Wavetronix LLC v. Iteris, Inc.

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION

WAVETRONIX LLC, § Plaintiff, § § W-21-CV-00899-ADA-DTG v. § § ITERIS, INC., § Defendant. §

ORDER ON DISCOVERY DISPUTE OF DECEMBER 13, 2023 The Parties submitted a discovery dispute chart contesting the propriety of reply reports served by Wavetronix. The reports were served by Wavetronix after the experts—Michael Jenson and Barry Bell—had been deposed. Before the depo, Wavetronix warned Iteris that reply reports would be forthcoming. Wavetronix contends that the reply reports were proper under the Federal Rules of Civil Procedure. Wavetronix contends that Rule 26(a)(2)(D)(ii) allows the replies because it reads, “[a]bsent a stipulation or court order,” expert reports “intended solely to contradict or rebut evidence on the same subject matter by another party” must be served “within 30 days after the other party’s disclosure.” The Court finds Wavetronix’s reply reports of Michael Jenson and Barry Bell are improper and grants Iteris request to strike the reports. Wavetronix’s reading of Rule 26 misreads the rules and would create a never-ending right to filing rebuttal reports. See Familias Unidas Por La Educacion v. El Paso Indep. Sch. Dist., No. EP-20-CV-170-DB, 2022 WL 2906505, at *4 (W.D. Tex. July 22, 2022) (citing Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage Commission, 1:15-cv-134-RP, 2017 WL 9480314, at *2 (W.D. Tex. May 22, 2017)). Wavetronix never requested leave to serve the reports and did not provide the reports before the experts were deposed. The Court GRANTS Iteris’s requested relief and STRIKES the December 4, 2023 Sur- Rebuttal Expert Reports of Michael Jensen and Barry Bell.

SIGNED this 4th day of January, 2023.

& -_ E ILAND UNITED STATES MAGISTRATE JUDGE

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Issue Iteris’s Position Wavetronix’s Position December 4, 2023 Sur- “To avoid drowning in sur-rebuttal reports, sur-sur- The rebuttal expert reports of Michael Jenson and Rebuttal Expert rebuttal reports and so forth, courts must impose a Barry Bell are authorized and timely under Federal Reports of Michael limit. The Federal Rules do just that: a testifying Rule of Civil Procedure 26(a)(2)(D)(ii). In relevant Jensen and Barry Bell expert is required to produce a single report part, Rule 26(a)(2)(D)(ii) provides that, “[a]bsent a including ‘a complete statement of all opinions the stipulation or court order,” expert reports witness will express.’” Wal-Mart Stores, Inc. v. “intended solely to contradict or rebut evidence on TABC, 2017 WL 9480314 at *2 (W.D. Tex. May 22, the same subject matter by another party” must be 2017)). served “within 30 days after the other party’s disclosure.” The Court’s scheduling orders have provided for two rounds of expert reports: opening and rebuttal. Dkt. Jensen’s and Bell’s rebuttal expert reports were 42, 134. On July 3, 2023, Wavetronix served two submitted “solely to contradict or rebut” the Rule opening reports (Jensen and Bell). On November 2, 26(a)(2)(B) expert reports of Iteris’s technical and 2023, Iteris served two rebuttal reports (Abbas and damage experts and were timely served. As such Mody). Iteris took depositions of both Jensen and they are authorized “rebuttal” reports within the Bell on November 29 and December 1. meaning of Rule 26(a)(2)(D)(ii) and not, as characterized by Iteris, unauthorized “sur-rebuttal” Immediately after those depositions were taken, reports. Wavetronix served sur-rebuttal reports of Jensen and Bell on December 4, 2023. Mr. Jensen’s sur-rebuttal The Court’s scheduling orders set two deadlines report “review[s], analyze[s], and respond[s] to the for expert reports. One for issues for which the Abbas Rebuttal Report.” (Jensen ¶2.) Similarly, Mr. parties had the burden of proof and one for issues Bell’s sur-rebuttal report “responds to the opinions on which the parties did not have the burden of presented in the November 2, 2023, expert report of proof. As the scheduling order did not set a ... Mody.” (Bell ¶5.) deadline for Wavetronix’s rebuttal of Iteris’s expert disclosures, Rule 26(a)(2)(D)(ii) governs. Gibson None of the Court’s scheduling orders allowed sur- Brands, Inc. v. Armadillo Distribution Enterprises, rebuttal reports, Wavetronix did not seek leave to Inc., 2020 WL 6581868 *3-4 (E.D. Tex. Nov. 10, serve such reports, and it delayed service until after 2020) (“When there is no specified deadline [for Jensen and Bell’s depositions. Accordingly, both rebuttal reports], Rule 26(a)(2)(D) fills in the gaps should be stricken as improper. and dictates when parties must provide certain expert disclosures. Specifically, the Rule dictates 3 of 5 Case 6:21-cv-00899-ADA-DTG Document 144 Filed 01/04/24 Page 4 of 5

To avoid exclusion, Wavetronix “must demonstrate that rebuttal expert disclosures are due 30 days that its new expert report[s] [are] either (1) an after the other party’s disclosure.”); Smith v. appropriate supplement or correction under Rule Christus Health, 2011 U.S. Dist. LEXIS 170302 26(e) or (2) was substantially justified or harmless *6-7 (E.D. Tex. July 25, 2011) (“[T]he Court’s under Rule 37(c).” Wal-Mart at *2. ‘order is silent on timing of rebuttal disclosures, which means that the Federal Rules Govern.’”). First, the sur-rebuttal reports are not supplements under Rule 26(e) as both reports concede that they None of the arguments, rules, or case law were served to respond to the rebuttal opinions of submitted by Iteris are relevant here, including the Abbas and Mody. Rule 26(e) “contains no provision Wal-Mart case it relies on, because they all relate allowing a party to amend its original disclosure for to Rule 26(e) supplemental expert reports and the the purpose of refuting arguments made in rebuttal.” standards for dealing with untimely expert reports Wal-Mart at *2. under that rule. Iteris’s position statement concedes that the reports at issue were served to Second, Wavetronix cannot meet its burden to rebut the opinions of Iteris’s experts and are not demonstrate that the sur-rebuttal reports are either supplemental reports. substantially justified or harmless under Rule 37(c). See Sierra Club, Lone Star Chapter v. Cedar Point The Wal-Mart court recognized the scheduling Oil Co. Inc., 73 F.3d 546, 572 (5th Cir. 1996). Like order in that case and Rule 26(a)(2)(D)(ii), the excluded sur-rebuttal report in Wal-Mart, “anticipate the need for parties to … serve rebuttal “[s]triking the new report[s] will not prevent reports.” Walmart-Stores, *2. The Wal-Mart [Wavetronix]’s experts from testifying to any of the scheduling orders provided for plaintiffs’ reports, opinions contained in their original report[s].” Wal- defendants’ reports, and rebuttal reports for all Mart at *3. Additionally, if not excluded, Iteris will parties. Id., Dkts 32, 54, 151. Jensen’s and Bell’s undeniably be prejudiced as “[e]ven if [Iteris] were rebuttal expert reports correspond to rebuttal able to re-depose [Wavetronix]’s experts and to reports Wal-Mart recognized under the court’s amend or supplement its rebuttal report[s], such scheduling order and Rule 26(a)(2)(D)(ii). efforts would be costly.” Id. Also, this Court has expressed (Dkt. 131) no further continuations to the Iteris cannot complain about having taken the case schedule. See id. at *4. Finally, Wavetronix can depositions of Jensen and Bell before it received offer no explanation for its improper reports because their rebuttal reports. On September 19, 2023, “a desire to refute a rebuttal report is not a proper Wavetronix told Iteris it was taking the position basis for and therefore does not excuse filing an that under Rule 26(a)(2)(D)(ii) it was permitted to 4 of 5 Case 6:21-cv-00899-ADA-DTG Document 144 Filed 01/04/24 Page 5 of 5

untimely expert report.” Id.; Daedalus Blue LLC v. file rebuttal reports within 30 days of Iteris’ SZ DJI Tech. Co., Ltd., 2022 WL 831619 at *7 experts’ reports and warned Iteris to schedule its (“[S]upplemental reports are not vehicles by which expert depositions for a date after any such experts can rework their initial reports to respond to rebuttal reports may be served. problems that their adversaries aptly address.”). All four Sierra Club factors counsel against allowing Striking Wavetronix’s rebuttal expert reports Wavetronix’s unauthorized, improper sur-rebuttal would potentially allow Iteris to object under Rule reports. 37(c) to the admission at trial of rebuttal opinions addressing issues newly raised in Iteris’s expert Relief: Order that the December 4, 2023 Sur- reports. Rebuttal Expert Reports of Michael Jensen and Barry Bell be stricken. Relief: Iteris’s motion to exclude the December 4, 2023, Rebuttal Expert Reports of Michael Jensen and Barry Bell be denied.

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