Morsell v. Symantec Corporation ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
ex rel. LORI MORSELL, et al., :
:
Plaintiffs, : Civil Action No.: 12-800 (RC)
:
v. : Re Document Nos.: 280, 283
:
NORTONLIFELOCK, INC. :
(f/k/a SYMANTEC CORPORATION), :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART THE UNITED STATES’ MOTION IN LIMINE;
DENYING NORTON’S CROSS-MOTION TO MODIFY SCHEDULING ORDER
I. INTRODUCTION
This case concerns the Federal Government’s Federal False Claims Act (“FCA”) claims,
and the related state claims of California, Florida, and Relator Morsell on behalf of New York
against Defendant NortonLifeLock Incorporated (“Norton”). 1 A bench trial before this Court is
currently scheduled to begin February 28, 2022. See Min. Order of Oct. 7, 2021. The pending
cross-motions seek to exclude certain demonstrative exhibits and to modify the pretrial
scheduling order with respect to demonstrative exhibits. See United States’ Mot. in Limine to
Exclude Certain Demonstrative Exs. Identified by Norton (“Gov’t Mot.”), ECF No. 280;
Norton’s Mem. P. & A. Opp’n United States’ Mot. in Limine & Supp. Cross Mot. to Modify
Scheduling Order (“Norton Mot.”), ECF No. 283-1. The United States filed a consolidated
1
The Court stated in its opinion regarding motions for summary judgment that it would
refer to the company previously known as Symantec Corporation by its new name going
forward. United States ex rel. Morsell v. Symantec Corp., 471 F. Supp. 3d 257, 266 n.1 (D.D.C.
2020). However, the Court has not replaced instances of “Symantec” in quotations.
Reply and Opposition, see United States’ Reply in Supp. Mot. in Limine to Exclude Certain New
Demonstrative Exs. & Opp’n Norton’s Cross-Mot. to Revise Court-Ordered Schedule after the
Fact (“Gov’t Reply & Opp’n”), ECF Nos. 287–88, and Norton filed a reply, see Def.
NortonLifeLock Inc.’s Reply in Supp. Cross-Mot. to Revise Demonstrative Schedule (“Norton
Reply”), ECF No. 289. For the reasons explained herein, the Court will grant in part and deny in
part the Government’s motion in limine and deny Norton’s Cross-Motion to Modify the
Scheduling Order.
II. FACTUAL & PROCEDURAL BACKGROUND
The full background of this case has been laid out in previous opinions. See United
States ex rel. Morsell v. Symantec Corp., 471 F. Supp. 3d 257, 267–76 (D.D.C. 2020); United
States ex rel. Morsell v. Symantec Corp., No. 12-cv-800, 2020 WL 1508904, at *1–3 (D.D.C.
Mar. 30, 2020); United States ex rel. Morsell v. NortonLifeLock, Inc., No. 12-cv-800, 2021 WL
3363446, at *1–2 (D.D.C. Aug. 3, 2021). To briefly summarize, the Government and the States
claim that Norton violated the FCA, common law, state false claims acts, and state contract law
when, “in the process of setting pre-negotiated maximum prices for government purchasers with
the General Services Administration, Symantec overcharged them by misrepresenting the
existence of certain prices and discounts that were available to Symantec’s private customers and
by consequently failing to offer government purchasers the same low prices these customers
received.” Morsell, 471 F. Supp. 3d at 267. Norton was “required to make certain
representations and to provide details about their discounting policies” in their Commercial Sales
Practices Format (“CSPs”) disclosures, id. at 269, which were part of Norton’s contract, see id. at
281–82. Norton’s contract also contained a Price Reduction Clause (“PRC”), which “ensures
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that the Government’s prices are reduced if [an agreed-upon] customer or category of customers
is given lower pricing or increased discounts.” Id. at 270.
On August 25, 2021, this Court issued an opinion granting in part and denying in part the
parties’ various motions in limine. United States ex rel Morsell v. NortonLifeLock, No. 12-cv-
800, ECF No. 263 (D.D.C. Aug. 25, 2021) [hereinafter “Mem. Op.”]. In relevant part, the Court
granted the Government’s motion to exclude the following evidence offered by Norton’s expert
Mr. Tucker: “opinions regarding whether sales for products having stock-keeping-unit numbers
(“SKUs”) not found on the relevant contract’s pricelist should be included for damages; . . .
opinions regarding which sales are appropriate to consider in damages calculations based on
their terms and conditions; . . . whether order-level discount calculations are required in this case;
. . . [and] opinions criticizing Government expert Dr. David A. Gulley merely for assuming
liability for damages relating to the resellers’ and distributors’ sales.” Id. at 2.
Following that ruling, a final pretrial conference was held on September 14, 2021. 2 At
that hearing, the parties indicated that they would each be revising their previously filed
demonstrative exhibits in light of the Court’s motion in limine rulings. See 9/14/21 Tr. at 5:15–
20, ECF No. 282. In accordance with the deadline set by the Court at that hearing, id. at 6:6–8,
the parties filed revised demonstrative exhibits on September 22, 2021. See Notices of Filing
Revised Demonstrative Exs., ECF Nos. 276–77. 3 Both parties agree that the demonstratives
contested here correspond to the supplemental production served by Norton on the U.S. on
2
Trial in this matter was at that time scheduled to begin on September 27, 2021, but was
postponed in light of the ongoing health risks of the COVID-19 pandemic. See Minute Entry of
September 20, 2021 hearing (granting Defendant’s Motion to Continue Bench Trial, ECF No.
270).
3
California also submitted its proposed demonstrative exhibits on that date. See Notice
of Filing Demonstrative Exs., ECF No. 274.
3
October 9, 2021, which are found at Ex. 1 of the Government’s Motion in Limine. See Ex. 1 of
Gov’t Mot. (“Oct. Demonstratives”), ECF No. 280-1. 4
III. LEGAL STANDARD
“While neither the Federal Rules of Civil Procedure nor the Federal Rules of [E]vidence
expressly provide for motions in limine, the Court may allow such motions ‘pursuant to the
district court’s inherent authority to manage the course of trials.’” Barnes v. District of
Columbia, 924 F. Supp. 2d 74, 78 (D.D.C. 2013) (quoting Luce v. United States, 469 U.S. 38, 41
n.4 (1984)). “Motions in limine are designed to narrow the evidentiary issues at trial.” Williams
v. Johnson, 747 F. Supp. 2d 10, 14 (D.D.C. 2010). But “a motion in limine should not be used to
resolve factual disputes or weigh evidence.” C & E Servs., Inc. v. Ashland Inc., 539 F. Supp. 2d
316, 323 (D.D.C. 2008) (citation omitted). “Additionally, the gatekeeping requirement is
substantially relaxed when the judge will serve as factfinder in a trial.” DL v. District of
Columbia, 109 F. Supp. 3d 12, 28 (D.D.C. 2015).
Federal Rule of Civil Procedure 37(c) provides that if a party “fails to provide
information or identify a witness as required by Rules 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence. . . at a trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The Rule also permits the Court to impose
other appropriate sanctions in addition to, or instead of, exclusion. See id.; see also Sherrod v.
McHugh, 334 F. Supp. 3d 219, 269 (D.D.C. 2018) (“A Rule 37(c)(1) exclusion, however, is an
4
Although this additional production of demonstrative exhibits occurred after and in
addition to the demonstratives filed with the Court on the September 22, 2021 deadline, the
Government does not take issue with this supplemental production. See Gov’t Mot. at 1, n.1.
Finding no prejudice, and in the interest of avoiding further disputes, the Court will treat the
October demonstratives as the operative submission of Norton’s demonstrative exhibits and
order Norton to file those exhibits in a separate docket entry.
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‘extreme sanction’ that should be used sparingly.” (quoting Richardson v. Korson, 905 F. Supp.
2d 193, 200 (D.D.C. 2012))). A party proposing to admit evidence that it failed to disclose
pursuant to Rules 26(a) and (e) “bears the burden of showing substantial justification and lack of
harm” to the opposing party. Norden v. Samper, 544 F. Supp. 2d 43, 49–50 (D.D.C. 2008)
(citing Coles v. Perry, 217 F.R.D. 1, 5 (D.D.C. 2003)).
Rule 26(a) requires, among other things, pretrial disclosure of an expert report for any
retained expert that contains “a complete statement of all opinions the witness will express and
the basis and reasons for them,” including “the facts or data considered by the witness in forming
them” and “any exhibits that will be used to summarize or support” the expert’s opinions. Fed.
R. Civ. P. 26(a)(2)(B)(i)–(iii). “The Rule . . . prevents experts from ‘lying in wait’ to express
new opinions at the last minute, thereby denying the opposing party the opportunity to depose
the expert on the new information or closely examine the expert’s new testimony.” Halcomb v.
Washington Metro. Area Transit Auth., 526 F. Supp. 2d 24, 28 (D.D.C. 2007). Rule 26(a) also
requires “an identification of each document or other exhibit, including summaries of other
evidence—separately identifying those items the party expects to offer and those it may offer if
the need arises,” Fed. R. Civ. P. 26(a)(3)(A)(iii), made at least 30 days before trial “[u]nless the
court orders otherwise,” Fed. R. Civ. P. 26(a)(3)(B).
Local Civil Rule 16.4 provides that “the Court will issue a scheduling order governing
future proceedings in accordance with Fed. R. Civ. P. 16(b).” L. Civ. R. 16.4(a). The
scheduling order can be modified at any time by the Court, “upon a showing of good cause.” Id.Federal Rule of Civil Procedure 16(d) also directs that after any conference held under that Rule,
the Court “should issue an order reciting the action taken” that “controls the course of the action
unless the court modifies it.” Fed. R. Civ. P. 16(d).
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IV. ANALYSIS
A. The Government’s Motion in Limine
Both parties revised their previously filed demonstrative exhibits in light of this Court’s
rulings on the prior motions in limine. The Government has filed another motion in limine,
however, arguing that Norton took advantage of the narrow leave granted by the Court to
“introduce[] new opinions or opinions the Court excluded” in its demonstrative exhibits. Gov’t
Mot. at 8.
1. Slides with Excluded Portions of Mr. Tucker’s Opinion
The Court held in its prior opinion that because the Government’s expert, Dr. Gulley,
may permissibly rely on the assumptions provided by counsel, Norton’s expert Mr. Tucker may
not criticize him for having done so—specifically, for “assuming liability for damages relating to
the resellers’ and distributors’ sales.” Mem. Op. at 18. The Government now seeks to exclude
several specific bullet points from Norton’s October demonstratives that it believes include this
impermissible opinion by Mr. Tucker. Gov’t Mot. at 8–9.
a. Slide 17, Bullet 3 & Slide 19, Bullet 2
These two slides contain an identical phrase that the Government takes issue with:
“[s]ignificant portions of Dr. Gulley’s claimed PRC damages are based on unreasonable
assumptions from an economic and business standpoint . . . .” Gov’t Mot. at 9; Oct.
Demonstratives at 17, 19. For its part, Norton argues that this phrasing is permissible because
“Tucker’s opinions are directed at the reasonableness of [the] assumptions themselves and not
the fact that Gulley relied on them.” Norton Mot. at 14.
Norton’s distinction toes the line rather closely. If this were a jury trial, the Court would
likely be concerned about whether the jurors would be confused by the difference between
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criticizing an assumption and criticizing reliance on an assumption. But this is a bench trial, and
the Court is cognizant of the distinction. Accordingly, it will not exclude these bullet points.
b. Slide 20, Bullet 6
Similarly, Slide 20, Bullet 6 states that “Dr. Gulley’s assumptions of what Symantec was
required to do from 2007 to 2014 are unrealistic and are unreasonable from a business and
economic standpoint.” Gov’t Mot. at 9, Oct. Demonstratives at 20. Here, the Court is persuaded
that Norton has crossed the line. Although this sentence again criticizes the assumptions
themselves, it does so with the possessive, referring to them as “Dr. Gulley’s assumptions.” Id.And the rather broad phrase “what Symantec was required to do from 2007 to 2014,” while not
specifically referencing any excluded topics, can only be understood in context to mean what
Symantec was required to do by the contract—legal conclusions that the Court repeatedly
refused to allow Mr. Tucker to testify on in its prior opinion. See Mem. Op. at 13 (“Whether the
contract between GSA and Norton includes such products is not the proper subject of expert
testimony . . . .”); id. at 14 (“[Tucker’s] opinion on the economic importance of considering the
terms and conditions is also dependent on such a comparison being required by the contract. He
cannot properly testify to this legal conclusion.”) (cleaned up). Norton must therefore strike this
bullet point.
2. New Dr. Tucker Opinions
The U.S. also objects to specific portions of the October demonstratives that it claims
include previously undisclosed opinions by Dr. Tucker. Gov’t Mot. at 9–11. Specifically, it
objects to Slide 89 of the October demonstratives as “an entirely new damages tabulation” that
“cites no prior analysis of Mr. Tucker or any page or schedule of his three separate, voluminous
expert reports,” id. at 10, bullet point 3 of Slide 18 as “opin[ing] as to the industry definition of
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the term ‘practice’” for the first time, id., and various instances in the October demonstratives
with Mr. Tucker’s opinion that “the United States lacks a damages calculation for its theories of
liability based on Norton’s false commercial sales practices (‘CSP’) disclosures,” id. at 11. The
Court addresses each in turn.
a. Slide 89 (Damages Tabulation)
Slide 89, which did not appear in the previous demonstrative set, is titled “Detail of Dr.
Gulley’s base method FPR Review Damages Calculation.” Oct. Demonstratives at 89. It
reproduces a portion of one of the Government’s exhibits summarizing Dr. Gulley’s damages
calculations and breaks down the column of “calculated” damages to purportedly show how
much of that number came from certain techniques. Id. Norton contends that “[i]t is not a
damages tabulation at all, but a summary of Gulley’s work . . . . [that] illustrates the significant
impact that counsel’s directions and analyses had upon Gulley’s damages.” Norton Mot. at 18.
Both parties acknowledge that Mr. Tucker used data disclosed by Dr. Gulley to reach the
numbers on this slide and that he had not previously disclosed that process or those calculated
totals. Gov’t Mot. at 10; Norton Mot. at 18 & n.12. Both parties also acknowledge that Mr.
Tucker had previously disclosed his more general opinion “that a significant portion of Gulley’s
calculated damages are based on direction and analyses provided by government counsel rather
than upon his own expert analysis, and/or are improper extrapolations.” Norton Mot. at 18;
Gov’t Reply & Opp’n at 7–8.
The Court agrees with the Government that the failure to disclose this data calculation
was a violation of Rule 26(a), which required Mr. Tucker’s reports to contain “the basis and
reasons” for all of his opinions, “the facts or data considered” in forming them, and “any exhibits
that will be used to summarize or support” them. Fed. R. Civ. P. 26(a)(2)(B)(i–iii). Slide 89
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may provide illustrative support for Mr. Tucker’s more general previous opinion, but the fact
remains that he undertook a new process to reach those numbers. The new totals, the process he
undertook to reach those totals, and Slide 89 summarizing the totals, were all required to be
disclosed under Rule 26(a).
Failure to disclose this opinion means it cannot be used at trial “unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Norton implies that any failure
to disclose was harmless because Mr. Tucker used Dr. Gulley’s numbers to reach these totals,
and his “method for doing so [was] not complicated.” See Norton Mot. at 19. That is beside the
point. The Government is correct that it was entitled to “the opportunity to depose Mr. Tucker
on the process and assumptions used to generate these new figures,” and Norton’s untimely
disclosure deprived it of that opportunity. Gov’t Mot. at 10. Even a bench trial depends on the
processes of the adversarial system, and the inability of the opposing party to depose Mr. Tucker
on this opinion is not harmless. See also Dahlberg v. MCT Transp., LLC, 571 F. App’x 641,
647–48 (10th Cir. 2014) (affirming exclusion of an expert’s demonstrative exhibits for failure to
comply with Rule 26(a)); Lasher v. Wipperfurth, No. 16-cv-03158, 2018 WL 10911500, at *2
(D. Colo. Nov. 3, 2018) (“Plaintiff’s failure to provide a timely and meaningful disclosure of the
demonstrative exhibits is prejudicial . . . because it has deprived Defendant of the ability to
question the expert in deposition about the accuracy of and methodologies he employed while
creating the exhibits.”). Nor does Norton suggest any justification for not having disclosed this
particular opinion in Mr. Tucker’s prior reports. The Court therefore finds that Norton’s failure
to disclose the totals on Slide 89 was neither justified nor harmless.
The fact that Slide 89 is a “demonstrative exhibit” does not make a meaningful difference
here. Minebea, which both parties cite, is instructive. The court in that case concluded that the
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plaintiff “was under an obligation under Rule 26(a)(2)(B) . . . to provide any exhibits used as
summaries or illustrative aids in support of the opinions and conclusions contained in [the]
Expert Report at the time it submitted the report itself” and excluded new exhibits as untimely
even though they were demonstrative exhibits and intended for use at a bench trial. Minebea
Co., Ltd. v. Papst, 231 F.R.D. 3, 12 (D.D.C. 2005). It did agree to consider exhibits that had not
been filed with the court, “but only to the extent that they accurately reflect previously presented
information” in the first expert report. Id. at 13 (emphasis in original). The issue here is not only
that Slide 89 is new, but that the new calculations on it do not accurately reflect Mr. Tucker’s
previously disclosed report. The Court will therefore exclude Slide 89.
b. Slide 18, Bullet 3 (“Practice” as an Industry Term)
The Government next objects to the bullet point 3 on Slide 18, which reads: “I understand
that Symantec’s practice is to provide non-published discounts for various reasons. The
provision of a particular discount is not viewed in the industry as a practice, rather it is the
application of Symantec’s practice.” 5 Oct. Demonstratives at 18. That bullet point had
previously read: “The assertion that Symantec did not properly disclose its non-published
discounting practice is unsupported and incorrect.” July Demonstratives at 17, Ex. 2 of Gov’t
Mot., ECF No. 280-2. Norton’s position is that it made this change in order to comply with the
spirit of this Court’s prior opinion by disclaiming any legal conclusion about “whether
Symantec’s disclosures were proper” and instead focusing on general practices. Norton Mot. at
5
The first sentence of this bullet point, “I understand that Symantec’s practice is to
provide non-published discounts for various reasons,” does not appear to be the point of
contention between the parties. The Court takes no issue with it, as it is consistent with this
Court’s prior reasoning allowing experts to rely on and describe assumptions provided by
counsel. See Mem. Op. at 17 (allowing statements “more naturally read as reflecting
assumptions provided by [] counsel”).
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6. But the Government argues that Tucker’s invocation of what the industry defines as
“practice” is inappropriate given that he offered only his personal opinion of the term in his
report and depositions and admitted that he had not “conduct[ed] any industry-wide survey,
research, or work to form his opinions.” Gov’t Mot. at 10–11.
The second sentence of this bullet point is somewhat ambiguous as to whether it can in
fact be understood as defining “practice” in the industry, as the Government characterizes it.
And Norton points out that Mr. Tucker did previously disclose his opinion regarding the
difference between the existence of a practice and its application. Norton Mot. at 5. Finally,
while Mr. Tucker stated that he had not conducted any industry-wide research, instead relying on
his own experience, his expert report does claim knowledge of industry practices. See, e.g.,
Expert Rep. Avram Tucker, May 18, 2018 ¶¶ 7, 13, Ex. 4 of Norton Mot., ECF No. 283-4.
Given this ambiguity, “and because, in a bench trial, the Court can easily discount the weight of
any testimony . . . that goes beyond the proper scope of [the expert’s] expertise,” the Court will
allow the text in this bullet point. Garcia Ramirez v. U.S. Immigr. & Customs Enf’t, No. 18-cv-
508, 2019 WL 6036121, at *4 (D.D.C. Nov. 14, 2019); see also DL, 109 F. Supp. 3d at 29
(“[T]hese concerns go to the weight, not the admissibility, of his report, especially in a bench
trial where there is no concern about jury confusion or prejudice.”).
c. Slide 17, Bullet 5 & Slide 20, Bullet 5 (CSP Disclosure Damages)
Finally, the Government moves to exclude two bullet points stating an opinion by Mr.
Tucker that “Dr. Gulley’s PRC calculations do not represent CSP disclosure damages.” Gov’t
Mot. at 11. The Government acknowledges that “Norton included the framework of this
misguided opinion in its July Demonstratives” but believes that Norton’s revisions “doubl[ed]
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down to include a flat opinion” that “underscores the previously undisclosed nature of Mr.
Tucker’s new non-expert opinion.” Id.
The Government’s objections to this statement are twofold: one, that Mr. Tucker did not
disclose this opinion as required by Rule 26, and two, that he is unqualified to deliver it. Id. at
14–15. The Court can quickly dispense with the second argument, as it goes to the proper
weight that should be afforded to Mr. Tucker’s testimony. “[I]n a bench trial, the Court can
easily discount the weight of any testimony . . . that goes beyond the proper scope of [the
expert’s] expertise.” Garcia Ramirez, 2019 WL 6036121, at *4. The Court’s gatekeeping
function in admitting expert testimony “is substantially relaxed when the judge will serve as
factfinder in a trial.” DL, 109 F. Supp. 3d at 28.
It is less clear whether Mr. Tucker has previously disclosed this opinion. As the
Government explains, it provided Dr. Gulley with “two sets of commercial transactions . . . as
assumptions” for which he “was tasked with performing damages calculations, not explaining
the legal and factual theories underpinning those calculations.” Gov’t Mot. at 13. Norton points
to Mr. Tucker’s critique of those transaction sets as having “made no quantifiable connection
between the alleged false CSPs and the final negotiated contract prices” in his surreply report
relating to Dr. Holt, who created them. Norton Mot. at 12–13. Norton also points out that Mr.
Tucker further elaborated on that opinion in his deposition. Id. at 13.
While it is not entirely free from doubt that those portions of the expert report directly
articulate Mr. Tucker’s opinion regarding Dr. Gulley’s damages calculations, they come close
enough. An “expert report is not the end of the road, but a means of providing adequate notice to
the other side to enable it to challenge the expert’s opinions and prepare to put on expert
testimony of its own.” Robinson v. District of Columbia, 75 F. Supp. 3d 190, 195 (D.D.C. 2014)
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(cleaned up). An expert report need not identify every potential variation of an opinion by the
exact wording that will be used at trial. This opinion was articulated approximately enough that
the Government asked about it in Mr. Tucker’s deposition and concedes that that “the
framework” of this opinion was present in Norton’s July demonstratives. Gov’t Mot. at 11.
Because Mr. Tucker disclosed enough of this opinion to satisfy Rule 26(a)(2), and because this is
a bench trial with lessened risk of confusion or misleading the jury, the Court declines to exclude
this language from the demonstratives.
B. Norton’s Cross-Motion to Modify Scheduling Order
In addition to opposing the Government’s Motion in Limine, Norton filed a cross motion
asking the Court to modify its Scheduling Order to “order the parties to disclose final
demonstratives 72 hours in advance of their expected use.” 6 Norton Mot. at 21. The pretrial
order in this case initially required the parties to submit demonstrative exhibits on June 4,
2021—about two months in advance of the trial that was at the time scheduled to begin on
August 2, 2021. See Pretrial Order at 2, ECF No. 194. That order has since been modified in
part on multiple occasions, including to clarify that the deadline for demonstrative exhibits
6
The parties additionally disagree about whether slides used during opening statements qualify
as “demonstrative” exhibits. See Gov’t Reply & Opp’n at 3, n.2. Slides used during opening
statements serve a similar function to demonstrative exhibits in that they are “illustrative aid[s]”
“used to summarize or illustrate evidence, such as documents, recordings, or trial testimony, that
has been admitted in evidence” but that have not themselves been admitted into evidence and
that “may reflect to some extent, through captions or other organizational devices or
descriptions, the inferences and conclusions drawn from the underlying evidence by the
summary’s proponent.” United States v. Bray, 139 F.3d 1104, 1111 (6th Cir. 1998). “This type
of exhibit is more akin to argument than evidence” and may be considered under Federal Rule of
Evidence 611. Id. (cleaned up); Minebea Co., Ltd. v. Pabst, 231 F.R.D. 1, 3 (D.D.C. 2005). The
Court therefore agrees with Norton that these slides should have been disclosed along with the
demonstrative exhibits and will adopt the Government’s proposed solution of limiting the United
States’ “visual presentation during opening remarks to call-outs, excerpts, and previously
disclosed demonstrative exhibits.” Gov’t Mot. at 8, n.6.
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included summary exhibits under Federal Rule of Evidence 1006, see Order of Jan. 11, 2021,
ECF No. 207 at 1, and to reset the deadline to file demonstrative and summary exhibits following
the first postponement of trial in this case to July 30, 2021, which at that time was again about
two months before the scheduled start of trial on September 27, 2021, see Minute Order of July
17, 2021.
Federal Rule of Civil Procedure 16(b) provides that the Court may modify a scheduling
order “only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); A Love of
Food I, LLC v. Maoz Vegetarian USA, Inc., 292 F.R.D. 142, 143 (D.D.C. 2013) (“[D]istrict court
case law makes clear that once the court enters a scheduling order, that schedule can only be
modified with the court’s consent and with good cause shown.”). Good cause generally
“requires the party seeking relief to show that the deadlines cannot reasonably be met despite its
diligence.” Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 226 (D.C. Cir.
2011) (cleaned up). Here, all parties met the deadline for exchanging and filing demonstrative
exhibits, meaning that an inability to meet a deadline despite diligence is not directly at issue.
See Norton Reply at 1–2. Rather, Norton argues that “the judicial economy and efficiency that
would be served by modifying the demonstrative exhibit deadline to align with the progress and
realities of trial easily satisfies the ‘good cause’ standard under Rule 16.” Id. at 4.
A district court’s “broad discretion in managing its docket” may sometimes extend to the
admission of untimely demonstratives for equitable reasons. See Grimes v. District of Columbia,
794 F.3d 83, 90 (D.C. Cir. 2015) (“[A] district court enjoys broad discretion in managing its
docket and determining the order in which a case should proceed.”). As Norton points out, this
Court allowed certain demonstratives to be admitted as Rule 1006 summaries despite having
been updated and submitted after the exhibit deadline in a recent bench trial. Norton Reply at 4
14
(discussing Garcia Ramirez v. U.S. Immigr. & Customs Enf’t, 471 F. Supp. 3d 88, 138–39
(D.D.C. 2020)). But Norton fails to acknowledge that in addition to a lack of prejudice, there
were other equitable considerations underlying that decision, primarily that “the Government
also supplemented its own exhibits after the deadline and, more importantly, . . . the
Government updated its production of some of the data underlying these demonstrative exhibits
during the second week of trial.” Minute Order of January 9, 2020, Garcia Ramirez, 18-cv-508
(D.D.C. Jan. 9, 2020).
No such equitable considerations support a wholesale modification of the deadline for all
demonstrative exhibits at this stage, of which there are many. Norton does not point to any
specific demonstrative exhibit that requires updating at this stage, rather it speculates that “the
parties will almost certainly be required to revise demonstratives used by expert witnesses based
upon the testimony and evidence introduced (and excluded) during trial.” Norton Mot. at 20.
The purpose of the requirement that the parties exchange and file proposed demonstrative
exhibits in advance of the pretrial conference is to encourage the parties to resolve any
disagreements without the Court’s intervention and to allow for resolution of as many disputes as
possible in advance of trial. The Court does not foreclose the possibility that under exceptional
circumstances the parties may need to revise specific demonstratives between now and the start
of trial, but it fails to see any gains in judicial efficiency by allowing the parties to continuously
revise demonstratives on a rolling basis throughout trial and dealing with last-minute
disagreements that could have been resolved weeks earlier. The Court therefore declines to
modify the pretrial order as proposed by Norton.
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V. CONCLUSION
For the foregoing reasons, the Government’s motion (ECF No. 280) is GRANTED IN
PART AND DENIED IN PART. The Government’s motion is granted to the following extent:
(1) Norton must strike Bullet 6 on Slide 20 of the October Demonstratives and (2) Slide 89 of the
October Demonstratives is excluded. Norton’s cross motion to modify the scheduling order (ECF
No. 283) is DENIED. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: January 31, 2022 RUDOLPH CONTRERAS
United States District Judge
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