United States District Court, D. Nebraska
MEMORANDUM AND ORDER
LYLE E. STROM, Senior District Judge.
This matter is before the Court on the motion (Filing No. 270) of plaintiff Prism Technologies, L.L.C. ("Prism") to strike the fourth amended initial disclosures and late-disclosed evidence of defendant AT&T Mobility, L.L.C. ("AT&T"). The motion has been fully briefed (Filing No. 273, Filing No. 301, Filing No. 314). After review of the motions, briefs, indices of evidence, and relevant case law, the Court finds as follows.
AT&T seeks to introduce a third-party trial witness, two documents, and an expert report which contains information about which AT&T once claimed it lacked knowledge (Filing No. 273, at 4). These disclosures come three months after the close of discovery and one month after Prism served its infringement report ( Id. at 5).
Federal Rule of Civil Procedure 26(a)(1)(A)(i) requires parties to disclose "the name... 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...." Rule 26(e) also requires a party "supplement or correct its disclosure or response... in a timely manner...."
When a party fails to provide information or identify witnesses in accordance with Rule 26, Federal Rule of Ciivl Procedure 37(c) prevents the party from relying on such information or witness at trial "unless the failure was substantially justified or  harmless." See also Giard v. Burlington No. Santa Fe Ry. Co., No. CV-12-113, 2014 WL 37687, *1, *5 (D. Mont. Jan 6, 2014). AT&T bears the burden "... of establishing that a failure to disclose was substantially justified or harmless...." Mitchell v. Ford Motor Co., 318 Fed.Appx. 821, 824 (11th Cir. 2009).
Syniverse is a third-party, AT&T vendor which provides roaming interconnection services to AT&T. Prism decided not to depose Syniverse but AT&T insisted upon a deposition. Syniverse disclosed Mr. Neal as the witness and produced documents in May 2014. Also, AT&T amended its disclosures in May 2014. The deposition occurred in June 2014. Prism does not object to AT&T's use of the deposition video or transcript. However, Prism objects to AT&T's use of Mr. Neal for live witness testimony which exceeds the scope of the parties' limitation. Filing No. 273, at 7.
Prism claims the parties limited the scope of the deposition to those documents Syniverse produced. In support, Prism cites Prism's objection in Mr. Neal's deposition. Filing No. 273, at 7 (citing Filing No. 273-1, at 4, Neal Tr. 76:23-77:6). That objection does not evidence an agreement to limit the deposition to the documents. Filing No. 273-1, at 4, Neal Tr. 76:23-77:6.
AT&T seeks to offer Mr. Neal's testimony to rebut Prism's expert report, specifically, he wishes to contradict his former statement that Syniverse's backbone system is an internet protocol network, an important question of fact in this case. AT&T claims Mr. Neal was not informed of the Court's Markman order construing the term internet protocol network.
The Court finds Mr. Neal can testify at trial concerning Syniverse documents. Furthermore, Mr. Neal may offer rebuttal testimony regarding his own statements in the deposition as to whether he competently testified in his deposition. Prism will face limited, and not unexpected, prejudice in allowing Mr. Neal to appear live to testify on these limited issues. First, Prism does not object to the Neal's testimony regarding the documents Syniverse produced to Prism because Prism does not object to the playing of Mr. Neal's deposition at trial. Second, AT&T made a specific objection regarding the very testimony AT&T seeks to offer as a rebuttal. See Filing No. 301 ("[T]he Court has issued a construction of IP network, which I don't think Mr. Neal is even aware of. But go ahead and answer the question, to the best of your ability."). As the Court understands AT&T's justification for calling Mr. Neal, AT&T wishes to clarify that Mr. Neal did not in fact understand a question to which he offered an answer. This goes directly to his ...