United States District Court, D. New Hampshire
General Linen Service, Inc.
General Linen Services, LLC Opinion No. 2015 DNH 165
Sara Yevics Beccia, Esq.
Dennis J. Kelly, Esq.
James F. Laboe, Esq.
Laura Witney Lee, Esq.
Paul R. Mastrocola, Esq.
Joseph Gardner Mattson, Esq.
Jeffrey C. Spear, Esq.
LANDY A. MCCAFFERTY UNITED STATES DISTRICT JUDGE.
General Linen Service, Inc. (“GL-N”) has sued its competitor, General Linen Services, LLC (“GL-S”), asserting that GL-S unlawfully accessed the GL-N computer system and obtained information that it later used to solicit business from GL-N’s customers. Before the court is GL-S’s motion to exclude certain portions of a report prepared by GL-N’s expert witness. GL-S claims it is entitled to such relief under Rule 37(c)(1) of the Federal Rules of Civil Procedure. GL-N objects. For the reasons that follow, GL-S’s motion to exclude is denied.
In an expert report, timely disclosed by GL-N, Anthony Albright opined that as a result of GL-S’s unlawful acts, GL-N suffered damages of $793, 307, based upon: (1) diminished revenue resulting from the renegotiation of contracts with several of its customers; (2) the loss of 10 customers; and (3) the loss of 33 prospective customers. That amount of damages is more than $600, 000 greater than any previous estimate of damages by GL-N.
GL-S does not object to GL-N’s reliance upon Albright’s opinion on losses resulting from renegotiated contracts. But, it contends that evidence concerning approximately five lost customers and all of the lost prospective customers should be excluded, because up until GL-N disclosed Albright’s report, its discovery responses had identified only about five, rather than 10, lost customers and said nothing about potential customers it had lost.
The authority upon which GL-S relies for its request for exclusion provides, in pertinent part:
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or harmless.
Fed. R. Civ. P. 37(c)(1). GL-S does not appear to claim that GL-N has failed to comply with Rule 26(a), which pertains to required disclosures. Rather, GL-S bases its argument on a purported violation of Rule 26(e), which pertains ...