Joint Stock Company Channel One Russia Worldwide v. Infomir LLC

Background

The parties submitted a letter application seeking another extension of the deadline for expert discovery. The plaintiffs also moved for reconsideration of paragraph 4 of the court’s August 19, 2020 discovery order. Paragraphs 1 and 2 of that order barred broad pre-deposition expert-discovery demands directed to Infomir and Stroz Friedberg, the employer of Infomir’s disclosed trial expert Christopher Rucinski. Paragraph 3 directed the parties to meet and confer about an exchange of documents connected to the experts’ expected trial testimony.

Paragraph 4 stated that the order did not prevent the parties, during or after the expert depositions, from seeking additional tailored discovery of non-privileged matters within Federal Rule of Civil Procedure 26 and not barred by the court’s September 26, 2019 opinion and order. The court had previously directed the parties to take the depositions first and then address any reasonable follow-up requests prompted by the testimony.

The plaintiffs argued that reconsideration was warranted because they learned that William Rosenblatt had consulted for Infomir concerning the earlier PCAP dispute, because the court had not reviewed the experts’ rebuttal reports before issuing the August 19 order, and because the court had allegedly made a legal error by excluding information considered during that earlier dispute. The opinion states that the parties had met and conferred and that Infomir had produced some requested information and documents. It also states that no expert depositions appeared to have occurred by that point.

Legal standard and analysis

The court described reconsideration as a strict and extraordinary remedy. A moving party must show that the court overlooked controlling decisions or material facts presented earlier and that the overlooked matters might have changed the result. New facts or theories generally may not be presented at that stage, except in circumstances such as an intervening change in controlling law, newly available evidence, or the need to correct clear error or prevent serious injustice.

The court rejected each of the plaintiffs’ stated grounds. First, it found that Rosenblatt’s consulting role in the PCAP dispute had been disclosed during the August 18 discovery conference, rather than for the first time later. Second, it found that the rebuttal reports were not new evidence or overlooked material because the plaintiffs had the reports but had not submitted them to the court before the August 19 order. Third, the court said it had not excluded all information considered by the experts during the PCAP dispute. Instead, it had managed the timing and sequence of discovery and had limited discovery to non-privileged matters within Rule 26 that were not barred by the earlier PCAP sanctions order.

The court explained that Rule 26 generally permits discovery of facts or data considered by an expert in forming trial opinions, while protecting expert drafts and most communications with counsel as attorney work product. It stated that whether earlier expert work is discoverable can depend on whether that work directly relates to the planned trial testimony, including what the expert says at deposition. Because paragraph 4 allowed the plaintiffs to seek additional permissible disclosure after the depositions if the testimony showed it was warranted, the court concluded that paragraph 4 was an appropriate exercise of its discovery-management discretion and not a reversible legal error.

Rulings

Magistrate Judge Barbara Moses granted the parties’ request for a further extension of the expert-discovery deadline. The parties were allowed four additional weeks, through October 28, 2020, to conduct all expert depositions.

Judge Moses denied the plaintiffs’ motion for reconsideration of paragraph 4 of the August 19, 2020 order. The clerk was directed to close the motions at docket numbers 843 and 848. The opinion did not decide the underlying merits of the parties’ dispute.