Victor Porfirio Baloa Diaz, et al. v. EDI Korta LLC, et al.

Summary

This omnibus order addresses motions concerning expert-witness disclosures, exclusion of untimely expert opinions, application of foreign law, and judicial notice in a copyright-infringement action. The court grants Plaintiffs’ motion to exclude Defendants’ expert’s untimely non-damages opinions and considers Defendants’ motion to strike Plaintiffs’ handwriting expert, along with related motions.

Holdings

1. A party may not use a rebuttal expert disclosure to introduce untimely affirmative opinions addressing liability rather than rebutting the opposing party’s expert opinions on the same subject. The non-damages portions of Zigel’s report were subject to exclusion under Rules 26(a)(2) and 37(c)(1), and were stricken.
2. Plaintiffs’ handwriting expert was properly excluded because the eleven-week delay in serving his report was neither substantially justified nor harmless.
3. The Venezuelan-law declaration was not subject to striking because defendants had already raised Venezuelan-law issues in their summary-judgment motion, thereby providing notice under Rule 44.1, and Rule 44.1 does not impose Rule 26(a)(2)’s expert-disclosure deadlines.
4. The Court may take judicial notice of publicly recorded U.S. Copyright Office catalog entries to establish the contents and public record of the registrations, without treating judicial notice as proof of the truth of disputed underlying assertions.

Questions Presented

1. Whether defendants’ untimely affirmative, non-damages opinions in Leslie Zigel’s purported rebuttal expert report should be excluded under Rules 26 and 37.
2. Whether plaintiffs’ late disclosure of handwriting expert F. Harley Norwitch was substantially justified or harmless under Rule 37(c)(1).
3. Whether plaintiffs’ Venezuelan-law declaration had to be stricken for lack of timely notice under Rule 44.1.
4. Whether the Court could take judicial notice of public U.S. Copyright Office catalog entries for three sound-recording registrations under Rule 201(b).

Disposition

other