Opinion
01 Civ. 4872 (WHP)
February 18, 2004
Jonathan G. Graves, Esq., Frank V. Pietrantonio, Esq., Brian M. Koide, Esq., Cooley Godward, LLP, Reston, VA, for Plaintiff
Stephen C. Neal, Esq., Cooley Godward, LLP, Palo Alto, CA, for Plaintiff
Robert D. Kaplan, Esq., Hallie B. Levin, Esq., Friedman Kaplan Seller Adelman LLP, New York, NY, for Plaintiff
Laura A. Kaster, Esq., Dina Mack, Esq., AT T Corp. One AT T Way, Bedminster, NJ, Of Counsel for Plaintiff
Dale M. Heist, Esq., David R. Bailey, Esq., Paul B. Milcetic, Esq., Woodcock, Washburn, Kurtz MacKiewicz Norris LLP, Philadelphia, Pennsylvania, for Defendant
James H. Carter, Esq., Sullivan Cromwell, New York, NY, for Defendant
T. Andrew Culbert, Esq., Microsoft Corporation, Redmond, WA, Of Counsel for Defendant
ORDER
On February 11, 2004, plaintiff AT T Corp. ("AT T") made an application to strike the declaration of Dr. Joel Steckel, filed in support of defendant Microsoft Corporation's ("Microsoft's") opposition to AT T's "Motion In Limine #2: Motion to Exclude Testimony of Professor Eugene Ericksen and Evidence or Argument About Usage of the Accused Products." Dr. Steckel's declaration concerns the validity of a survey conducted by Professor Ericksen (the "Ericksen Survey"). AT T urges this Court to strike Dr. Steckel's declaration because Microsoft failed to identify him as an expert in this action. Expert discovery in this action closed on November 26, 2003. (Stipulation and Order, dated September 25, 2003.) Microsoft argues that it does not intend to call Dr. Steckel at trial, and that his declaration is only being used to counter a declaration by one of AT T's experts, Dr. Eric Bradlow. AT T, however, timely identified Dr. Bradlow as an expert and served his expert report on Microsoft.
Dr. Steckel's declaration, attached to Microsoft's opposition memorandum at Exhibit 2, is an expert opinion on the validity and methodology of the Ericksen Survey. Federal Rule of Civil Procedure 37(c) (1) states that:
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 trial, at a hearing, or on a motion any witness or information not so disclosed.
Fed.R.Civ.P. 37(c)(1) (emphasis added). It is undisputed that Microsoft failed to identify Dr. Steckel as an expert and that AT T had no notice of this witness. As Microsoft is in violation of this Court's September 25, 2003 Order as well as Fed.R.Civ.P. 26, this Court strikes Dr. Steckel's expert declaration, and any references thereto, from Microsoft's opposition memorandum. See Fed.R.Civ.P. 37(c)(1); Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108-09, 113 (2d Cir. 2000) (holding that district court has discretion to sanction a party who fails to comply with a discovery order, whether that failure was due to bad faith, gross negligence, or ordinary negligence); Semi-Tech. Litig. LLC v. Bankers Trust Co., 02 Civ. 0711 (LAK), 2004 WL 27718, at *1 (S.D.N.Y. Jan. 6, 2004) (granting motion to exclude expert witness disclosed by party in an untimely manner).
CONCLUSION
For the reasons set forth above, AT T's application to strike Dr. Joel Steckel's expert declaration from Microsoft's opposition to AT T's Motion in Limine #2 is granted.SO ORDERED.