Loggerhead Tools, LLC v. Sears Holdings Corp., No. 12-CV-9033, Slip Op. (N.D. Ill. Sep. 20, 2016) (Darrah, J.).

Judge Darrah granted plaintiff Loggerhead’s Fed. R. Civ. P. 37 motion to exclude late-produced financial information and rebuttal damages expert opinions relying upon the late-produced information in this IP case involving the Bionic Wrench.

Defendants produced a number of documents detailing advertising expenses concurrently with their rebuttal expert report, which the expert relied upon in forming certain opinions. As an initial matter, the Court held that the documents were not timely produced, for at least the following reasons:

  • The documents were responsive to production requests for documents discussing, referring or relating to the “allocation of costs,” as well as requests for “marketing, advertising, or promotion” documents.
  • The fact that certain spreadsheets were contained in emails and that those emails were not captured in the search results pursuant to the parties’ email production protocol, did not relieve defendants of the duty to produce the spreadsheets that presumably existed elsewhere in electronic form.
  • Even if defendants believed the documents were not responsive to the requests, they were on notice that the documents were responsive and relevant to the damages analysis as soon as Loggerhead served its damages expert report.

Finally, defendants’ late production was not harmless because providing new information relevant to Loggerhead’s damages expert’s opinions late in the litigation was prejudicial. And as expert discovery closed and trial was approximately one month away, there was only a limited ability to cure the prejudice.