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All-Tag Corp. v. Checkpoint Systems, Inc.

United States District Court, S.D. Florida

October 7, 2019

All-Tag Corp., Plaintiff,
v.
Checkpoint Systems, Inc., Defendant.

          ORDER DENYING DEFENDANT CHECKPOINT'S MOTION TO STRIKE [DE 216]

          WILLIAM MATTHEWMAN, UNITED STATES MAGISTRATE JUDGE.

         THIS CAUSE is before the Court on Defendant Checkpoint's Motion to Strike All-Tag Corp.' s Amended Rule 26 Disclosures of Prior Lawsuit Deponent, and to Exclude Their Testimony, or in the Alternative for Limited Discovery Extension [DE 216] ("Motion to Strike"). This matter was referred to the undersigned by United States District Judge William P. Dimitrouleas. [DE 51]. Plaintiff filed a response on October 1, 2019. [DE 244');">244]. Defendant failed to reply to Plaintiffs response.[1" name="FN1">1] Accordingly, this matter is ripe for review. For the reasons set forth below, the Court DENIES Defendant Checkpoint's Motion to Strike.

         I. Background

         The history and current procedural posture of this case is important to the Court's determination of the two pending motions. This case was filed on November 17, 2017, almost two years ago. [DE 1]. On May 4, 2018, the Court entered a scheduling order setting the trial period in this case for January 6, 2020, with a discovery cutoff date of September 6, 2019. [DE 43]. On April 4, 2019, the Court entered an order [DE 104] setting the following expert disclosure deadlines:

111111">

Plaintiff s Expert Report and Disclosures

137">

June 21, 2019

Defendant's Expert Report and Disclosures

137">

June 22, 2019

Rebuttal Expert Reports

137">

August 5, 2019

Expert Discovery Cutoff

137">

September 11, 2019

         On May 18, 2018, the Court amended its prior scheduling order, keeping the same trial date and pre-trial schedule, but including a notation to reflect the correct paired magistrate judge. [DE 51]. On June 5, 2019, the Court extended the discovery cut-off from September 11, 2019, to September 18, 2019. [DE 164]. Thereafter, the parties agreed to, and the Court adopted and ordered [DE 167], the following amended expert disclosure deadlines:

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Affirmative Expert Reports

165">

July 17, 2019

Completion of Depositions of All Experts

165">

August 9, 2019

Rebuttal Expert Reports

165">

August 23, 2019

Completion of Depositions of Rebuttal Experts

165">

September 18, 2019

Fact and Expert Discovery Cutoff

165">

September 18, 2019

         Thus, it is important to the Court's determination of the parties' two pending motions addressed in this Order that the expert discovery deadlines have passed, discovery is closed, substantive pre-trial motions are due October 11, 2019, Daubert motions are due 60 days before the start of the trial's two-week period, and the trial period begins January 6, 2020. [DE 51].

         Further, this case has been extremely and unnecessarily litigious, especially in the discovery phase. The parties (and certain non-parties from whom discovery was sought) have filed countless discovery motions, responses, and replies, many under seal. The Court, in an effort to get the parties to cooperate, has required the parties to file numerous joint notices regarding the numerous discovery disputes. To keep this case on track, the undersigned has held lengthy discovery hearings on November 30, 2018 [DE 73], May 6, 2019 [DE 131], May 15, 2019 [DE 144], June 6, 2019 [DE 165], August 23, 2019 [DE 200], and September 23, 2019 [DE 232].

         Not counting this Order, the Court has had to enter no less than 12 substantive discovery orders [DEs 75, 104, 122, 132, 134, 143, 147, 164, 166, 167, 168, and 263], and no less than 34 procedural discovery orders [DEs 65, 68, 99, 100, 107, 109, 111, 115, 119, 129, 137, 138, 148, 155, 156, 160, 190, 192, 194, 198, 204, 210, 219, 221, 225, 226, 238, 243, 251, 252, 253, 260, 261, and 263]. Further the parties have filed yet more discovery-related motions-after the discovery cutoff date-that remain pending. [DEs 236/239, 237/240].

         With this background in mind, the Court now turns to Defendant's Motion to Strike.

         II. Pending Dispute Underlying Defendant Checkpoint's Motion to Strike [DE 216]

         The Court's May 16, 2019 Order [DE 147], required Defendant Checkpoint to produce certain deposition transcripts from a prior lawsuit[2] (the "USS Transcripts") and ordered Plaintiff All-Tag to promptly inform Defendant whether it intends to rely on any of the USS Transcripts in support of any motion or introduce any of the depositions as substantive evidence at trial. Then, at a subsequent June 6, 2019, hearing, the Court, upon Defendant's request, ordered Plaintiff to inform Defendant of its intended use of any of the USS Transcripts by June 20, 2019. [DE 216-1, p. 24-25].

         Defendant's Motion to Strike [DE 216] takes issue with Plaintiffs amended Rule 26 disclosures regarding five witnesses: George Babich, Per Levin, Carlos Perez, Dan Reynolds, and Sean Ryan. [DE 216]. Plaintiffs response [DE 244');">244], however, specifically states that it is not seeking to rely on the Perez, Reynolds, or Ryan deposition testimonies as affirmative evidence. [DE 244');">244, p. 2]. Thus, Plaintiff asserts that the only testimonies ...


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