Shukh v. Seagate Technology, LLC

295 F.R.D. 228, 86 Fed. R. Serv. 3d 1221, 2013 WL 5467215, 2013 U.S. Dist. LEXIS 140159
CourtDistrict Court, D. Minnesota
DecidedSeptember 30, 2013
DocketCivil No. 10-404 (JRT/JJK)
StatusPublished
Cited by60 cases

This text of 295 F.R.D. 228 (Shukh v. Seagate Technology, LLC) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shukh v. Seagate Technology, LLC, 295 F.R.D. 228, 86 Fed. R. Serv. 3d 1221, 2013 WL 5467215, 2013 U.S. Dist. LEXIS 140159 (mnd 2013).

Opinion

MEMORANDUM OPINION AND ORDER

JOHN R. TUNHEIM, District Judge.

In February 2010, Plaintiff Alexander M. Shukh filed this action against Defendants Seagate Technology, LLC, Seagate Technology, Inc., Seagate Technology, and Seagate Technology, PLC (collectively, “Seagate”), alleging numerous claims arising out of Sea-gate’s employment and termination of Shukh. After a year of litigation, six of Shukh’s thirteen claims survived a motion to dismiss, and the Court allowed Shukh’s claims based on correction of inventorship for six United States patents, fraud, and employment discrimination to go forward. The parties then served expert reports related to Shukh’s alleged damages and his claims that he invented certain patented items while working for Seagate.

In December 2012 and January 2013 Shukh served thirteen subpoenas on two of Seagate’s experts — Dr. Christopher H. Bajorek and Ms. Angela Heitzman — and other third parties, seeking discovery related to testimony given by Dr. Bajorek and Ms. Heitzman in other matters as well as information about Dr. Bajorek’s interactions with his past employers. Seagate moved for a protective order with respect to five of these subpoenas as well as a request for documents under Federal Rule Civil Procedure 34. [231]*231United States Magistrate Judge Jeffrey J. Keyes granted Seagate’s motion, finding that the discovery sought by Shukh’s subpoenas and Rule 34 request was not relevant to the issues remaining in Shukh’s case and exceeded the bounds of appropriate expert discovery. Shukh objects to the Magistrate Judge’s entry of a protective order requiring Shukh to withdraw the challenged subpoenas and Rule 34 request. Shukh also brings a separate motion to exclude the expert report and testimony of Dr. Bajorek.

The Court will affirm the Magistrate Judge’s decision to grant a protective order, because the determination that the information sought is not relevant and is outside the scope of appropriate expert discovery was neither clearly erroneous nor contrary to law. Additionally, the Court will deny Shukh’s motion to exclude the report and testimony of Dr. Bajorek because Seagate’s failure to initially disclose other cases in which Dr. Bajorek provided expert testimony was timely corrected and harmless.

BACKGROUND1

In 1997 Shukh left Belarus, his country of national origin, to work for Seagate. (Third Am. Compl. ¶¶ 22-23, 33, 49-50, Jan. 17, 2012, Docket No. 268.) Shukh was employed by Seagate from September 1997 until he was terminated in early 2009. (Fourth Deel. of Elizabeth Cowan Wright, Ex. 1 (Dep. of Alexander Shukh (“Shukh Dep.”) 31:3-9), June 29, 2012, Docket No. 316.) Shukh held various positions at Seagate as an engineer involved in the development of magnetic recording heads for hard disk drives. (Shukh Dep. 492:14-493:2; Fourth Deel. of Constantine John Gekas, Exs. 12, 13 at 1, July 20, 2012, Docket No. 324.) During his tenure at Seagate, Shukh was named as an inventor on seventeen Seagate patents, and several of his inventions have been incorporated into Sea-gate products. (Shukh Dep. 415:9-13; Fourth Gekas Deck, Ex. 13 ¶¶ 14-15.) Shukh’s claims in the present litigation arise primarily out of his alleged uncredited invention of several Seagate patents and the circumstances surrounding his termination. (Shukh Dep. 48:21-50:24; Third Am. Compl. ¶¶ 122,196.)

1. SEAGATE’S EXPERT REPORTS

After a year of litigation, six of Shukh’s thirteen claims survived a motion to dismiss, and this Court allowed Shukh’s claims for correction of inventorship of six United States patents, fraud based on misrepresentations about whether Shukh’s alleged inventions would be the subject of Seagate patents, national origin discrimination, and retaliation to go forward. Shukh v. Seagate Tech., LLC, Civ. No. 10-404, 2011 WL 6003951 (D.Minn. Nov. 30, 2011). Pursuant to an amended scheduling order, Seagate disclosed expert reports from Dr. Christopher H. Bajorek and Ms. Angela Heitzman related to these claims on November 30, 2012. (Am. Pretrial Scheduling Order, May 2, 2012, Docket No. 309.)

A. Dr. Bajorek

Seagate retained Dr. Bajorek as a rebuttal expert to provide opinions relating to the inventorship of the United States patents at issue. (Deck of Christopher H. Bajorek ¶ 1, Jan. 10, 2013, Docket No. 394.)

On November 30, 2012, Seagate served Shukh with Dr. Bajorek’s rebuttal expert report. (See Fifth Deck of Constantine John Gekas, Ex. 7, Jan. 16, 2013, Docket No. 402.) The report failed to list the three cases in which Dr. Bajorek had previously been retained as an expert, as required by Federal Rule of Civil Procedure 26(a)(2)(B)(v). (See Fifth Gekas Deck, Ex. 5.) On December 5, 2012, Seagate amended its disclosures to correct a mislabeling of one copy of Dr. Bajorek’s report as non-confidential. (Id., Ex. 8.) [232]*232On December 21, 2012, Seagate sent Shukh an electronic version of the relabeled report. (Id., Ex. 9.)2

On January 2, 2013, after discovering the omission of the cases in which Dr. Bajorek had previously been retained as an expert, Seagate supplemented Dr. Bajorek’s report with an addendum listing the three cases. (Id., Ex. 15; Second Deck of Calvin L. Litsey ¶¶ 3-4, Feb. 15, 2013, Docket No. 424.) Sea-gate’s January 2, 2013 letter accompanying the addendum stated that the addendum had been omitted “inadvertently.” (Fifth Gekas Deck, Ex. 15; see also Second Litsey Deck ¶ 2.) The addendum was served within the window for expert discovery, which was scheduled to close February 1, 2013. (Am. Pretrial Scheduling Order.) Additionally, Seagate disclosed the list of Dr. Bajorek’s previous cases before Dr. Bajorek’s deposition, which occurred on January 24, 2013. (Fifth Deck of Jeya Paul, Ex. 8, Feb. 15, 2013, Docket No. 425.) Shukh did not seek an extension of time for discovery based on the delayed disclosure of Dr. Bajorek’s previous expert cases. Shukh did, however, ask questions at Dr. Bajorek’s deposition related to the cases disclosed on January 2, 2013. (Id, Ex. 8 at 19-34, 67-90,101-04.)

B. Heitzman

Seagate retained Ms. Heitzman as an expert to render an opinion on the nature and extent of Shukh’s damages. In particular, Shukh claims as part of this lawsuit that he was damaged by Seagate’s conduct in terminating his employment and allegedly blacklisting him, because he was unable to secure other, comparable employment. (See, e.g., Third Am. Comph ¶¶ 259-262.) Ms. Heitzman’s expert report examined whether Shukh engaged in an effective job search after Seagate terminated his employment. (Eighth Deck of Constantine John Gekas, Ex. 3 at 5, Apr. 19, 2013, Docket No. 482.) After reviewing Shukh’s qualifications, the efforts he undertook to find employment, and available jobs, Ms. Heitzman concluded that “Dr. Shukh’s job search effort was not reasonable,” and had he “engaged in a reasonable job search, he should have been able to locate employment paying at a similar rate to his Seagate earnings within 6-12 months of his layoff.” (Id, Ex. 3 at 18.)

Heitzman’s report also included the disclosures required of expert witnesses by Federal Rule of Civil Procedure

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295 F.R.D. 228, 86 Fed. R. Serv. 3d 1221, 2013 WL 5467215, 2013 U.S. Dist. LEXIS 140159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shukh-v-seagate-technology-llc-mnd-2013.