This blog previously discussed various rulings in Earthcam, Inc. v. Oxblue Corporation. (click here and here). This blog entry deals with Earthcam’s belated attempt to make an expert designation.
Early on in the case, the Court had held a status conference regarding the progress of discovery. The Court had suggested in this meeting that the parties retain a neutral forensic expert to assist with the evaluation of Earthcam’s allegations that Oxblue had intruded into Earthcam’s computer systems. Per the Court’s suggestion, the parties retained Greg Freemyer to act as a neutral expert.
The Court did not limit the parties’ ability to designate their own experts. The parties later submitted a joint discovery plan containing a proposed discovery schedule for the case. The plan provided that the parties would designate their own technical experts on or before July 5, 2012.
After discovery had advanced, Earthcam filed a motion to extend discovery. Among other things, Earthcam sought leave of court to make an out-of-time designation of a technical expert. Earthcam claimed it did not timely designate its technical expert because the parties’ joint retention of Mr. Freemyer had prevented Earthcam from engaging its own expert witness. Earthcam also argued that Oxblue’s rolling production of documents kept Earthcam from discovering that it needed to engage its own expert until after the expert deadline had expired.
The Court rejected Earthcam’s argument based on the parties’ joint retention of Mr. Freemyer, as the Court had never ordered or otherwise indicated that Earthcam could not retain its own expert. The Court noted that the parties’ joint discovery plan specifically contemplated that the parties could retain their own technical experts.
Regarding Earthcam’s second argument, Earthcam pointed to the fact that thousands of pages of e-mails and documents had been produced after the expert designation deadline. Earthcam relied on the fact that after reviewing those documents, Earthcam decided it needed to hire a technical expert to examine its competitor’s cameras and to document the use of Earthcam’s technology in such cameras. Thus, according to Earthcam, its delay in designating a technical expert was dude to Oxblue’s belated production.
Oxblue acknowledged at least one document which Earthcam relied upon to justify its request for a belated designation was not produced until after the expert deadline. Based on this, the Court granted Earthcam’s request for leave to designate a technical expert.
Earthcam, Inc. v. Oxblue Corporation is a helpful reminder that the deadlines for making expert designations in federal court are significantly stricter than in many state courts. Attorneys must always be diligent in making their expert designations in compliance with the federal and local rules.
Stay tuned for a final blog entry regarding Earthcam, Inc. v. Oxblue Corporation….
Neal Weinrich knows noncompetes and trade secrets inside and out. A shareholder at Berman Fink Van Horn, Neal counsels clients in all industries on matters involving restrictive covenants, trade secrets and other competition-related issues.
