Blue Bottle Coffee, LLC v. Liao

Background

Blue Bottle Coffee, LLC sued Hui Chuan Liao and Southern Technologies, LLC over alleged trademark and trade dress infringement. The defendants filed counterclaims. Blue Bottle moved to strike three rebuttal expert reports prepared by the defendants’ expert, Rhonda Harper.

Blue Bottle had served expert reports addressing corrective-advertising damages, the distinctiveness of its marks, and the likelihood that consumers would associate the defendants’ branding with Blue Bottle’s branding and marks. The defendants later served three Harper Reports addressing consumer confusion. The defendants described the reports as rebuttal reports and said they provided survey evidence supporting non-infringement.

The parties’ arguments

Blue Bottle argued that the Harper Reports were actually opening expert reports and therefore should have been served by the earlier opening-report deadline. The defendants argued that the reports were timely under the parties’ earlier definition of rebuttal reports, which included reports on issues for which the party with the burden of proof had not provided an expert report. The defendants also argued that the Harper Reports rebutted Blue Bottle’s expert reports because both sets of reports addressed the likelihood of consumer confusion.

The court had previously clarified that the newest scheduling order’s reference to “rebuttal expert reports” was shorthand and did not change the parties’ earlier agreed definition. The court therefore considered whether the Harper Reports addressed an issue on which the party with the burden of proof had not provided an expert report.

Court’s analysis

The court found that the defendants’ position was contradictory because they acknowledged that Blue Bottle’s experts had addressed the likelihood of consumer confusion—the same subject covered by the Harper Reports. The Harper Reports therefore did not qualify as timely rebuttal reports under the scheduling orders.

The court also concluded that the reports did not qualify as rebuttal reports under Federal Rule of Civil Procedure 26(a)(2)(D)(ii), which permits testimony intended solely to contradict or rebut another party’s expert evidence on the same subject. The Harper Reports did not list Blue Bottle’s expert reports among the materials reviewed or considered, did not mention Blue Bottle’s experts, and two reports were dated May 5, 2023—17 days before Blue Bottle served its expert reports on May 22, 2023. The defendants did not explain how Harper could rebut reports that she had not identified or shown that she had reviewed.

Because the reports did not qualify as rebuttal reports, the court applied Rule 37(c)(1). That rule generally prevents a party from using information or a witness at a motion, hearing, or trial when the required disclosure was not made, unless the failure was substantially justified or harmless. The court rejected the defendants’ arguments that their reliance on the earlier scheduling orders substantially justified the late reports. It also rejected the argument that the late disclosure was harmless because Blue Bottle could depose Harper and had an opportunity to serve reports on a similar subject. The court found that Blue Bottle would suffer obvious prejudice because it could not offer an opposing expert without further delaying the case schedule.

Disposition

Chief Magistrate Judge Donna M. Ryu granted Blue Bottle’s motion to strike the Harper Reports. The defendants were precluded from relying on those reports in a motion, at a hearing, or at trial. The court denied the defendants’ motion for sanctions under Federal Rule of Civil Procedure 37(a)(5)(B).