Morsell v. Symantec Corporation
Civil Action No. 2012-0800
D.D.C.Jan 31, 2022Background
- The United States (with state plaintiffs and relator) alleges NortonLifeLock (formerly Symantec) violated the False Claims Act by misrepresenting prices/discounts in CSP disclosures and failing to apply Price Reduction Clause protections, causing overcharges to government purchasers.
- Norton produced expert Avram Tucker and the Government used Dr. David Gulley; the Court previously limited Tucker from offering opinions that impermissibly criticize Gulley’s reliance on counsel-provided assumptions or resolve legal-contract issues.
- The parties filed revised demonstrative exhibits after that ruling; Norton served a supplemental set in October 2021 that the Government says reintroduces excluded or previously undisclosed Tucker opinions.
- The Government moved in limine to exclude specific demonstrative slides/bullets (arguing Rule 26 and prior limine rulings were violated); Norton opposed and filed a cross-motion to amend the demonstrative-exhibit scheduling rule (seek 72-hour advance disclosure).
- The Court, sitting for a bench trial, evaluated whether particular demonstratives (Slides 17, 18, 19, 20, 89 and certain CSP-damage statements) were impermissible or undisclosed and whether the scheduling order should be changed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether bullets criticizing Gulley’s assumptions (Slides 17 & 19) are impermissible criticism of reliance | U.S.: These reintroduce excluded criticism of Gulley’s reliance on counsel and should be excluded | Norton: Language critiques the reasonableness of assumptions themselves, not reliance | Allowed — Court declined to exclude these bullets in a bench trial (distinguishes critique of assumptions from critique of reliance) |
| Whether Slide 20 Bullet 6 (stating Gulley’s assumptions about what Symantec was required to do are unrealistic) should be excluded | U.S.: Poses legal conclusions about contract obligations and revisits excluded topics | Norton: Characterizes it as business/economic critique of assumptions | Excluded — Court ordered Norton to strike Bullet 6 (crosses into forbidden legal conclusions) |
| Whether Slide 89 (damages tabulation) is an undisclosed expert opinion violating Rule 26 | U.S.: Slide 89 presents new calculations/process not in Tucker’s reports and deprived U.S. of deposition opportunity; thus must be excluded under Rule 37/26 | Norton: Slide is a summary of Gulley’s numbers; method simple and harmless | Excluded — Court found Tucker failed to disclose the new process/totals, not substantially justified or harmless; Slide 89 excluded |
| Whether Slide 18 Bullet 3 (defining industry meaning of “practice”) is an improper new opinion | U.S.: Tucker lacks industry-wide research to define term; opinion was not properly disclosed | Norton: Tucker previously disclosed similar views and relies on experience; reworded to avoid legal conclusion | Allowed — Court permitted the bullet, noting ambiguity and that bench trial allows discounting of weight if beyond expertise |
| Whether statements that Gulley’s PRC calculations do not represent CSP disclosure damages must be excluded | U.S.: This is an undisclosed, non-expert legal/fact opinion outside Tucker’s scope | Norton: Tucker previously articulated framework in reports/deposition; opinion disclosed sufficiently | Allowed — Court concluded Tucker disclosed the framework adequately and declined to exclude (weight, not admissibility) |
| Whether the Court should modify the scheduling order to require final demonstratives 72 hours before use | Norton: Shortened rolling deadline promotes judicial economy and reflects trial realities | U.S.: Parties met existing deadlines; no specific need or equitable basis to change general deadline | Denied — Court saw no good cause to broadly change the order and emphasized advance exchange purpose |
Key Cases Cited
- Luce v. United States, 469 U.S. 38 (1984) (district courts may use motions in limine to manage trials)
- Minebea Co., Ltd. v. Papst, 231 F.R.D. 3 (D.D.C. 2005) (expert summaries/exhibits used to support opinions must be disclosed with the expert report)
- Grimes v. District of Columbia, 794 F.3d 83 (D.C. Cir. 2015) (broad district court discretion to manage docket and trial order)
- DL v. District of Columbia, 109 F. Supp. 3d 12 (D.D.C. 2015) (gatekeeping for expert evidence is relaxed where judge is factfinder in a bench trial)
- Halcomb v. Washington Metro. Area Transit Auth., 526 F. Supp. 2d 24 (D.D.C. 2007) (Rule 26 prevents experts from holding new opinions for trial surprise)
- Dahlberg v. MCT Transp., LLC, [citation="571 F. App'x 641"] (10th Cir. 2014) (affirming exclusion of expert demonstratives for Rule 26 noncompliance)