DocketNumber: No. 07-154 C
Citation Numbers: 100 Fed. Cl. 461
Judges: Hewitt
Filed Date: 8/3/2011
Status: Precedential
Modified Date: 7/20/2022
OPINION AND ORDER
Before the court are the United States’ Second Motion for Partial Summary Judgment to Deny Dr. Cohen’s Claim for Lost Profits from Lost Sales of His Allegedly Infringed Works to the Public; to Deny Any Award of Damages for Willful Infringement; and to Limit Any Statutory Damage Award to the Minimum of $750 Per Work (defendant’s Motion for Partial Summary Judgment or Def.’s Mot.) and defendant’s Appendix (Def.’s App.), filed November 19, 2010, Docket Number (Dkt. No.) 62; United States’ Proposed Findings of Uncontroverted Facts in Support of its Second Motion for Summary Judgment (DFUF), filed November 19, 2010, Dkt. No. 63; Plaintiffs Response in Opposition to the United States’ Second Motion for Partial Summary Judgment (plaintiffs Response or Pl.’s Resp.) and plaintiffs Appendix (Pl.’s App.), filed January 28, 2011, Dkt. No. 75; Plaintiffs Response to United States’ Proposed Findings of Uncon-troverted Facts in Support of its Second Motion for Summary Judgment (Pl.’s Resp. to DFUF), filed January 28, 2011, Dkt. No. 76; and the United States’ Reply in Support of its Second Motion for Partial Summary Judgment to Deny Dr. Cohen’s Claim for Lost Profits from Lost Sales of His Allegedly Infringed Works to the Public; to Deny Any Award of Damages for Wilful Infringement; and to Limit Any Statutory Damage Award to the Minimum of $750 Per Work (defendant’s Reply or Def.’s Reply) and defendant’s Appendix (Def.’s Reply App.), filed February 25, 2011, Dkt. No. 77.
Also before the court are the United States’ Motion to Preclude Expert Testimony of Ivan Zatkovich (defendant’s Motion to Strike or Def.’s Mot. Strike) and defendant’s Appendix (Def.’s App. Strike), filed February 25, 2011, Dkt. No. 78; Plaintiffs Response in Opposition to Defendant, the United States’ Motion to Preclude Expert Testimony of Ivan Zatkovich (Pl.’s Resp. Strike), filed March 28, 2011, Dkt. No. 81; and United States’ Reply in Support of its Motion to Preclude Expert Testimony of Ivan Zatko-vich (Def.’s Reply Strike) and defendant’s Reply Appendix (Def.’s Reply Strike App.), filed April 14, 2011, Dkt. No. 86.
In addition, before the court are the United States’ Brief Addressing the Effect of This Court’s Order and Opinion of April 14, 2011 on Pending Motions (defendant’s Brief or Def.’s Br.), filed May 20, 2011, Dkt. No. 89, and Plaintiffs Brief in Response to Defendant, the United States’ Brief Addressing the Effect of this Court’s Order and Opinion of April 14, 2011 on Pending Motions (plaintiffs Response Brief or Pl.’s Resp. Br.), filed May 27, 2011, Dkt. No. 90.
Dr. Norman H. Cohen (Dr. Cohen or plaintiff) brought an action for copyright infringement against the United States government, acting through the Federal Emergency Management Agency (United States, FEMA, government or defendant). Civil Action Complaint (Complaint or Compl.), Dkt. No. 1, at ¶¶ 5, 10. Plaintiff contends that the United States willfully infringed his copyrights in at least six of his works when it displayed the works on FEMA’s website without Dr. Cohen’s permission, thereby making the works available to FEMA employees and to the public. Compl. ¶¶ 5,10-12; see PL’s Resp. to DFUF ¶ 2.
Plaintiff retained Ivan Zatkovich “to render ... expert opinions on the hardcopy and internet publishing and damages issues” in this case. PL’s Resp. Strike 2; see PL’s Resp. to DFUF ¶ 23. Mr. Zatkovich has provided an initial expert report and a supplemental expert report, as well as deposition testimony and an affidavit. On July 10, 2009 plaintiff provided Mr. Zatkovich’s initial expert report to defendant. See Def.’s Mot. Strike 1; PL’s Resp. Strike 2; Def.’s App. Strike A15-A82 (Zatkovich Initial Expert Report). In his initial expert report, Mr. Zatkovich set forth the following two theories of recovery for actual damages, the first of which applies to the public’s access to the works on FEMA’s website, and the second of which applies to the use of the works by FEMA employees: (1) as to the public’s access, lost profits from lost sales of copyrights ed works to the public that Dr. Cohen would have received but for FEMA’s infringement (utilizing a 15 to 17.5 percent royalty rate as set forth in clause 7(a) of Dr. Cohen’s HRD Press contracts), Def.’s App. A562 (Zatkovich Initial Expert Report), and (2) as to the FEMA employees’ use, lost royalties that would have accrued from licensing fees for the value of the alleged use of the works by two thousand FEMA employees (utilizing the 50 percent royalty rate set forth in clause 7(c) of Dr. Cohen’s HRD Press contracts), Def.’s App. A565 (Zatkovich Initial Expert Report). “The government is only moving for summary judgment on Dr. Cohen’s claim to the first category of damages, i.e., to lost profits that he allegedly would have made outside of FEMA.” Def.’s Mot. 5.
By letter dated August 3, 2009, in order to correct “ ‘minor errors in the totals’ ” listed in Mr. Zatkovich’s Initial Expert Report, plaintiff provided defendant a supplemental expert report from Mr. Zatkovich dated July 24, 2009. Def.’s Mot. Strike 1 (quoting Def.’s App. Strike A12 (Zatkovich Supplemental Expert Report)); see PL’s Resp. Strike 2; Def.’s App. Strike A10-A13 (Letter from Jonathan M. Cohen to Susan L.C. Mitchell and Zatkovich Supplemental Expert Report). Mr. Zatkovich did not provide any additional theories for recovery of damages in his supplemental expert report. See Def.’s App. Strike A12-A13 (Zatkovich Supplemental Expert Report).
On December 28, 2009 defense counsel deposed Mr. Zatkovich. See Def.’s App. Strike A270-A410 (Zatkovich Dep.). As to damages for the public’s use of Dr. Cohen’s works from FEMA’s website, Mr. Zatkovich’s deposition testimony departed from his expert
On January 22,2011 plaintiff untimely filed his response brief to defendant’s second motion for partial summary judgment, to which he attached an affidavit by Mr. Zatkovich dated January 21, 2011, see App. to Pl.’s Resp. in Opp’n to the United States’ Second Mot. for Partial Summ. J., Dkt. No. 72, at A002-A010 (Zatkovich Aff.). Stating that he had experienced problems with the court’s electronic filing system, plaintiff requested that the court deem his response timely filed and that the court permit him to add a title page to the document. Pl.’s Mot. for Relief Under RCFC 30 Regarding Pl.’s Resp. in Opp’n to the United States’ Second Mot. for Summ. J., Dkt. No. 73, at 1-2. On January 28, 2011, with the court’s permission, see Order of January 25, 2011, Dkt. No. 74, plaintiff filed a corrected response brief, to which he again attached the affidavit by Mr. Zatkovich, see PL’s App. A002-A010 (Zatko-vich Aff.). Plaintiff asserts that “[t]he express purpose of this affidavit was ‘to provide additional clarification of opinions already set forth in [Mr. Zatkovieh’s] previous expert report.’ ” PL’s Resp. Strike 2 (quoting PL’s App. A004 (Zatkovich Aff.)).
The United States moves to strike the affidavit of Mr. Zatkovich dated January 21, 2011 and “moves to strike, or otherwise preclude the use of, Mr. Zatkovich’s non-FEMA site licensing theory from his deposition testimony as a basis for actual damages in this case” pursuant to Rule 26(a)(2) of the Rules of the United States Court of Federal Claims (RCFC), RCFC 37(e)(1), Federal Rule of Evidence 702, and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and its progeny. Def.’s Mot. Strike 1. In its reply brief, the United States also requests that the court “preclude ... Mr. Zatkovich’s cancellation theory.” Def.’s Reply Strike 19. For the following reasons, defendant’s Motion to Strike is GRANTED IN PART, DENIED IN PART and otherwise MOOT.
The United States moves for summary judgment on three issues. See Def.’s Mot. 1; Def.’s Reply 1. First, the United States moves for summary judgment on “Dr. Cohen’s damages theories relating to alleged actual damages as a result [of] public access to FEMA’s allegedly infringing works.” Def.’s Mot. 1. Within this first issue, defendant also moves for summary judgment on plaintiffs claim for damages relating to lost profits for his non-infringed works, Def.’s Mot. 26-28, and plaintiffs claim for damages based on future lost sales, Def.’s Mot. 28-29; Def.’s Br. 2-5. Second, the “government also moves for a summary judgment determination that it is not subject to any enhanced damage award as a result of any alleged willful infringement.” Def.’s Mot. 1. Third, “the government moves for summary judgment that any statutory damage award is limited to the minimum $750 per work by the limited waiver of sovereign immunity under 28 U.S.C. § 1498(b) [2006].” Def.’s Mot. 1. For the following reasons, defendant’s Motion for Partial Summary Judgment is GRANTED IN PART and DENIED IN PART.
II. Legal Standards
A. Motion to Strike for Failure to Comply With Expert Discovery Rules
Rule 26(a)(2)(B) of the Rules of the United States Court of Federal Claims, which concerns the contents of expert reports, provides in relevant part:
*468 Unless otherwise stipulated or ordered by the court, [the] disclosure [of the identity of a witness a party may use at trial to provide expert testimony] must be accompanied by a written report — prepared and signed by the witness — if the witness is one retained or specially employed to provide expert testimony in the case----The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the data or other information considered by the witness in forming them; [and] (iii) any exhibits that will be used to summarize or support them----
RCFC 26(a)(2)(B). “A party must make these disclosures at the times and in the sequence that the court orders.” RCFC 26(a)(2)(D). Rule 26(a) directs the parties to “supplement these disclosures when required under RCFC 26(e).” RCFC 26(a)(2)(E). Rule 26(e) provides in relevant part:
A party who has made a disclosure under RCFC 26(a) ... must supplement or correct its disclosure or response ... in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing____
RCFC 26(e)(1). For expert witnesses, Rule 26(e) provides the following additional requirements regarding supplementation of information:
For an expert whose report must be disclosed under RCFC 26(a)(2)(B), the party’s duty to supplement extends both to information included in the report and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time the party’s pretrial disclosures under RCFC 26(a)(3)2 are due.
RCFC 26(e)(2) (footnote added).
“If a party fails to provide information ... as required by RCFC 26(a) or (e), the party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” RCFC 37(e)(1). The burden of establishing that a failure to disclose is substantially justified or harmless rests on the party who failed to make the required disclosure. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir.2001) (citing Wilson v. Bradlees of New Eng., Inc., 250 F.3d 10, 21 (1st Cir.2001)).
1) the prejudice or surprise of the party against whom the evidence would have been admitted; 2) the ability of the party to cure that prejudice; 3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and 4) bad faith or willfulness in failing to comply with a court order or discovery obligation.
75 Fed.Cl. 294,298-99 (2007) (citing Nicholas v. Penn. State Univ., 227 F.3d 133, 148 (3d Cir.2000); Westefer v. Snyder, 422 F.3d 570, 584 n. 21 (7th Cir.2005); Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.1999)). If the court finds that the untimely expert disclosure is not necessary for the purposes of supplementation under RCFC 26(e) and is not “substantially justified or harmless,” RCFC 37(e)(1), the court may strike the untimely disclosure, see Banks, 75 Fed.Cl. at 298 (citing Smith v. Botsford Gen. Hosp., 419 F.3d 513, 516-17 (6th Cir.2005)) (stating that “[t]he sanctions available for a Rule 26 violation may include striking an expert’s testimony”).
B. Motion for Summary Judgment
A motion for summary judgment may be granted only when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” RCFC 56(c)(1). A fact is material if it might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48, 106 S.Ct. 2505 (emphasis omitted).
The party opposing the motion “must present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Id. at 257,106 S.Ct. 2505. “The party opposing the motion must point to an evidentiary conflict created on the record; mere denials or conelusory statements are insufficient.” SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed.Cir.1985) (en banc) (citing Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 836 (Fed.Cir.1984)). To show an evidentiary conflict, a party opposing summary judgment may include supporting affidavits with its response. RCFC 56(e)(2). An affidavit “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.” RCFC 56(e)(1). If an affidavit is from an expert, the affidavit must satisfy the requirements for expert testimony under Rule 702 of the Federal Rules of Evidence, as interpreted by the courts. See 11 James Wm. Moore et al., Moore’s Federal Practice § 56.94[4][b] (2011); see, e.g., Muñoz v. Orr, 200 F.3d 291, 301-02 (5th Cir.2000) (finding that the trial court acted within its discretion in evaluating the reliability of the proffered expert testimony in ruling on a motion for summary judgment). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (citation omitted); see Univ. of W. Va. v. VanVoorhies, 278 F.3d 1288, 1295 (Fed.Cir.2002).
When ruling on a motion for summary judgment, the court may not make credibility determinations or weigh the evidence.
III. Discussion
A. Defendant’s Motion to Strike
Pursuant to evidence and discovery rules pertaining to expert witnesses, the United States moves to strike the affidavit of Mr. Zatkovich dated January 21, 2011 and additionally “moves to strike, or otherwise preclude the use of, Mr. Zatkovieh’s non-FEMA site licensing theory from his deposition testimony as a basis for actual damages in this ease.” Def.’s Mot. Strike 1. In its reply brief, the United States further requests that the court “preclude ... Mr. Zatkovich’s cancellation theory.” Def.’s Reply Strike 19.
1. Zatkovich Affidavit
Plaintiff submitted an affidavit from his expert, Mr. Zatkovich, to support his response to defendant’s Motion for Partial Summary Judgment. See Pl.’s App. A002-A010 (Zatkovich Aff.). Overlooking RCFC 56, which allows the party opposing a motion for summary judgment to file affidavits in support of its response, see RCFC 56(e), defendant argues that the Zatkovich Affidavit should be struck because its submission violates the expert discovery rules as provided by RCFC 26 and because the content of the affidavit fails to comply with FRE 702 and the standard for relevance as provided by Daubert, 509 U.S. 579, 113 S.Ct. 2786, and its progeny, see Def.’s Mot. Strike 1-18. Because the court does not rely on Mr. Zatkovich’s affidavit in deciding the merits of defendant’s Motion for Partial Summary Judgment, defendant’s motion to strike the affidavit is MOOT.
2. “Cancellation Theory”
In his initial expert report, without further explanation, Mr. Zatkovich states, “Dr. Cohen received a cancellation notice from one publisher due to the content being available for no charge on the Internet.” Def.’s App. Strike A21 (Zatkovich Initial Expert Report). Mr. Zatkovich expounds on the basis for this statement in his affidavit. See Def.’s App. Strike A8 (Zatkovich Aff.). Defendant moves to strike Mr. Zatkovich’s affidavit, which contains new information regarding this “cancellation theory,” for failure to comply with discovery and evidence rules. See Def.’s Mot. Strike 10-11, 15-17. However, for the first time in its reply brief to its Motion to Strike, defendant appears to request that the court “preclude ... Mr. Zatkovich’s cancellation theory” in its entirety. Def.’s Reply Strike 19. The court finds this argument, which defendant did not raise in its Motion to Strike, see Def.’s Mot. Strike 1, 2, 24-25, to be waived because it was untimely raised,
3. Plaintiffs Value of Use Theory of Actual Damages as Applied to the Public’s Access to His Copyrighted Works on FEMA’s Website
In his response brief to defendant’s Motion for Partial Summary Judgment, plaintiff discusses what he then referred to as the “ ‘value of use’ approach” to damages, see Pl.’s Resp. 17-19, later referred to as the “Value of License Theory” by plaintiff, see Pl.’s Resp. Strike 1, 11-17, 28-29, and as the “non-FEMA site licensing theory” or the “non-FEMA licensing theory” by defendant, see Def.’s Mot. Strike 1-2, 18-25. The court refers to this theory as the value of use theory of actual damages as applied to the public. This theory, as described by plaintiff, provides an estimate of actual damages based on lost licensing fees from estimated downloads by the public. See Pl.’s Resp. 18 (describing the theory as “askjjng] what fee Dr. Cohen would have hypothetically taken for the use of his works on the FEMA site”). Plaintiff cites to the deposition of his expert witness, Mr. Zatkovieh, to support the application of the value of use theory to the public’s use of Dr. Cohen’s works. See Pl.’s Resp. 12-13,18-19.
Defendant argues that, because this value of use theory as applied to the public’s access to Dr. Cohen’s works on FEMA’s website was not contained in Mr. Zatkovich’s expert reports, “Dr. Cohen should be precluded from presenting such a damages theory at trial.” Def.’s Reply Strike 1-2; see Def.’s Mot. Strike 24. Plaintiff asserts that the theory is admissible under the expert discovery rules because Mr. Zatkovieh applied the value of use theory to FEMA employees in his initial expert report and discussed the theory as it applies to the public during his deposition. See Pl.’s Resp. Strike 28-29.
An expert’s report “must contain ... a complete statement of all opinions the witness will express and the basis and reasons for them [and] the data or other information considered by the -witness in forming them.” RCFC 26(a)(2)(B). “If a party fails to provide information ... as required by RCFC 26(a) ..., the party is not allowed to use that information ... to supply evidence ... at a trial, unless the failure was substantially justified or is harmless.” RCFC 37(c)(1).
Plaintiff has not met his burden to prove that his failure to disclose Mr. Zatkovieh’s opinions on the value of use theory as applied to the public was substantially justified or harmless. The first factor for determining whether a failure to disclose required information pursuant to RCFC 26(a)(2)(B) is substantially justified or harmless requires an inquiry into the prejudice to or surprise of the party against whom the evidence would have been admitted. Banks, 75 Fed.Cl. at 299 (citing Nicholas, 227 F.3d at 148). Plaintiff argues that the value of use theory is
Mr. Zatkovieh’s initial expert report sets forth two theories of actual damages. See Def.’s App. Strike A22-A26 (Zatkovich Initial Expert Report). Mr. Zatkovich applied the value of use theory to estimate a licensing fee for the use of Dr. Cohen’s works by two thousand FEMA employees. Def.’s App. Strike A22, A25-A26 (Zatkovich Initial Expert Report). Mr. Zatkovich calculated a license fee for this use by first multiplying an estimate of a license fee for six electronic books by two thousand FEMA employees and then multiplying that number by one-half to account for Dr. Cohen’s 50% royalty rate as provided by his contracts with HRD Press. See Def.’s App. Strike A25-A26 (Zat-kovieh Initial Expert Report). Based on this methodology, Mr. Zatkovich calculated that a reasonable licensing fee for the value of use by the FEMA employees would be $30,000. Def.’s App. Strike A25-A26 (Zatkovich Initial Expert Report). However, as plaintiff admits, Mr. Zatkovich “did not apply that methodology to his damage estimates for downloads by the public in his Report[,] and instead used a lost sales method” to estimate actual damages as a result of the public’s use of Dr. Cohen’s works from FEMA’s website. PL’s Resp. Strike 28; see Def.’s App. Strike A22-A26 (Zatkovich Initial Expert Report). In other words, for the public’s use of Dr. Cohen’s works, Mr. Zatkovich set forth an entirely different methodology “that compares actual sales of the infringed works against projections of what they would have been under [sic] had the infringement not occurred. The difference between the actual and estimated sales is the reduction in sales that resulted from the infringement.” Def.’s App. Strike A22 (Zatkovich Initial Expert Report).
At his deposition on December 28, 2009, Mr. Zatkovich first discussed the applicability of the value of use theory to the public’s use of Dr. Cohen’s works. See Def.’s App. Strike A387-A390 (Zatkovich Dep.) (colloquy between Mr. Zatkovich and plaintiffs counsel); Def.’s App. Strike A395-A396 (Zatko-vich Dep.) (colloquy between Mr. Zatkovich and defense counsel). Mr. Zatkovich then testified that he had “considered using the licensing fee calculation estimation that [he] used for the internal cost to FEMA and extrapolate that to the external damages.” Def.’s App. Strike A387 (Zatkovich Dep.). Mr. Zatkovich proceeded to describe the methodology for calculating the licensing fee as follows: “I’ve already estimated how many visitors go to the website. I then assume what percentage of those visitors would download that material, and then calculate what would be the licensing fee associated with that material that they downloaded.” Def.’s App. Strike A387-A388 (Zatkovich Dep.). Based on this methodology, Mr. Zat-kovich calculated that a reasonable license fee for the public’s use of Dr. Cohen’s works would range from $180,000 to $1.9 million. Def.’s App. Strike A388 (Zatkovich Dep.). When asked by defense counsel to identify where this methodology and calculation appear in his report, Mr. Zatkovich stated, “I chose not to use that particular approach.” Def.’s App. Strike A395-A396 (Zatkovich Dep.).
Defendant is prejudiced by the untimely disclosure of the value of use theory as applied to the public. Although, as plaintiff contends, the deposition occurred over a year before defendant filed its Motion to Strike and defendant did not discuss the testimony in either of its two motions for summary judgment, see PL’s Resp. Strike 29, defendant did not have any reason to move for summary judgment on this issue because Mr. Zatkovich specifically stated that he “chose not to use that particular approach,” Def.’s App. Strike A395-A396 (Zatkovich Dep.).
Plaintiff argues that the court’s decisions in Rogers v. United States, 96 Fed.Cl. 472 (2011), and CCA Associates v. United States, 87 Fed.Cl. 715 (2009), support the admissibility of Mr. Zatkovich’s deposition testimony. See PL’s Resp. Strike 29-31. In Rogers, a Fifth Amendment takings case, the defen
Plaintiff argues that “[b]y analogy, even if Mr. Zatkovich should have presented the Value of License Theory as applied to the public in his Report, he did so at his deposition and therefore, Defendant was on notice of his possible use of this theory as applied to the public’s use of the FEMA website.” Pl.’s Resp. Strike 30. However, as defendant correctly states, the court in Rogers “denied the motion to strike the trial testimony because the theory for recovery had been presented in the expert’s report[,] followed by a calculation of damages based upon that theory in his deposition.” Def.’s Reply Strike 3-4 (citing Rogers, 96 Fed.Cl. at 476). This ease, therefore, is not analogous to Rogers because Mr. Zatkovieh’s expert reports do not contain a predicate for the value of use theory as applied to the public. Although in his initial expert report Mr. Zatkovich discusses his methodology for calculating a reasonable license fee for the use of Dr. Cohen’s works by FEMA employees, see Def.’s App. Strike A25-A26 (Zatkovich Initial Expert Report), Mr. Zatkovich never discusses the application of the value of use theory to the public, the different methodology he used or the calculations he made, see generally Def.’s App. Strike A15-A82 (Zatkovich Initial Expert Report).
Furthermore, the court in Rogers granted the defendant’s motion to strike a portion of the expert’s testimony relating to the cost of the land because the expert “conceded that he had not taken that cost into account when preparing his appraisal report.” 96 Fed.Cl. at 474 (citations omitted). The expert’s concession in Rogers is similar to this case, where, when asked where the value of use theory as applied to the public could be found in his expert report, Mr. Zatkovich admitted that he “chose not to use that particular approach.” Def.’s App. Strike A395-A396 (Zatkovich Dep.). The Rogers court’s conclusion on this issue therefore supports excluding Mr. Zatkovieh’s deposition testimony on the value of use theory as applied to the public.
Dr. Cohen also relies on CCA Associates, 87 Fed.Cl. at 717-21, to support his argument that the court should not exclude Mr. Zatkovich’s deposition testimony on the value of use theory as applied to the public, Pl.’s Resp. Strike 30-31. Plaintiff correctly notes that the court refused to exclude testimony of two fact witnesses whose identities were disclosed for the first time on the defendant’s final witness list three weeks before trial because “the general topic of the new witnesses’ testimony was canvassed in the original trial in this ease as well as in the general disclosures made during the [pre-trial] meeting of counsel.” CCA Assocs., 87 Fed.Cl. at 720; see Pl.’s Resp. Strike 30. However, this ruling is inapposite because those witnesses were fact witnesses, and therefore the dispute regarding their testimony at trial did not implicate any of the discovery rules pertaining to experts. See CCA Assocs., 87 Fed. Cl. at 720. Furthermore, the court in CCA Associates in fact excluded an untimely expert report and the proposed testimony of the government’s expert. Id. at 720, 721.
The second factor in the analysis to determine whether an untimely disclosure is substantially justified or harmless under RCFC 37 examines the ability of a party to cure any prejudice caused by its actions or inactions, and the third factor explores the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court. Banks, 75 Fed.Cl.
Finally, the fourth factor examines a party’s bad faith or willfulness in failing to comply with a discovery obligation. Banks, 75 Fed.Cl. at 299. Willfulness in this context means that the failure to disclose was not as a “result of inadvertence or mistake.” Nippo Corp./Int’l Bridge Corp. v. AMEC Earth & Envtl., Inc., No. 09-cv-0956, 2011 WL 1196922, at *6, 2011 U.S. Dist. LEXIS 34994, at *22 (E.D.Pa. Mar. 30, 2011) (citing Huertas v. U.S. Dep’t of Educ., 408 Fed.Appx. 639, 641 (3d Cir.2010) (unpublished); Sullivan v. Glock, Inc., 175 F.R.D. 497, 507 (D.Md.1997); In re Tutu Wells Contamination Litig., 162 F.R.D. 46, 72 (D.Vi.1995)); see Umbenhower v. Copart, Inc., 222 F.R.D. 672, 675 (D.Kan.2004) (finding that the failure to disclose was a result of “inadvertence,” rather than “willful, knowing, or in bad faith”). Repeated failures to disclose information are evidence of willfulness. See Alexander v. Archuleta Cnty., No. 08-cv-00912-CMA-KLM, 2010 WL 363390, at *3, 2010 U.S. Dist. LEXIS 11698, at *8-9 (D.Colo. Jan. 27, 2010) (finding counsel’s continuing violations of discovery rules to be willful and in bad faith, rather than an “innocent mistake”); see also In re Mercedes-Benz Anti-Trust Litig., 225 F.R.D. 498, 507 (D.N.J.2005) (finding, where a party “had several opportunities to disclose the identity of [a witness] and the subject matter of his knowledge,” that the party’s “failure to disclose such information on any one of these opportunities demonstrates willfulness at a minimum”).
The facts in this case indicate that plaintiffs counsel willfully failed to disclose Mr. Zatkovich’s expert opinion on the value of use theory as applied to the public. On direct examination during Mr. Zatkovieh’s deposition, plaintiffs counsel elicited Mr. Zatkovich’s testimony on the value of use theory as applied to the public. See Def.’s App. Strike A387-A390 (Zatkovich Dep.) (colloquy between Mr. Zatkovich and plaintiffs counsel). On cross-examination, Mr. Zatko-vich specifically disavowed the value of use theory as applied to the public, stating, “I chose not to use that particular approach.” Def.’s App. Strike A396 (Zatkovich Dep.). Plaintiffs counsel did not ask any questions on redirect examination. See Def.’s App. Strike A397 (Zatkovich Dep.). Had plaintiffs counsel asked further questions about the theory on redirect examination, defendant might possibly have had notice that plaintiff intended to pursue damages under that theory. Following the deposition, plaintiff did not provide defendant with a supplemental expert report from Mi’. Zatkovich on the value of use theory as applied to the public, nor did plaintiff seek to reopen discovery to allow defendant to provide a rebuttal expert report to Mr. Zatkovich’s newly disclosed theory of damages. Plaintiffs counsel gave no notice to defendant or to the court of his intention to use Mr. Zatkovich’s testimony or opinions on the value of use theory as applied to the public until plaintiff used the testimony in its Response in an attempt to defeat summary judgment. Plaintiffs repeated failure to provide any notice of this new theory of damages to defendant is evidence of willful conduct, rather than inadvertence or mistake.
The application of the four factors to the facts of this ease supports the conclusion that plaintiff has failed to prove that Mr. Zatko-
B. Motion for Partial Summary Judgment
The government’s motion for summary judgment addresses Dr. Cohen’s claims for damages as a result of the public’s access to his works on FEMA’s website. Def.’s Mot. 1, 5. “The government [moves] for partial summary judgment in ’its favor on the following three issues in this suit: (1) Dr. Cohen’s damages theories relating to alleged actual damages as a result of public access to FEMA’s allegedly infringing works should be rejected as a matter of law because they are unsupported by any evidence and unduly speculative; (2) Wilful infringement is not cognizable against the government; and (3) Any statutory damage award is limited to $750 per work by the government’s limited waiver of sovereign immunity under 28 U.S.C. § 1498(b).” Def.’s Reply 1; see Def.’s Mot. 1. Within the first issue, defendant also moves for summary judgment on plaintiffs claim for damages relating to lost profits for his non-infringed works, Def.’s Mot. 26-28, and plaintiffs claim for damages based on future lost sales, Def.’s Mot. 28-29; Def.’s Br. 2-5.
1. Plaintiffs Claim for Actual Damages for the Public’s Access to His Copyrighted Works from FEMA’s Website
Copyright infringement suits against the United States are governed by 28 U.S.C. § 1498(b). See, e.g., Blueport Co. v. United States, 533 F.3d 1374, 1378-79 (Fed.Cir.2008); Boyle v. United States, 200 F.3d 1369, 1372-73 (Fed.Cir.2000). “Section 1498(b) is a detailed, carefully drafted, complex provision in which Congress carefully and explicitly set forth the precise standards governing private suits against the United States for copyright infringement.” Walton v. United States, 551 F.3d 1367, 1370 (Fed.Cir.2009). Section 1498(b) provides in relevant part as follows:
[W]henever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, ... the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504(c) of title 17, United States Code____
28 U.S.C. § 1498(b). “[Reasonable and entire compensation as damages” for copyright infringement is not defined in the statute, see 28 U.S.C. § 1498, and has not been the subject of analysis by the Federal Circuit; however, “[t]he legislative history for Section
To determine damages for copyright infringement claims against the United States, this court applies the substantive law of the relevant section of the Copyright Act, 17 U.S.C. § 504 (2006). See id. at 391-92; Wechsberg v. United States, 54 Fed.Cl. 158, 165-67 (2002); see also Williams & Wilkins Co. v. United States, 487 F.2d 1345, 1378 (Ct.Cl.1973), affd per curiam, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264 (1975). Under the Copyright Act, an infringer of a copyright is liable for either: (1) the copyright owner’s actual damages and any additional profits of the infringer,
An award of actual damages “undertakes to compensate the [copyright] owner for any harm he suffered by reason of the infringer’s illegal act.” On Davis v. The Gap, Inc., 246 F.3d 152, 159 (2d Cir.2001) (citing Fitzgerald Publ'g Co. v. Baylor Publ’g Co., 807 F.2d 1110, 1118 (2d Cir.1986); Walker v. Forbes, Inc., 28 F.3d 409, 412 (4th Cir.1994)). Assessing actual damages is a “case-by-case assessment of the factors involved, rather than application of hard and fast rules.” Walker, 28 F.3d at 412. To determine actual damages, courts customarily assess “the extent to which the market value of a copyrighted work has been injured or destroyed by an infringement.” United States v. King Features Entm’t, Inc., 843 F.2d 394, 400 (9th Cir.1988) (quoting Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc. (MGM), 772 F.2d 505, 512 (9th Cir.1985) (internal quotation marks omitted)); Brooktree, 977 F.2d at 1579 (measuring actual damages “in terms of the diminished market value of the copyrighted work” (citing MGM, 772 F.2d at 512)); Fitzgerald Publ’g Co., 807 F.2d at 1118; see Nimmer § 14.02[A] (“Actual damages represent the extent to which infringement has injured or destroyed the market value of the copyrighted work at the
“The basic rule for computing injury to the market value of a copyrighted work arising from infringement is to inquire what revenue would have accrued to plaintiff but for the infringement.” Nimmer § 14.02[A][1]; Data Gen., 36 F.3d at 1171; Fitzgerald Publ’g Co., 807 F.2d at 1118 (citing Kenbrooke Fabrics, Inc. v. Holland Fabrics, Inc., 602 F.Supp. 151, 155 (S.D.N.Y.1984)); Stevens Linen Assocs., Inc. v. Mastercraft Corp. (Stevens Linen), 656 F.2d 11, 15 (2d Cir.1981) (stating that “the object of the damages inquiry is to determine what sales probably would have been made without the infringement”). Because the injury to the market value of a copyrighted work can be difficult to ascertain, Fitzgerald Publ’g Co., 807 F.2d at 1118; Stevens Linen, 656 F.2d at 14 (citations omitted), a variety of methods can be used to determine the extent of that injury. However, regardless of the method used to determine actual damages, the burden is always on the plaintiff to prove causation. See, e.g., Stevens Linen, 656 F.2d at 15; Taylor v. Meirick, 712 F.2d 1112, 1119-21 (7th Cir.1983).
Defendant argues that “Dr. Cohen has failed to present any evidence on either prong of the ‘but for test: (1) He is unable to show evidence of a loss in fair market value of his works; and (2) He is unable to show any evidence that the government’s alleged infringement caused any such loss.” Def.’s Mot. 13. In particular, referring to Mr. Zat-kovich’s initial expert report, which describes “ ‘[l]ost royalties from lost sales of copyright ed works to parties outside of FEMA including other governments, corporations, foreign purchasers, and private individuals,’ ” Def.’s Mot. 17 (quoting Def.’s App. A562 (Zatkovich Initial Expert Report)) (emphasis omitted), defendant argues that “nowhere does Dr. Cohen or Mr. Zatkovich present any evidence that any of these cited customers turned away from, or declined to purchase, plaintiffs works because of the availability of mentoring materials on FEMA’s website. In fact, Dr. Cohen fails to present any evidence whatsoever as to whether these customers were even aware of FEMA’s mentoring materials,” Def.’s Mot. 17.
In response, plaintiff sets forth evidence of one publisher that cancelled republieation of one of Dr. Cohen’s works after finding the work available on the Internet.
It has come to our attention that a large portion of your book, Mentoring Adult Learners: A Guide for Educators and Trainers, is available on your website. The committee therefore feels it would be a poor monetary decision to rerun this title.
Pl.’s App. A013 (June 24, 2003 letter from Krieger to Dr. Cohen); Def.’s Reply App. A917 (same). The documents produced by Krieger do not clarify to which website the phrase “your website” refers. See Def.’s Reply App. A899-A922 (subpoena sent to Krieger and documents produced in response to subpoena).
Plaintiff argues that the phrase “your website” refers to FEMA’s website. Pl.’s Resp. 27-28. In support of his contention, plaintiff asserts that “Dr. Cohen wrote [to Krieger that] he never had a website.” Pl.’s Resp. 28;
In your letter to me ... of June 24, 2003, you declined to continue publishing Mentoring Adult Learners: A Guide for Educators and Trainers.
Your letter refers to the fact that a large portion of the book was available on my website.
At that time, I left several telephone messages stating that I did not have a website, and I requested the specific website address —
I did not receive a reply to my telephone requests, and the book was discontinued by the Krieger Publishing Co....
I would like to determine the exact website to which you referred in your letter of June 24, 2003.
Def.’s Reply App. A916 (July 15, 2005 letter from Dr. Cohen to Krieger). Krieger’s response to Dr. Cohen did not specify the website that Krieger referred to in its June 24, 2003 letter. See Def.’s Reply App. A914 (July 18, 2005 fax from Krieger to Dr. Cohen). The body of Kieger’s response to Dr. Cohen’s request states, in its entirety:
We cannot retrace our 2003 editorial memos. They were eliminated from our records when the book went into out of print status.
We are sorry we could not help you.
Def.’s Reply App. A914 (July 18, 2005 fax from Kieger to Dr. Cohen). From Dr. Cohen’s letter and Kieger’s response, plaintiff concludes that Krieger “mistook FEMA’s website for one that seemed like it was endorsed by Dr. Cohen,” and, because the work was available on the website, decided not to republish Dr. Cohen’s work. Pl.’s Resp. 28 (citation omitted); see Def.’s Reply App. A916 (July 15, 2005 letter from Dr. Cohen to Kieger), A914 (July 18, 2005 fax from Krieger to Dr. Cohen).
Defendant argues that “your website” refers to the website of one of Dr. Cohen’s publishers, HRD .Press. Def.’s Reply 9. In support of its contention, defendant asserts that in its subpoena to Kieger, defendant requested “ ‘[a]ll documents pertaining to the cessation of publishing any Work(s)-in-Suit.’ ” Def.’s Reply 8 (quoting Def.’s Reply App. A902 (subpoena sent to Kieger)). Defendant received a copy of the June 24, 2003 letter and states that “[t]he two pages in the production that immediately follow this letter ... are pages from HRD Press’s on-line catalogue showing Dr. Cohen’s works with a detailed description of three of Dr. Cohen’s HRD Press works____The final page comprehensively lists 11 titles by Dr. Cohen offered by HRD Press that involve mentoring.” Def.’s Reply 9 (citing Def.’s Reply App. A918-A919 (screenshot of an HRD Press webpage showing a list of eleven of Dr. Co
There is a genuine issue of material fact with respect to this alleged lost sale. The meaning of the phrase “your website” was never clarified by Krieger, see Def.’s Reply App. A899-A922 (subpoena sent to Krieger and documents produced in response to subpoena), and the identity of the website referred to by Krieger would indicate whether Krieger cancelled the republication of Dr. Cohen’s work because of FEMA’s alleged infringement. The facts alleged by Dr. Cohen with regard to the cancellation notice from Krieger are similar to those alleged by the plaintiff in Encyclopedia Brown Productions, 25 F.Supp.2d at 402. In that case, the court found that deposition testimony by the president of the plaintiff company regarding “two deals that were not consummated” due to the defendant’s infringement was “somewhat meager” evidence of causation, but it was nonetheless sufficient to create a genuine issue of material fact to defeat summary judgment. Id.; see X-It Prods., L.L.C. v. Walter Kidde Portable Equip., Inc., 155 F.Supp.2d 577, 615-16 (E.D.Va.2001) (finding that a genuine issue of material fact on actual damages was created by deposition testimony by the president of another company that it did not buy the plaintiffs product because it found the defendant’s infringing product being sold at a lower price); cf. Mfrs. Techs., Inc. v. Cams, Inc., 728 F.Supp. 75, 80 (D. Conn.1989) (finding “customer testimony and other evidence indicating that the purchases of [the plaintiffs product] were either delayed, put off indefinitely, or cancelled entirely, as a result of exposure to defendant’s [product]” to be “very compelling”); Golden-berg, 731 F.Supp. at 1159 (discussing the need for testimony from potential customers in order to award actual damages to the plaintiff). Because there is a genuine issue of material fact relating to Dr. Cohen’s alleged lost sale to Krieger, defendant’s motion for summary judgment is DENIED on the issue of actual damages for the public’s access to and use of Dr. Cohen’s works from FEMA’s website. See RCFC 56(c)(1); Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (stating that to determine whether genuine issues of material fact exist, the court must resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party (citation omitted)).
a. Lost Profits for Non-infringed Works
“A plaintiff may seek compensation for both direct and ‘indirect’ losses, as long as the losses claimed are not unduly speculative.” Data Gen., 36 F.3d at 1171 (citing, inter alia, Bus. Trends Analysts, Inc. v. Freedonia Grp., Inc., 887 F.2d 399, 404 (2d Cir.1989)). Indirect losses may include the value of lost sales on non-infringed works that are marketed as part of the line of merchandise that includes a work as to which copyright infringement is proven by the plaintiff. Sunset Lamp Corp. v. Alsy Corp., 749 F.Supp. 520, 521 (S.D.N.Y.1990). However, the Copyright Act “limits the extent of actual recovery to amounts proved to have resulted from a defendant’s infringement, as demonstrated by credible evidence.” Id. at 524. As set forth in Sunset Lamp, plaintiffs burden of proof to recover actual damages for lost sales of non-infringed items is as follows:
Plaintiff will have to demonstrate by credible evidence a relationship between sales of non-infringed [works] and sales of the infringed [works], and further show which sales were prevented as a result of defendant[’s] infringement. The requirement [is] that the amount of damages allegedly suffered by the plaintiff bear a “necessary, immediate and direct causal connection” to the infringement____Furthermore, [plaintiff] will need to show that amount specifically rather than rely on speculation. If there is no evidence to establish the amount of such damages, proof merely*482 that there were such damages will not support an award.
Id. at 524-25 (quoting Big Seven Music, 554 F.2d at 509) (citing Bus. Trends Analysts, 887 F.2d at 407). Proving that lost profits on non-infringed works are “directly attributable” to the defendant’s infringement of another work is “difficult, but not inconceivable.” Id. at 524. Evidence of lost customers is used to determine whether the plaintiff established the requisite causation to recover actual damages. Id. at 524 n. 2 (stating that the plaintiff “may produce testimony from a purchaser at a department store that it canceled an order for many items in the [plaintiffs] line upon becoming aware that [the defendant] produced an item nearly identical to the [plaintiffs] banana leaf floor lamp” (citation omitted)).
Although plaintiff sets forth some evidence of a relationship “between sales of non-infringed [works] and sales of the infringed [works],” id. at 524, plaintiff has failed to show that sales of his non-infringed works “were prevented as a result of defendant’s infringement,” id. at 524-25; see PL’s Resp. 26-27; see also PL’s Resp. 10-11. Citing to Mr. Zatkovich’s initial expert report and deposition, as well as the deposition of plaintiffs publisher, Mr. Robert Carkhuff, plaintiff claims that all of his works are “derivative works of each other,” and therefore the “inclusion of damages for derivative works with damages for infringed works is appropriate.” PL’s Resp. 27 (internal quotation omitted); see PL’s Resp. 10; see also Def.’s App A563 (Zatkovich Initial Expert Report) (stating that “[t]he content in all of the works is related, and descendant from common works, in particular Dr. Cohen’s doctoral thesis”).
However, rather than setting forth any evidence of causation, such as lost customers or cancelled orders for his non-infringed works as a result of the government’s alleged infringement, plaintiff simply concludes that “[s]ince all of Plaintiffs works are related or derivative of each other, any finding that the infringement caused lost sales on the infringed works necessarily implies losses to the non-infringed works.” PL’s Resp. 27 (internal quotation marks omitted); see PL’s Resp. 10 (claiming that “if the public could see the posted infringed works, it would forgo buying other works which are similar to and derivative of them. Therefore infringement of some works hurt sales for all works.” (citations omitted)). Furthermore, plaintiffs expert does not provide any explanation of causation, but rather “assumes that the non-infringed works would be impacted by the availability of the initial 6 works on the FEMA website as the material all draws from the same core content.” Def.’s App. A571 (Zatkovich Initial Expert Report); see Def.’s App. A563 (Zatkovich Initial Expert Report) (stating that “I have also assumed that sales trends in other works which were not infringed would be equivalently impacted by the infringement____ It is reasonable to assume that the ability to download a majority of the content from the Internet would reduce the need to purchase the non-infringed works.”); Def.’s App. A586-A587 (Zatkovich Initial Expert Report). These conclusory statements—resting on assumptions and containing no evidence of causation—are insufficient to defeat summary judgment. See Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1333 (Fed.Cir.2009), reh’g & reh’g en banc denied, 587 F.3d 1324 (Fed.Cir.2010); SRI Int’l, 775 F.2d at 1116 (citing Barmag Barmer Maschinenfabrik AG, 731 F.2d at 836); see also Daubert, 509 U.S. at 596, 113 S.Ct. 2786 (stating that if “the trial court concludes that the scintilla of [expert] evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to ... grant summary judgment” (citations omitted)). Because plaintiff failed to raise a genuine issue of material fact with regard to lost profits for non-infringed works, defendant’s Motion for Partial Summary Judgment is GRANTED on this issue. See RCFC 56(c)(1).
b. Lost Profits for Future Lost Sales
Some courts have suggested that actual damages under the Copyright Act may include future losses. See Mary Ellen Enters., 68 F.3d at 1070; Abeshouse, 754 F.2d at 471; Stevens Linen, 656 F.2d at 15; Applied Innovations, Inc. v. Regents of the Univ. of
Although there is authority suggesting that future losses may be considered when determining actual damages, the court does not need to decide whether future lost profits are recoverable as a matter of law because Dr. Cohen failed to prove he is entitled to them as a matter of fact. Plaintiff argues that “since the infringing materials were placed on FEMA’s public domain website, damages continue long after those materials were removed and continue to hurt sales of Plaintiffs works even at the present time.” Pl.’s Resp. 24. However, rather than setting forth any evidence of causation, such as lost customers or cancelled orders for his works following the infringement period, plaintiff simply relies on Mr. Zatkovich’s deposition testimony, in which he stated that “the damages would be ongoing” even after FEMA removed the allegedly infringing ma
2. Statutory Damages and Damages for Willful Infringement
If the United States infringes upon a copyright, 28 U.S.C. § 1498(b) provides “for the recovery of [the copyright owner’s] reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504(c) of title 17, United States Code.” 28 U.S.C. § 1498(b). Section 504(c) of the Copyright Act addresses the ability of a copyright owner to elect an award of statutory damages instead of actual damages:
[T]he copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, ... in a sum of not less than $750 or more than $30,000 as the court considers just.
17 U.S.C. § 504(c)(1). Section 504(c) also addresses the possibility of increased statutory damages for willful copyright infringement:
In a ease where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.
17 U.S.C. § 504(c)(2).
Defendant argues that under 28 U.S.C. § 1498(b), “any statutory damage award against the government is limited to the minimum award of $750 per work.” Def.’s Mot. 29. Defendant also argues that “[t]he government cannot be held liable for wilful infringement under its limited waiver of sovereign immunity under 28 U.S.C. § 1498(b).” Def.’s Reply 18; see Def.’s Mot. 35-37. However, these legal issues addressing statutory damages are speculative upon possible future actions by plaintiff. Dr. Cohen has not advised the court that he is electing an award of statutory damages instead of actual damages. See, e.g., Compl. ¶ 13 (requesting “Compensatory damage of lost profits and all losses resulting from the infringements to Plaintiff including all damages available under the United States Copyright Law, in excess of $150,000.00 in damages”); Pl.’s Resp. 28 (stating that “plaintiff may choose to elect statutory damages” (emphasis added)); Pl.’s Resp. 32 (discussing the legal principles that plaintiff contends are applicable “if he elects statutory damages” (emphasis added)). If he proves that the United States
IV. Conclusion
For the foregoing reasons, defendant’s Motion to Strike is GRANTED IN PART, DENIED IN PART and otherwise MOOT. Defendant’s motion to strike Mr. Zatkovieh’s deposition testimony on the value of use theory of actual damages as applied to the public’s use of Dr. Cohen’s works from FEMA’s website is GRANTED. Defendant’s motion to strike plaintiffs “cancellation theory” is DENIED. Defendant’s motion to strike the Zatkovieh Affidavit is MOOT.
Defendant’s Motion for Partial Summary Judgment is GRANTED IN PART and DENIED IN PART. Summary judgment is GRANTED on the issues of lost profits for non-infringed works and lost profits from future lost sales. Summary judgment is DENIED on the issue of actual damages for the public’s access to and use of Dr. Cohen’s works from FEMA’s website and DENIED on the issues of statutory damages and damages for willful infringement.
On or before Friday, August 19, 2011, the parties SHALL FILE a Joint Status Report proposing a pretrial schedule in accordance with RCFC Appendix A.
IT IS SO ORDERED.
. On November 19, 2010 defendant filed the United States’ Motion for Reconsideration, Docket Number (Dkt. No.) 61, as well as its second Motion for Partial Summary Judgment, Dkt. No. 62. While the court was considering the United States’ Motion for Reconsideration, the parties completed briefing on defendant’s second Motion for Partial Summary Judgment. In addition, on February 25, 2011 defendant filed the United States’ Motion to Preclude Expert Testimony of Ivan Zatkovich (defendant’s Motion to Strike or Def.’s Mot. Strike), Dkt. No. 78, and the parties completed briefing on that motion on April 14, 2011.
On April 14, 2011 the court granted in part the United States’ Motion for Reconsideration. Op. and Order of Apr. 14, 2011, Dkt. No. 84. Because "[t]he issues in this case are sufficiently complicated that the court [did] not wish to rely on briefing that no longer reflects the parties’ positions following the court’s Opinion and Order on the United States’ Motion for Reconsideration,” the court ordered the parties to "confer with each other and discuss whether they would
In response to the court’s scheduling order, on May 20, 2011 defendant filed the United States’ Brief Addressing the Effect of This Court’s Order and Opinion of April 14, 2011 on Pending Motions (defendant’s Brief or Def.'s Br.), Dkt. No. 89. Plaintiff did not file an opening brief. On May 27, 2011 plaintiff filed Plaintiff’s Brief in Response to Defendant, the United States’ Brief Addressing the Effect of this Court’s Order and Opinion of April 14, 2011 on Pending Motions (plaintiff’s Response Brief or PL's Resp. Br.), Dkt. No. 90.
. Rule 26(a)(3) of the Rules of the United States Court of Federal Claims (RCFC) refers to the requirements of Appendix A, Case Management Procedure, ¶¶ 13, 15 and 16, governing post-discovery and pretrial proceedings. RCFC 26(a)(3); see RCFC App. A ¶¶ 13, 15, 16. Rule 26(a)(3) of the Federal Rules of Civil Procedure (FRCP) contains similar guidance regarding pretrial disclosures in the text of the rule itself.
. The Rules of the United States Court of Federal Claims generally mirror the Federal Rules of Civil Procedure. See RCFC 26 rules comm, notes (2008) (“The language of RCFC 26 has been amended to conform to the general restyling of the FRCP.”); RCFC 37 rules comm, notes (2008) ("The language of RCFC 37 has been amended to conform to the general restyling of the FRCP.”). Therefore, the court relies on cases interpreting FRCP 26 and FRCP 37 as well as those interpreting RCFC 26 and RCFC 37. As noted above, see supra note 2, RCFC 26(a)(3) differs from FRCP 26(a)(3). However, the considerations appropriate in determining whether evidence should be allowed or not appear to the court to be substantially similar whether addressed under FRCP 26(a)(3) or under the referenced sections in RCFC Appendix A.
. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has reviewed appeals from district courts regarding the meaning of "substantially justified or harmless.” See, e.g., Siemens Med. Solutions USA, Inc. v. Saint-Gobain Ceramics & Plastics, Inc., 637 F.3d 1269, 1284 (Fed.Cir.2011), reh'g & reh’g en banc denied, 637 F.3d 1269 (Fed.Cir.2011) ("We review a district court's decision to exclude evidence under the law of the regional circuit.” (citation omitted)); Tokai Corp. v. Easton Enters., Inc., 632 F.3d 1358, 1364 (Fed.Cir.2011), reh'g & reh'g
. However, the court’s decision that defendant’s motion to strike the affidavit is moot for purposes of this motion for summary judgment opinion does not mean that the affidavit necessarily would be admissible at trial. Defendant argues that Mr. Zatkovich’s affidavit contains numerous conclusory and unsupported statements. See Def.’s Mot. Strike 13-17; see generally Def.’s App. Strike A1-A9 (Zatkovich Aff.). Had the court relied on Mr. Zatkovich’s affidavit in deciding defendant’s Motion for Partial Summary Judgment, the court would have been required to address whether the affidavit satisfies the requirements for expert testimony under Rule 702 of the Federal Rules of Evidence, as interpreted by the courts. See 11 James Wm. Moore et al., Moore's Federal Practice § 56.94[4][b] (2011); see, e.g., Muñoz v. Orr, 200 F.3d 291, 301-02 (5th Cir.2000) (finding that the trial court acted within its discretion in evaluating the reliability of the proffered expert testimony in ruling on a motion for summary judgment).
. The court notes that plaintiff has set forth additional factual evidence beyond Mr. Zatkovich's expert report and affidavit to support plaintiff’s claim that a publisher cancelled the republication of one of his copyrighted works because the publisher found the work on the Internet. See infra Part III.B.l.
. Other courts have found that the discovery rules do not permit a party to supplement a deficient expert report with deposition testimony. The United States Court of Appeals for the Seventh Circuit has taken a particularly strict view, stating:
Rule 26(a)(2) does not allow parties to cure deficient expert reports by supplementing them with later deposition testimony. The purpose of Rule 26(a)(2) is to provide notice to opposing counsel—before the deposition—as to what the expert witness will testify, and this purpose would be completely undermined if the parties were allowed to cure deficient reports with later deposition testimony. Allowing parties to cure a deficient report with later depositions would further undermine a primary goal of Rule 26(a)(2): to shorten or decrease the need for expert depositions.
Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 642 (7th Cir.2008) (internal citations and quotations omitted); see LaMarca v. United States, 31 F.Supp.2d 110, 123 (E.D.N.Y.1999) (stating that "deposition testimony does not cure deficiencies in the Rule 26(a)(2)(B) notice” (quotation omitted)). Because the Federal Circuit has not provided a dispositive analysis on whether a defective expert report can be cured by later deposition testimony, the court follows the "substantially justified or harmless" test as outlined in Banks v. United States, 75 Fed.Cl. 294, 298-99 (2007).
. The fact that plaintiff drew the court’s attention to a portion of a case that he believed supported his position while neglecting to draw the court’s attention to a portion of the same case that supports defendant’s position is a subject of concern to the court.
. Plaintiff's attempt to use Mr. Zatkovich’s deposition testimony on the value of use theoiy of actual damages as applied to the public in his Response to defendant’s Motion for Partial Summary Judgment, see Pl.’s Resp. 18-19, led to defendant’s attempt to move for summary judgment on this issue in its Reply, see Def.’s Reply 10-11, 18. Because Mr. Zatkovich’s deposition testimony on this issue is excluded, the government’s request that the court "grant summary judgment ... denying [plaintiff's] claim for the value of use by any non-FEMA individuals,” Def.'s Reply 18, is moot.
. In a copyright infringement case between private parties, "a plaintiff who seeks to recover actual damages is entitled to a jury trial.” 3-12 Melville B. Nimmer & David Nimmer, Nimmer on Copyright (Nimmer) § 12.10[A] (2011) (citing Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 346, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998)). However, ”[i]n this court, the judge, rather than a jury, is always the trier of fact.” Persyn v. United States, 34 Fed.Cl. 187, 194 (1995).
. For a discussion of statutory damages, see infra Part III.B.2.
. The parties disagree over the appropriate method to measure injury to the market value of Dr. Cohen’s works as a result of defendant’s alleged infringement. Defendant advocates for the use of a test set forth by the United States Court of Appeals for the Second Circuit in Stevens Linen Associates, Inc. v. Mastercraft Corp. (Stevens Linen), 656 F.2d 11, 15 (2d Cir.1981), and argues that under this method, “[pjlaintiff fails to establish a prima facie case supporting actual damages," Def.'s Mot. 15 (footnote omitted); see Def.'s Mot. 15-23; see also Def.’s Reply 11-13. Plaintiff argues that the method of measuring lost profits proposed by the United States Court of Appeals for the Seventh Circuit (Seventh Circuit) in Taylor v. Meirick, 712 F.2d 1112, 1119-21 (7th Cir.1983), "is more appropriate to this case," Pl.’s Resp. 16-17; see Pl.’s Resp. 20. Because plaintiff has put forth sufficient evidence on causation to defeat summary judgment, and because determining actual damages is a "case-by-case assessment of the factors involved, rather than an application of hard and fast rules,” Walker v. Forbes, Inc., 28 F.3d 409, 412 (4th Cir.1994), the court need not decide the appropriate test to measure actual damages at this point. However, based on plaintiff’s argument and evidence in the record before the court, the measure set forth in Taylor, 712 F.2d at 1119-21, is likely unavailable to plaintiff.
In Taylor, the Seventh Circuit found that lost profits could be measured by comparing a plaintiff's pre-infringement sales of a copyrighted work to a plaintiff’s yearly sales of the work during the infringement period. 712 F.2d at 1119-21. Under this method, lost profits equal the average annual gross revenue during the years preceding the infringement multiplied by the number of years in the infringement period, reduced by the actual gross revenue received by the copyright owner from sales of the infringed work during the infringement period, and further reduced by the copyright owner’s cost savings due to his lower volume of sales. Id.; see Nim-mer § 14.02[A][1], This method assumes that the amount of pre-infringement sales of the copyrighted work would have remained stable during the infringement period, but for the defendant’s infringing activity. See Taylor, 712 F.2d at 1119-21. The copyright owner must set forth evidence of his revenue from the copyrighted work both before and during the infringement period. Id. at 1120-21. Once the plaintiff shows evidence that sales declined during the infringement period, the burden shifts to the defendant to show that the decline in sales was not caused by his infringing activity. Id. at 1121.
Without citation, plaintiff asserts that "[Mr.] Zatkovich, utilizing a common sense 'difference in sales’ test similar to the one endorsed by Judge Posner and described abovef,] has demonstrated at least by a preponderance of the evidence that FEMA’s infringement caused damage to the sales of Plaintiff’s works. Mr. Zatkovich did this by showing that sales dropped off earlier than they ever should have given the expected life cycle of these demonstrably desirable works when FEMA updated and redesigned its website in order to make downloads easier for the public.” PL's Resp. 20 (footnote omitted). Plaintiff further asserts that "[Mr.] Zatkovich followed this same methodology in his expert report, except that [Mr.] Zatkovich found the significant drop in sales to have taken hold when it did because of the deliberate redesign of the FEMA site which made accessibility to the public easier than it had been previously.” PL's Resp. 17.
. Aside from the evidence relating to the Krieger Publishing Company (Krieger), defendant correctly argues that plaintiff failed to present any evidence that any of the "other governments, corporations, foreign purchasers, and private individuals” cited by Mr. Zatkovich, Def.’s App. A562 (Zatkovich Initial Expert Report), "turned away from, or declined to purchase, plaintiff's works because of the availability of mentoring materials on FEMA’s website,” Def.’s Mot. 17; see Def.’s Mot. 17-18 (discussing the lack of evidence of the effect of the alleged infringement on the purchasing habits of organizations, colleges, universities and commercial sources); Def.’s Mot. 19-20 (discussing the lack of evidence of the effect of the alleged infringement on the purchasing habits of potential customers of HRD Press); see also Pl.’s Resp. 20 (claiming that Krieger’s cancellation of the republieation of one of Dr. Cohen’s works "implies many other lost customers,” but failing to provide evidence regarding these alleged lost customers); Pl.’s Resp. 28 (stating that "Krieger’s decision not to rerun the work clearly shows that the public would not buy the work when they could get it for free on the Internet,” but again, failing to provide evidence that any member of the public decided not to buy Dr. Cohen’s works because he or she found the work on FEMA’s website).
. Mentoring Adult Learners: A Guide for Educators and Trainers is one of the six allegedly infringed works. See Compl. ¶ 5; Compl. Ex. 1; Def.’s App. A561 (Zatkovich Initial Expert Report).
. In support of this statement, plaintiff cites to the Zatkovich Affidavit. See Pl.’s Resp. 28. However, because there is other evidence in the record of plaintiff’s assertion, the court need not and does not rely on the Zatkovich Affidavit.
. Professor Nimmer has analogized to Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, 1581 (Fed.Cir.1992), in the context of future damages for copyright infringement. See Nimmer § 14.03[B][2][d] n. 120.
. Mr. Zatkovich’s expert report likewise fails to show any evidence of causation of future lost sales. Although Mr. Zatkovieh projects lost sales through the year 2017, he supports his sales projections with nothing more than conclusoiy assumptions. See Def.'s App. A562-A564, A609-A622 (Zatkovieh Initial Expert Report). Mr. Zat-kovich ”assume[s] that sales would have declined at 20 percent per year for the period 2011— 2017.” Def.’s App. A562 (Zatkovieh Initial Expert Report). To support this assumption, Mr. Zatkovieh lists "multiple commercial sources” that carry works on mentoring to show that there is a "significant demand” for Dr. Cohen’s works. Def.’s App. A562-A563 (Zatkovieh Initial Expert Report). Based on this list, Mr. Zatkovieh concludes, without further explanation, "It is reasonable to assume that had the works not been infringed and placed into the public domain, the sales of his works would probably have grown over time.” Def.’s App. A563 (Zatkovieh Initial Expert Report).