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UMG Recordings, Inc. v. Grande Communications Networks LLC

United States District Court, W.D. Texas, Austin Division

July 16, 2019




         Before the Court are Grande's Motion to Strike “Rebuttal” Expert Report of Barbara Fredericksen-Cross (Dkt. No. 176); and UMG's Motion to Strike as Untimely the “Supplemental” Expert Report Opinions of Dr. Geoff Cohen Concerning the Rightscorp Downloaded Audio Files and Notices (Dkt. No. 271), along with their associated responses and replies. The District Court referred the discovery dispute to the undersigned Magistrate Judge for resolution pursuant to 28 U.S.C. § 636(b)(1)(A), Fed.R.Civ.P. 72, and Rule 1(c) of Appendix C of the Local Rules.

         I. BACKGROUND

         Both of these motions address reports submitted by each side's computer expert, and each motion seeks to strike all or part of the testimony offered in the reports. In the way of background, Barbara Fredericksen-Cross is UMG's computer expert, and she has been designated to offer opinions related to the Rightscorp infringement detection and notification system that was used to create much of the evidence UMG relies on to show that Grande's customers were infringing on UMG's copyrights. Geoff Cohen is also a computer expert, and Grande has designated him to testify on the functionalities of the Rightscorp system and to rebut the testimony of Fredericksen-Cross. In a nutshell, Cohen has opined that the Rightscorp system is only capable of detecting when a file is made available for sharing, and is “incapable of detecting uploads, downloads or actual sharing on peer-to-peer networks.” Dkt. No. 232-1 at ¶ 25. The scheduling order in this case set deadlines for the disclosure of experts and the service of reports. Consistent with the schedule (as amended by the attorneys' agreement), UMG served on Grande an initial report from Fredericksen-Cross dated July 27, 2018, Grande served an initial report from Cohen dated August 17, 2018, and UMG served a rebuttal report from Fredericksen-Cross dated August 31, 2018. Cohen did not produce a rebuttal report (presumably because his initial report included his response to, and criticism of, Fredericksen-Cross's report). Fredericksen-Cross was deposed on October 18, 2018, and Cohen was deposed on November 8, 2018.


         A. Grande's Motion to Strike Fredericksen-Cross Rebuttal Report (Dkt. No. 176)

         In this motion Grande moves to strike Fredericksen-Cross's rebuttal report, characterizing it as a “sur-rebuttal” report. Grande complains that Fredericksen-Cross's rebuttal report responds to Cohen's report. In Grande's view, “the Court's Scheduling Order does not authorize the parties to serve . . . rebuttal reports in response to rebuttal reports.” Dkt. No. 176 at 1. This argument is meritless.

         The fallacy of Grande's position is its characterization of its own expert's report as a “rebuttal” report. In fact it was his primary report. The scheduling order makes this quite clear. That order provided three deadlines for designating experts: one for “parties asserting claims for relief” (i.e., UMG), another for “parties resisting claims for relief” (i.e., Grande), and then one for both parties-“rebuttal experts, ” whose reports were due within 30 days of the date “of receipt of the report of the opposing expert.” Dkt. No. 66 at ¶ 2. Cohen's report fell within the second category-the report of an expert retained by Grande, the party “resisting claims for relief.” The scheduling order plainly allows both parties to submit rebuttal reports to the reports served by their opponent's experts. Thus, it was perfectly within the dictates of the scheduling order for Fredericksen-Cross to serve a report rebutting Cohen's opinions after Cohen submitted his initial report.[1]

         Grande also complains that in her rebuttal report, Fredericksen-Cross corrected or modified statements from her original report. Thus, in response to Cohen pointing out that she inaccurately described the “SampleIt3” function of the software, the rebuttal report states that “Dr. Cohen is correct that there is a typographical error in my report, ” and states that “[t]he typographical error is hereby corrected, ” to reflect that SampleIt3 downloads song copies “from the selected torrent” instead of “from a single Peer.” Dkt. No. 177-3 at ¶ 38. There is nothing objectionable about such a change, as it was plainly a response to Cohen's report, and Grande's belief that Fredericksen-Cross's claim that this was a typographical error “is not credible, ” Dkt. No. 176 at 9, is not a proper basis for denying her the ability to correct her error. The same is the case with regard to Fredericksen-Cross correcting some of the statements in her original report to reflect that the functions she had attributed to “Infringement Bot” in her original report are carried out in the newer version of the Rightscorp software by functions called “Pocket” and “Memphis.” See Dkt. No. 176 at 8-9. Correcting errors and responding to the associated criticism raised by an opposing expert is a proper use of a rebuttal report.

         Finally, Grande contends that the rebuttal report should be stricken because in it Fredericksen-Cross relies on evidence Grande claims was “never identified by Plaintiffs in discovery, ” and because Fredericksen-Cross “did not identify or cite” to that evidence in her original report. Dkt. No. 176 at 8. The specific evidence that Grande refers to here is a collection of files UMG represents are digital copies of song files that Rightscorp downloaded from Grande users who were wrongfully offering those songs for copying. At various points in this case, Grande has complained about these files being “new” evidence or a “new theory.” See, e.g., Dkt. No. 201 at 11-15. But in fact, UMG referenced these files in its original complaint, Dkt. No. 1 at ¶ 43, referred to them during the argument on the motion to dismiss, Dkt. No. 64 at 31-32, produced them to Grande in April 2018, Dkt. No. 172 at 13 n.7, and identified them in an interrogatory response, Dkt. No. 173-96 at 3. This evidence is not new. Nor is there anything wrong with Fredericksen-Cross pointing to it to support her view that Cohen's opinions are incorrect. Accordingly, Grande's motion to strike Fredericksen-Cross's rebuttal report will be denied.

         B. UMG's Motion to Strike Supplemental Cohen Report Opinions (Dkt. No. 271)

         As noted above, in his initial report, Cohen reached the conclusion that the Rightscorp system is “incapable of detecting uploads, downloads or actual sharing on peer-to-peer networks.” In her rebuttal report, Fredericksen-Cross criticized this conclusion, and argued it was inconsistent with the fact that Rightscorp had claimed to have downloaded 59, 000 files from Grande customers offering to share those files through BitTorrent. Many months later, on March 8, 2019, Grande served on UMG a supplemental expert report from Cohen. That report discusses a number of topics not addressed in Cohen's original report, and includes an in depth review and analysis of the 59, 000 files that were included on the hard drive UMG produced to Grande in April 2018. In short, UMG contends that “[a]lthough Grande styled it as a ‘supplemental' report, in reality it is a substantial do-over of Cohen's opinions concerning the Rightscorp system. Nothing justifies this second bite at the apple, and allowing these new opinions so late in the proceedings would prejudice [Grande].” Dkt. No. 271 at 1. Accordingly, UMG asks that the Court preclude Grande from offering at trial the opinions included in four sections of Cohen's supplemental report, Sections VI, VII, VIII, and X.[2]

         The four sections of Cohen's report at issue here are titled: “The Rightscorp Peer Download Proeess” (§ VI); “Analysis of the Hard Drive” (§ VII); “Rightscorp Notices are Unreliable and Unsubstantiated” (§ VIII); and “The Hard Drive Fails to Substantiate the Notices” (§ X). Though each section addresses separate topics, Grande does not differentiate among them in its response, and offers a single explanation for the late supplement-these portions of the report all relate to “a hard drive of files that Rightscorp, Plaintiffs' litigation consultant, claims to have downloaded from users of Grande's network, ” and UMG's motion

is baseless because Plaintiffs' technical expert-whose opinions Dr. Cohen was rebutting-did not rely on or analyze the hard drive files in her opening report. Furthermore, Plaintiffs produced an array of additional evidence regarding the hard drive files after Dr. Cohen served his initial report, and his ...

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