claiming that Dr. Gido’s new

depth measurements and test results qualify as supplemental

disclosures under Rule 26(e), then Rule 26(a)(2)(C)’s distinction

between rebuttal disclosures and supplemental disclosures would

be meaningless because the new depth measurements and test

results rebut Creo’s expert disclosures rather than correct

misstatements or misleading omissions in the initial disclosure. 

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Presstek’s reading of Rule 26(e) is also unreasonable

because it is inconsistent with the rule’s manifest purpose. 

Rule 26(e) exists to protect recipients of information. It is

not designed to give producing parties a way to avoid agreed-upon

discovery deadlines. Instead, if a party needs to conduct

additional tests to respond to criticism leveled by an opposing

party’s experts after agreed-upon disclosure deadlines have

passed, the proper course of action is to request a modification

of the disclosure deadlines. It may not seek to achieve the same

result unilaterally by waiting until the last possible moment and

making its supplemental disclosure pursuant to Rule 26(e). 

Accordingly, while I agree that Presstek may supplement its

initial disclosure to correct Dr. Gido’s earlier thickness

mismeasurement, I determine that Presstek’s additional 

disclosures are not authorized by Rule 26(e). 

C. Rule 37(c)(1)

Rule 37(c)(1) provides in pertinent part that 

[a] party that without substantial

justification fails to disclose information

required by Rule 26(a) or Rule 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 trial, at a hearing, or on motion

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4 I rely on First Circuit case law in construing Rule

37(c)(1) because the Federal Circuit generally follows the law of 

the circuit in which the district court sits in resolving

questions concerning the rules of civil procedure. See Trilogy

Commc’ns, Inc. v. Times Fiber Commc’ns, Inc., 109 F.3d 739, 744

(Fed. Cir. 1997). See also O2 Micro Int’l Ltd. v. Monolithic

Power Sys., Inc., 467 F.3d 1355, 1368 (Fed. Cir. 2006).

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any witness or information not so disclosed. 

In addition to or in lieu of this sanction,

the court on motion and an opportunity to be

heard, may impose other appropriate sanctions

. . . .

The First Circuit has recognized that “the required sanction in

the ordinary case [for a late disclosure in violation of Rule 37]

is mandatory preclusion.”4 Lohnes v. Level 3 Commc’ns, Inc., 272

F.3d 49, 60 (1st Cir. 2002) (quoting Klonski v. Mahlab, 156 F.3d

255, 269 (1st Cir. 1998)). This “baseline” rule, however, is

subject to exceptions. Santiago-Diaz v. Laboratorio Clinico Y De

Referencia Del Este, 456 F.3d 272, 276 (1st Cir. 2006). 

Preclusion generally will not be appropriate where the delay in

disclosure was either “substantially justified” or “harmless.” 

Poulis-Minott v. Smith, 388 F.3d 354, 358 (1st Cir. 2004). 

Moreover, the court retains “some” discretion to impose an

alternative sanction when the totality of relevant circumstances

warrants a different approach. See Santiago-Diaz, 456 F.3d at

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276. Among the factors that the First Circuit has found

potentially relevant in reviewing a preclusion order under Rule

37(c)(1) are “the history of the litigation, the proponent’s need

for the challenged evidence, the justification, if any, for the

late disclosure and the opponent’s ability to overcome its

adverse effects.” Id. at 276-77 (quoting Macaulay v. Anas, 321

F.3d 45, 51 (1st Cir. 2003)). 

Presstek argues that its supplemental disclosures should not

be precluded both because it was substantially justified in

making the disclosures after the disclosure deadline and because

its delay was harmless. Alternatively, it claims that a sanction

less drastic than preclusion is warranted under the

circumstances. I address each argument in turn. 

1. Substantial Justification

Presstek has failed to persuasively argue that its delay in

making the disclosures was substantially justified. Its central

claim is that it was entitled to make the disclosure when it did 

because it did not foresee the need to perform the procedures

described in the disclosures until Creo’s experts attacked its

initial disclosure. In cases such as this, however, where the

plaintiff bears the burden of proof at trial and has not itself

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5 I also find unpersuasive Presstek’s claims that its late

disclosures were justified either because Creo too made late

disclosures or because Presstek reserved the right to make

supplemental disclosures in its initial disclosure. The

disclosures that Presstek points to were made by Creo in support

of its motion for summary judgment. However, these disclosures

do not contain new information and thus they do not qualify as

supplemental disclosures. In any event, a party’s failure to

comply with its disclosure obligations is not excused by the

opposing party’s noncompliance. See Carney v. KMart Corp., 176

F.R.D. 227, 230 (S.D.W.Va. 1997); Moore’s Federal Practice at §

26.27[2][c]. Finally, a unilateral reservation of the right to

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properly reserved the right to make rebuttal disclosures, it may

not wait to fill gaps in its proof by deferring necessary tests

until after the defendant has made its expert disclosures. See

Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir. 1998);

James W. Moore, Moore’s Federal Practice (3d Ed.) § 26.27[2][c]. 

Presstek’s alternative argument that its delay is excusable

because it misconstrued the discovery plan is also unavailing. 

The amended discovery plan established clear deadlines for expert

disclosures and Presstek did not reserve the right to rebut

Creo’s expert disclosures. Accordingly, Presstek is in no

position to credibly claim that it was somehow misled by the

amended discovery plan into a reasonable but mistaken belief that

it was authorized to make the supplemental disclosures when it

did.5

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supplement after a disclosure deadline cannot alter the agreedupon disclosure schedule because Rule 26(a)(2)(C) permits expert

disclosure schedules to be modified only by “directions from the

court or stipulation by the parties.” 

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2. Harmlessness

Presstek argues that Creo was not harmed by the timing of

the supplemental disclosures because it made the disclosures

before Dr. Gido’s deposition. I disagree. 

Presstek made the supplemental disclosures on the last day

of the discovery period and only four days before the agreed-upon

date for Dr. Gido’s deposition. Moreover, Presstek did not make

the disclosures until after it had deposed Creo’s experts and

asked them about new tests that it was secretly planning to have

Dr. Gido perform. Moreover, the disclosures were not made until

after Creo had filed its summary judgment motion and replied to

Presstek’s objection. Under these circumstances, I am simply

unpersuaded by Presstek’s claim that the timing of its

supplemental disclosures was harmless.

3. Alternatives to Preclusion

Presstek argues that the supplemental disclosures should not

be precluded because they describe evidence that is “highly

relevant to the ‘key issues’ in the case” and because any harm to

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Creo can be redressed by allowing Creo to file rebuttal expert

reports, redepose Dr. Gido, and depose Dr. Seyer. I find neither

argument persuasive. 

While it is true that the supplemental disclosures address

evidence that might well prove crucial to Presstek’s infringement

claim, this fact alone does not bar preclusion of expert

testimony where other factors make the sanction appropriate. See

O2 Micro Int’l Ltd., 467 F.3d at 1369 (rejecting argument that

court’s exclusion order was an abuse of discretion where

exclusion was tantamount to dismissal); Santiago-Diaz, 456 F.3d

at 277 (affirming preclusion order even though precluded

testimony was vital to plaintiff’s claim). In this case,

Presstek attained a significant tactical advantage by failing to

make the supplemental disclosure until: (1) after summary

judgment briefing was nearly complete, (2) after Creo’s expert

had been deposed and questioned about tests that he did not know

Presstek was planning to discuss, and (3) only four days before

Dr. Gido was deposed. At this point, it is impossible to “unring

the bell” by simply extending the discovery period as Presstek

suggests. Moreover, because Presstek has no good explanation for

its failure to have Dr. Gido perform the tests described in the

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supplemental disclosure at a time when it could have included the

results in its initial disclosure, it is not unfair to subject it

to the “baseline” standard of preclusion called for by Rule

37(c)(1). 

III. CONCLUSION

Creo’s Motion to Strike (Doc. No. 75) is granted except to

the extent that it seeks to preclude Dr. Gido from testifying

concerning his most recent measurements of the thickness of the

top two layers of the Clarus WL. If Creo chooses to do so, it

may conduct additional discovery concerning Dr. Gido’s thickness

measurements and amend its own disclosures on this issue. On or

before April 13, 2007, the parties shall submit an amended

discovery plan proposing dates for the completion of the

discovery on this issue and the service of the supplemental

disclosures that are authorized by this Memorandum and Order.

SO ORDERED.

/s/ Paul Barbadoro

Paul Barbadoro

United States District Judge

March 30, 2007

cc: Brian Comack, Esq.

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Kenneth George, Esq.

Michael Kasdan, Esq.

William Lee, Esq.

Gordon MacDonald, Esq.

Nora Passamaneck, Esq.

Lisa Pirozzolo, Esq.

James Rosenberg, Esq.

Arpiar Saunders, Esq.

Michael Solomita, Esq.

S. Calvin Walden, Esq.

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