United States District Court, S.D. New York
February 18, 2004.
AT&T CORP., Plaintiff, -against- MICROSOFT CORPORATION, Defendant
The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
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
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).
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.
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