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Hamilton County Emergency Communications District v. Level 3 Communications, LLC

United States District Court, E.D. Tennessee

October 23, 2019

HAMILTON COUNTY EMERGENCY COMMUNICATIONS DISTRICT, et al., Plaintiffs,
v.
LEVEL 3 COMMUNICATIONS, LLC, Defendant.

          ORDER

          SUSAN K. LEE, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is a motion to strike the allegedly late-filed report of one of the Plaintiffs' experts filed by Defendant Level 3 Communications LLC (“Level 3”) [Doc. 97]. Plaintiffs, fifteen different Tennessee emergency communications districts (the “Districts”), filed a response in opposition [Doc. 101], and Level 3 filed a reply [Doc. 102]. The motion is now ripe, and the Court finds a hearing is not necessary. The motion will be denied.[1]

         I. BACKGROUND

         The overall dispute in this case and related cases concerns funding for 911 emergency call centers, which is accomplished through a “charge” levied on phone users.[2] Telecom companies that supply phone lines and service, like Level 3, are (or at all times relevant, were) required by law to collect the charge from their customers, and remit the payment to the Districts that operate the 911 call centers. The Districts allege Level 3 wrongfully failed to bill or underbilled their customers, which resulted in losses to the Districts' funding.

         The instant motion concerns the expert report of Randall Hebert, the Districts' damages expert (“Herbert”). As Hebert put it, he was retained to “develop an independent opinion relative to statistical estimation of missing data and the calculation of damages relative to the [Districts] and remittance of fees collected on lines supplied by the Defendant.” [Doc. 97-1 at Page ID # 2416]. Simply stated, the reports include calculations of damages based on the number of phone lines multiplied by the applicable rate as compared to the amount remitted, calculated on a month-by-month basis from June 2004 through December 2014. Hebert determined the number of phone lines by reference to documents known as Wireline Activity Reports (“WARs”). These are reports Level 3 produced monthly, on a contemporaneous basis, during the relevant time period for the Tennessee Regulatory Agency.

         Hebert's initial report was served on July 31, 2019 (“July Report”), followed by an amended report on September 13, 2019 (“September Report”). When Hebert initially prepared these reports, he apparently did not have WARs for the months of January 2012 through December 2014. For those months, Hebert used statistical estimation methods to determine the number of phone lines.

         Hebert was deposed on September 23, 2019. During his deposition, Level 3 questioned Hebert about why he did not use the phone line count numbers from the 2012-2014 WARs. Hebert agreed that using the WAR line counts would be preferable and more accurate. The Districts contend that “immediately following the deposition, ” they determined Level 3 had indeed provided the Districts with the 2012-2014 WARs, but due to technological problems on the Districts' side, these two years' worth of WARs were never provided to Hebert [Doc. 101 at Page ID # 2617].

         On September 30, 2019, Level 3 served its rebuttal expert report, from Brian Pitkin. Pitkin identified several issues with Hebert's September Report, including some “data and formula entry errors.” [Doc. 97-2 at Page ID # 2467]. Then, on October 10, 2019, the Districts served Hebert's second amended expert report (“October Report”), in which Hebert corrected the data and formula entry errors identified by Pitkin, and, importantly for current purposes, incorporated the data from the 2012-2014 WARs that had been previously overlooked by the Districts.

         In the instant motion, Level 3 argues the October Report is untimely and improper. Level 3 asks the Court to strike the October Report from these proceedings pursuant to Federal Rule of Civil Procedure 37. In the alternative, if the October Report is allowed, Level 3 asks the Court to order the Districts to “reimburse Level 3 for the additional costs [it] will incur as a result of the late-filed report, ” including the costs of filing the motion, as well as for further deposition of Hebert and to pay Pitkin to review Hebert's latest work [Doc. 97 at Page ID # 2412-13].

         II. STANDARDS

         Federal Rule of Civil Procedure 26(a)(2)(B) requires a party to make certain expert disclosures and reports. The rule provides that, unless a stipulation or court order says otherwise, the expert's disclosure “must be accompanied by a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.” The rule requires the report to contain: “(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; [and] (iii) any exhibits that will be used to summarize or support them[.]” Fed.R.Civ.P. 26(a)(2)(B)(i)-(iii).

         Rule 26(e) describes a party's duty “to ‘supplement or correct' its initial disclosure.” Bentley v. Highlands Hosp. Corp., No. CV 15-97-ART-EBA, 2016 WL 5867496, at *3 (E.D. Ky. Oct. 6, 2016) (quoting Fed.R.Civ.P. 26(e)(1)). Specifically, Rule 26(e) provides:

(1) In General. A party who has made a disclosure under Rule 26(a) . . . must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other ...

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