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Syngenta Crop Protection, LLC v. Willowood, LLC

United States District Court, M.D. North Carolina

August 2, 2017



          Catherine C. Eagles, District Judge.

         Through three motions in limine, Syngenta seeks to preclude Willowood from using recently disclosed witnesses and documents at the upcoming trial. This evidence concerns whether the process for manufacturing Willowood's azoxystrobin technical infringes the ‘138 and ‘761 patents and whether there are non-infringing alternatives to the patented processes.[1] Because Willowood's late disclosure was not substantially justified and is not harmless, the Court will grant the motions in limine and exclude Willowood's late-disclosed witnesses and documents.

         The trial of this case will begin on September 5, 2017. Doc. 136 at ¶ 1. Pursuant to the Court's orders, Willowood and Syngenta exchanged pretrial disclosures on May 25, 2017 and then filed them on June 1, 2017. See Docs. 188, 189. In its pretrial disclosures, Willowood identified several witnesses it intended to call to testify at trial who had not been listed as potential witnesses in its Rule 26 initial or supplemental disclosures. Compare Doc. 188-1 at 2 with Doc. 120-5 at 2 and Doc. 118-2 at 2-6.[2] On the 3rd and 5th of July 2017, Willowood identified and provided copies of several documents as trial exhibits which it had not previously disclosed during discovery. Doc. 256-1 at ¶¶ 9-10. Syngenta moves to preclude these witnesses from testifying and to exclude the documents from evidence under Federal Rule of Civil Procedure 37(c). Doc. 213; Doc. 214 at 24-25, 28-29; Doc. 242.[3]

         Early in the litigation, a litigant must disclose the information and witnesses that it “may use to support its claims or defenses.” Fed.R.Civ.P. 26(a)(1)(A)(i). “The purpose of Rule 26(a) is to allow the parties to adequately prepare their cases for trial and to avoid unfair surprise.” Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 396 (4th Cir. 2014). A party must also supplement its disclosures if it obtains new information, “if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e)(1)(A).

         Federal Rule of Civil Procedure 37(c) provides “strong inducement” for following the disclosure requirements of Rule 26(a) and (e). Fed.R.Civ.P. 37(c) Advisory Comm. Notes (1993). “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 . . . at trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1).

         The Fourth Circuit considers the following factors to be “helpful in determining whether a party's nondisclosure of evidence was substantially justified or harmless:”

(1) the surprise to the party against whom the evidence would be offered; (2) the ability of the party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence.

S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596-97 (4th Cir. 2003). The first four factors “relate primarily to the harmlessness exception, while the last factor, addressing the party's explanation for its nondisclosure, relates mainly to the substantial justification exception.” Bresler v. Wilmington Tr. Co., 855 F.3d 178, 190 (4th Cir. 2017).

         Whether the late-disclosed evidence is harmful to the opposing party often depends on whether any resulting surprise, or prejudice, to the opposing party can be cured. See S. States, 318 F.3d at 596. For instance, in Bresler, the Fourth Circuit upheld the admission of a new damages calculation as harmless because surprise was minimal when the new calculation decreased damages and the opposing party had notice of the damages theory and did not take steps to cure potential harm despite having the exhibit for two months before trial. 855 F.3d at 193-94. In contrast, the Fourth Circuit upheld the exclusion of a new witness and new evidence disclosed two months before trial to prevent unfair surprise when the defendant did not identify its own employee as a potential witness and when the new evidence presented “an entirely new factual basis” for its defense. Russell, 763 F.3d at 397-98.

         Disruption to trial also weighs against admission of late disclosed evidence. Additional rounds of depositions and supplemental reports and briefing would completely disrupt the trial schedule, and ongoing objections to an undisclosed witness' testimony and evidence offered in rebuttal disrupt the trial itself. See BorgWarner, Inc. v. Honeywell Int'l, Inc., 750 F.Supp.2d 596, 605-06 (W.D. N.C. 2010) (excluding testimony by a late-disclosed expert).

         1. The Evidence at Issue

         Willowood proposes to call five witnesses and to offer into evidence two new groups of documents, none of which were previously disclosed as witnesses and information that it might use “to support its claims or defenses.” Fed.R.Civ.P. 26(a)(1)(A); see Doc. 188-1 (listing witnesses); Doc. 220 (adding Exhibits 167-69).

         Willowood proposes to call three of its own employees as witnesses. Matt Heinze would be asked questions about various emails that he wrote or received on Willowood's pricing, sales, and marketing of azoxystrobin and that Syngenta plans to place in evidence. Rajesh Jain and Sophia Wang would be asked questions about various emails that they wrote or received concerning the etherification and condensation steps of the manufacturing process.

         The first group of documents consists of process descriptions from third-party manufacturers, particularly CAC Chemical and an Indian manufacturer, on how they manufacture azoxystrobin. See Doc. 256-1 at ΒΆ 10; Doc. 220 at 15 (describing Exhibits 167-68). Willowood has also identified two employees of CAC, stating that it intends to call one of them to ...

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