Proofpoint, Inc. v. Vade Secure, Incorporated

Background

The order resolved two discovery-dispute letter briefs. Vade sought to compel Proofpoint to produce additional third-party materials concerning customer pricing, contract terms, and products allegedly affected by Vade’s conduct. The request came more than three months after the February 13, 2021 fact-discovery cutoff. Vade argued that Proofpoint had raised its price-erosion damages theory for the first time in a post-discovery expert report and had agreed to produce the requested materials. Proofpoint denied agreeing to produce them and said its price-erosion calculation relied only on documents already produced. Proofpoint also stated that it had produced more than 650 third-party customer contracts and other pricing information.

The second dispute concerned expert reports. Proofpoint sought permission to file supplemental reports responding to new allegations and evidence in Vade’s rebuttal reports. Proofpoint also sought to strike portions of Vade’s rebuttal reports under Federal Rules of Civil Procedure 26(e) and 37(c)(1), which require timely supplementation of disclosures and generally bar use of information that was not properly disclosed unless the failure was substantially justified or harmless. Vade sought to strike Proofpoint’s supplemental reports and portions of Proofpoint’s opening reports concerning Vade’s Content Filter.

Rulings

The court denied Vade’s motion to compel the additional customer materials. It credited Proofpoint’s representation that its price-erosion calculation was based solely on documents already produced. The court also found the request untimely because fact discovery had closed and the local rules required any motion to compel to be filed no later than seven days after the cutoff. The court further relied on Proofpoint’s position that it had timely objected to the requests and had not waived those objections.

The court granted Proofpoint’s request to file supplemental expert reports and denied Vade’s request to strike those reports. The court found Vade’s opposition unpersuasive. It also granted Proofpoint’s request to strike the identified portions of Vade’s expert rebuttal reports. The court found that Vade had failed to disclose the relevant allegations, evidence, and theories during fact discovery and had not shown substantial justification or harmlessness. According to the court, the late disclosures impaired Proofpoint’s ability to conduct discovery concerning those matters.

The court denied Vade’s request to strike portions of Proofpoint’s expert opinions concerning Vade’s Content Filter. The court found that Vade had been aware that the Content Filter was implicated through earlier discovery disputes, discovery responses, and related materials, so Vade’s claim of surprise was not persuasive.

Disposition

The order states that Proofpoint’s requests were granted and Vade’s requests were denied. Specifically, Vade’s motion to compel was denied; Proofpoint was allowed to file supplemental expert reports; Vade’s request to strike those supplemental reports was denied; the identified portions of Vade’s rebuttal reports were stricken; and Vade’s request to strike Proofpoint’s Content Filter-related expert opinions was denied.