Estate of Rey v. Gonzalez

THE ESTATE OF RAFAEL LEAVITT REY, Plaintiff v. SAMUEL MARRERO GONZALEZ, et al., Defendants.

CIVIL NO. 16-2769 (RAM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

August 4, 2020

OPINION AND ORDER¹

RAÚL M. ARIAS-MARXUACH, United States District Judge

Pending before the Court is Plaintiff the Estate of Rafael "Raphy" Leavitt Rey's ("Plaintiff" or "the Estate") Motion in Limine (Docket No. 457). Having considered the parties' submissions in support and opposition thereto,² the Courts GRANTS in part and DENIES in part the pending Motion in Limine. For the reasons set forth below, the Court GRANTS the Estate's Motion to preclude the YouTube videos and DENIES the Estate's Motion to prevent Defendants from raising affirmative defenses at trial. The Court will, however, limit evidence to information presented during the Discovery Period, even if related to these new defenses. Lastly, the Court DENIES the Estate's Motion in Limine to preclude Defendants from presenting expert witness testimony. The Courtpermits the testimony disclosed by Defendants and finds that it is more appropriately characterized as expert witness testimony under Rule 26(a)(2)(C), which does not require an expert report.

I. LEGAL STANDARD

Fed. R. Civ. P. 26 dictates the required disclosures a party must proffer to the Court as well as the general provisions which govern discovery issues before and during trial. Specifically, Rule 26 provides that a party must provide to the other parties copies "of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment." Zampierollo-Rheinfeldt v. Ingersoll-Rand de Puerto Rico, Inc., 2020 WL 881011, at *2 (D.P.R. Feb. 21, 2020) (quoting Fed. R. Civ. P. 26(a)(1)(A)(ii)). Fed. R. Civ. P. 26 "promotes fairness both in the discovery process and at trial." TLS Mgmt. & Mktg. Servs. LLC v. Rodriguez-Toledo, 2018 WL 4677451, at *12 (D.P.R. 2018) (quotation omitted). It is meant to "prevent 'trial by ambush,' because opposing counsel cannot adequately cross-examine without advance preparation." Diaz-Casillas v. Doctors' Ctr. Hosp. San Juan, 342 F. Supp. 3d 218, 226-27 (D.P.R. 2018) (citing Macaulay v. Anas, 321 F.3d 45, 50, 52 (1st Cir. 2003)).

Rule 26 also governs expert witness disclosures. To wit, a party must provide the name, "the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses." Fed. R. Civ. P. 26(a)(1)(A)(i). The rule provides for two types of expert witnesses - "those 'retained or specially employed' to provide expert testimony, who must provide a detailed written report [...] pursuant to Fed. R. Civ. P. 26(a)(2)(B), and those who may provide the truncated disclosure set out in Fed. R. Civ. P. 26(a)(2)(C)." Wai Feng Trading Co. Ltd. v. Quick Fitting, Inc., 2018 WL 6726557, at *5 (D.R.I. 2018) (quoting Downey v. Bob's Disc. Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011)). For expert witnesses who have not been retained or specially employed for litigation, Fed. R. Civ. P. 26(a)(2)(C) requires that the party "only disclose the subject of the witness's expected expert testimony and a summary of the facts and opinions that the expert may offer." Ferring Pharm., Inc. v. Braintree Labs., Inc., 215 F. Supp. 3d 114, 124 (D. Mass. 2016). See also In re Zofran (Ondansetron) Prod. Liab. Litig., 2019 WL 4980310, at *4 (D. Mass. 2019).

If a party fails to abide by Fed. R. Civ. P. 26, Fed. R. Civ. P. 37(c) applies. Rule 37 provides that:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

Fed. R. Civ. P. 37(c)(1). This District has determined that Fed. R. Civ. P. 37(c)(1) "authorizes the trial court to impose sanctions, up to and including dismissal of the action on account of a party's failure to comply with these automatic disclosure obligations." López Ramírez v. Grupo Hima San Pablo, Inc., 2020 WL 365554, at *3 (D.P.R. 2020) (quotation omitted). However, exclusion of evidence is "not a strictly mechanical exercise." Medina Rodriguez v. Canovanas Plaza Rial Econo Rial, LLC, 2019 WL 5448538, at *5 (D.P.R. 2019) (quotation omitted). The party facing sanctions has "the burden of proving substantial justification or harmlessness to get a penalty less severe than evidence preclusion." Eldridge v. Gordon Bros. Grp., L.L.C., 863 F.3d 66, 85 (1st Cir. 2017).

II. FACTUAL AND PROCEDURAL BACKGROUND

On October 4, 2016, the Estate filed suit against twelve (12) musicians, their spouses, and the conjugal partnership between them, when applicable. (Docket No. 1 at 1-2). The Estate accused the musicians of copyright infringement under the Copyright Act and the Puerto Rico Moral Rights Act for five (5) of the Estate's songs. Id. at 13-24. The Complaint also accused Madera Events, Corp., the Municipality of Hormigueros, the Centro Cultural de Corozal, Inc., the Municipality of Corozal, JAR Marketing Communications, Inc. and the Municipality of Utuado of contributory infringement. Id. at 24-28. Finally, the Complaint sought a preliminary injunction to enjoin Defendants' continued violations of the Estate's rights. Id. at 28-29.

On February 19, 2020, the Estate filed the pending Motion in Limine (Docket No. 457) against the musicians, their spouses and conjugal partnership between them, if applicable (collectively, "Defendants"). Generally, it averred that Defendants disclosed certain evidence in an untimely manner and that they should be precluded from presenting that evidence now. The evidence and matters in question include: (1) YouTube videos not disclosed during the Discovery Period; (2) four affirmative defenses brought after the close of Discovery, and (3) an attempt to present expert witnesses, who Defendants did not disclose in a timely manner and for whom they did not prepare expert witness reports. Id. at 4. Defendants disclosed the defenses and expert witnesses in the draft Joint Proposed Pretrial Memorandum ("JPPM") sent to the Estate on January 30, 2019, with the final version of the JPPM submitted to the Court on May 2, 2019. (Docket Nos. 472 at 7; 361). Discovery closed on September 12, 2018. (Docket Nos. 159; 457 at 9 n.6).

After the Estate's Motion in Limine, there were numerous motions filed both in support of and in opposition to the pending motion: Defendants' Motion in Opposition to Plaintiff's Motion in Limine at Dkt. #457 and/or Requesting the Court's Guidance Concerning Evidentiary Motions (Docket No. 460), Plaintiff's Motion in Response to Defendants' Request for Guidance Concerning Evidentiary Motions (Docket No. 464), Defendants' Opposition to Plaintiff's Motion in Limine at Dkt. #457 (Docket No. 472), the Estate's Reply to Defendants' Opposition to Motion in Limine at Docket No. 457 (Docket No. 483), and Defendants' Sur-Reply Concerning Opposition to Plaintiff's Motion in Limine at Dkt. #457. (Docket No. 490).

III. ANALYSIS

A. YOUTUBE VIDEOS

Defendants in the present case look to admit into evidence publicly available YouTube videos not disclosed throughout the Discovery process. (Docket No. 457 at 4). Defendants assert that their late disclosure was harmless or justified. (Docket No. 472 at 6). The Estate contends that it is prejudiced by the late disclosure because it was not allowed an opportunity to depose Defendants' experts over the reach and conclusions they seek to derive from the videos. (Docket No. 483 at 17). The Estate further contends that, although the videos are publicly available, they had no way of knowing which videos, if any, Defendants would aim to admit into evidence if undisclosed. Id.

The Federal Rules of Civil Procedure do not grant an automatic exception to disclosure rules for publicly available information. See Shatsky v. Syrian Arab Republic, 312 F.R.D. 219, 223 (D.D.C. 2015). Doing so would require parties to "scour the public domain" for information the opposing party could potentially use against them throughout litigation. Id. at 224. Thus, parties must provide notice through disclosure of evidence "central to its claims or defenses," even if it is publicly available. See Martino v. Kiewit N.M. Corp., 600 Fed. Appx. 908, 911 (5th Cir. 2015).

The U.S. Court of Appeals for the District of Columbia's Shatsky opinion held that plaintiffs were required to disclose information during the discovery period even though it was publicly available. See Shatsky, 312 F.R.D. at 223. Thus, discovery sanctions were necessary to prevent prejudice to the opposing party. Id. at 225. The Court determined discovery violations cause prejudice if they prevent the opposition "from timely reviewing relevant evidence." Id. at 226. Quoting the standard in Shatsky, the U.S. District Court for the District of Columbia in Stewart v. District of Columbia then held that the plaintiff was required to produce all documents during discovery which she intended to use to support her claims and which the defendant's requests encompassed. See Stewart v. District of Columbia, 2019 WL 4261067, at *6 (D.D.C. 2019). The documents in question in Stewart were either publicly available or in the opposing party's possession but were nonetheless precluded from evidence. Id. As in Shatsky and Stewart, discovery sanctions provide the appropriate means of preventing prejudice to the Estate. Here, the disclosure of the YouTube videos would cause prejudice in that the Estate would not have the opportunity to prepare responses to Defendants' claims regarding the videos. (Docket 483 at 17).

Similarly, in Martino, the plaintiff failed to disclose a contract during the...