The defendants filed a motion for leave to have the forensic expert report of Curtis Rose considered as affirmative evidence. The defendants timely served Rose's expert rebuttal report but sought to use his opinions as affirmative evidence, despite missing the deadline for doing so. According to defendants' motion, the Rose rebuttal report analyzes "the metadata embedded within files provided to Garmin by Mark W. Atherton, which discuss using a downwardly-directed scanning sonar beam to image underwater features." Defendants argued that, with such short notice, they could not meet the deadline but that they were able to produce to plaintiffs the files in their possession.

Plaintiffs responded that the defendants should not be allowed to present Rose's opinions as affirmative evidence because defendants failed to establish good cause for the untimeliness of his report and because the failure to meet the expert report deadline is not harmless. Plaintiffs contended that the defendants had ample time to discover the significance of the Atherton files and that defendants failed to follow the Court's Amended Scheduling Order.

The district court agreed with the plaintiffs. "The facts surrounding the discovery of the Atherton files demonstrate that defendants likely would not have been able to retain Rose's services and receive his report in time to meet the October 5, 2015, deadline. However, defendants did have time to notify plaintiffs and the Court that additional time was needed. By approaching the issue as they did, defendants attempted an end run around the Amended Scheduling Order."

The district also found that "defendants' actions clearly created the delay now presented to the Court. Had defendants promptly notified the Court that they needed two additional weeks to obtain the Rose report, the Court could have granted the extension and given plaintiffs time to obtain their own expert before the close of a new discovery deadline. All affirmative expert reports could then have been filed on the same day (as anticipated by the Amended Scheduling Order). As it stands, the Court is faced with the prospect of re-opening discovery three months before the scheduled trial date, two months before the parties must submit their final witness and exhibit lists as part of the agreed proposed pretrial order, and a month before the experts' depositions will be taken."

The district court also determined that "[a]t a minimum, the Amended Scheduling Order would need to be revised to allow an additional expert report (the Rose report) and an additional rebuttal report from plaintiffs. Defendants' argue that, with the exception of the expert report deadlines, none of the other deadlines are in jeopardy because plaintiffs could obtain a new expert and have a report completed within a week. But this claim is not verifiable and seems, to the Court, unreasonable. For the foregoing reasons, the Court finds that defendants' failure to serve the Rose report on or before the expert report deadline was not substantially justified."

Accordingly, the district court denied the motion.

Navico Inc. v. Garmin International, Inc., Case No. 14-cv-303-CVE-TLW (N.D. Okla. Dec. 28, 2015)