Deseret Management Corp. v. United States
97 Fed. Cl. 272
Fed. Cl.2011Background
- Court ordered deadlines for designating and serving expert reports in September 2010, with no further enlargements.
- Defendant sought leave to designate Robin Flynn as lead expert and then designated her as a rebuttal witness; filed a January 10, 2011 report.
- Plaintiff deposed Flynn on January 13, 2011; the court held oral argument on February 22, 2011.
- Plaintiff argued Flynn’s January report used a new theory (discounted cash flow) not allowed by RCFC 26 and the scheduling order.
- Court treated Flynn’s January report as rebuttal, not barred for timing, but analyzed whether it was a true supplement.
- Court concluded the January report could not be excluded solely for timing and imposed limited sanctions, including expenses and a second deposition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Flynn's January 10, 2011 report is proper rebuttal | Bond’s method contradicted; January report valid rebuttal. | January report introduces a new theory beyond prior scope. | January report properly serves as rebuttal. |
| Whether the January report is a permissible supplement | It is a true supplement under 26(e) to correct/complete earlier disclosure. | It offers a new theory and values not in prior report; not a true supplement. | Unnecessary to resolve; delay not excluding the report. |
| Whether to exclude the late-disclosed report under RCFC 37(c)(1) and impose sanctions | Delayed but harmless; no exclusion. | Late disclosure warrants exclusion or heavier sanctions. | Exclusion not warranted; limited sanctions appropriate. |
| Appropriate sanctions and discovery plan following ruling | Plaintiff should recover costs; continue discovery. | Costs should be limited; new schedule necessary. | Defendant to reimburse plaintiff's response costs; second Flynn deposition allowed; joint status and scheduling order to follow. |
Key Cases Cited
- Crowley v. Chait, 322 F.Supp.2d 530 (D.N.J. 2004) (rebuttal evidence admissible to explain or disprove adverse testimony)
- Tenbarge v. Ames Taping Tool Sys., Inc., 190 F.3d 862 (8th Cir. 1999) (RCFC 37 sanctions and disclosure factors guidance)
- Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., Inc., 73 F.3d 546 (5th Cir. 1996) (supplemental disclosures not to extend deadlines improperly)
- T.C. Sys. Inc. v. Town of Colonie, 213 F.Supp.2d 171 (N.D.N.Y. 2002) (rebuttal analyses may include new methods to contradict expert)
- In re REMEC Inc. Sec. Litig., 702 F.Supp.2d 1202 (S.D. Cal. 2010) (new analysis in rebuttal allowed when it contradicts lead opinion)
- Sancom, Inc. v. Qwest Commc’ns Corp., 683 F.Supp.2d 1043 (D.S.D. 2010) (rebuttal may address same subject matter with different methods)
- Gallagher v. S. Source Packaging, LLC, 568 F.Supp.2d 624 (E.D.N.C. 2008) (supplemental disclosures not to serve as default extension of deadlines)