Bernstein v. Cengage Learning, Inc.
- Andrew Carter
- 1:19-cv-07541
- U.S. District Court · Southern District of New York
- 4
In Bernstein v. Cengage Learning, Judge Cave granted Plaintiffs’ request for a pre-motion conference about allegedly late witness disclosures.
The ruling affected Plaintiffs and Cengage Learning, Inc. by setting a pre-motion conference about Cengage’s allegedly late-disclosed witnesses and declarations; it did not decide whether the declarations could be used.
What happened
In Bernstein v. Cengage Learning, Plaintiffs asked to discuss striking 11 declarations that Cengage submitted for its opposition to class certification. Plaintiffs argued that Cengage disclosed the witnesses too late under the federal discovery rules.
Plaintiffs said seven witnesses were disclosed about two weeks before discovery closed and four were disclosed more than two months afterward. They argued the late disclosures prevented them from taking depositions and seeking documents, and that the violation was neither justified nor harmless. The opinion does not decide whether the declarations should ultimately be stricken.
Judge Sarah L. Cave granted Plaintiffs’ request for a pre-motion conference, set a telephonic conference for March 3, 2023, and directed the Clerk to close the filing associated with the request.
The detailed version
- Bernstein v. Cengage Learning, Inc. · No. 1:19-cv-07541
- Andrew Carter
- Feb. 15, 2023
Background
Plaintiffs requested a pre-motion conference concerning an anticipated motion to strike class-certification declarations submitted by Cengage Learning, Inc. Plaintiffs argued that Cengage failed to timely disclose 11 witnesses under Federal Rule of Civil Procedure 26. Seven witnesses were disclosed on September 20, 2022, about two weeks before the October 3 discovery deadline. Four additional witnesses were disclosed on December 12, 2022, more than two months after the discovery deadline and shortly before Cengage filed its opposition to Plaintiffs’ class-certification motion.
The witnesses included Cengage employees Heather Bradley Cole, Jason Fremder, and Lara Semones, identified as Product Managers, and author Barry Babin, as well as seven other authors. Plaintiffs argued that Cengage submitted declarations from all 11 witnesses to support its position that individualized issues predominated over common issues. Plaintiffs also argued that Cengage had previously refused discovery involving Product Managers and their communications with authors about digital royalty allocations and royalty calculations.
Legal framework and arguments
Rule 26 generally requires parties to disclose individuals who may have discoverable information and whom they may use to support claims or defenses. Rule 37(c)(1) generally bars a party from using information or a witness that it failed to disclose as required by Rule 26, unless the failure was substantially justified or harmless. Plaintiffs argued that Cengage’s late disclosures were neither substantially justified nor harmless and that the declarations should therefore be excluded.
The opinion text primarily presents Plaintiffs’ arguments and authorities concerning the anticipated motion to strike. It does not contain a ruling deciding whether Cengage violated Rule 26, whether the violations were justified or harmless, or whether the 11 declarations should be stricken.
Ruling
Judge Sarah L. Cave granted Plaintiffs’ letter-motion requesting a pre-motion conference. The court ordered a telephonic conference for Friday, March 3, 2023, at 3:00 p.m., and directed the Clerk of Court to close ECF No. 193. The order did not grant or deny the anticipated motion to strike, and it did not resolve the parties’ dispute over the declarations.
Effect
The ruling addressed scheduling and the requested pre-motion conference only. The opinion does not state the outcome of any later motion to strike or the outcome of the class-certification motion.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.