1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 FEDERAL TRADE COMMISSION, Case No. 22-cv-04325-EJD

9 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF FTC'S 10 v. MOTION IN LIMINE TO EXCLUDE EVIDENCE CONCERNING THIRD- 11 META PLATFORMS INC., et al., PARTY WITNESSES

Defendants. 12 Re: ECF No. 280

13 Plaintiff Federal Trade Commission (the “FTC”) moves in limine to exclude all evidence 14 concerning third-party witnesses Eric Janszen, Jaime Pichardo Garcia, and Preston Lewis on the 15 basis that these witnesses were untimely disclosed. ECF No. 280 (“Motion”). Having considered 16 the arguments presented in the Parties’ briefs and oral arguments, the Court GRANTS IN PART 17 and DENIES IN PART the FTC’s Motion. 18 I. Legal Standard 19 Rule 26(a) of the Federal Rules of Civil Procedure requires parties to make initial 20 disclosures providing “the name and, if known, the address and telephone number of each 21 individual likely to have discoverable information—along with the subjects of that information— 22 that the disclosing party may use to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i). 23 Parties must supplement their disclosures in a timely manner. Fed. R. Civ. P. 26(e)(1)(A). Rule 24 37(c)(1) provides that “[i]f a party fails to provide information or identify a witness as required by 25 Rule 26(a) or (e), the party is not allowed to use that information . . . at a trial, unless the failure 26 was substantially justified or is harmless.” Hoffman v. Constr. Protective Serv., Inc.,

Case No.: 22-cv-04325-EJD 1 1175, 1179 (9th Cir. 2008). “The party facing sanctions bears the burden of proving that its 2 failure to disclose the required information was substantially justified or is harmless.” Unicolors, 3 Inc. v. H&M Hennes & Mauritz L.P.,

, 1073 (9th Cir. 2022) (citation omitted). 4 II. Discussion 5 The disclosures of Mr. Janszen and Mr. Garcia are differently situated than that of Mr. 6 Lewis. The Court addresses each in turn. 7 1. Eric Janszen and Jaime Pichardo Garcia 8 The FTC identified Mr. Janszen and Mr. Garcia in its initial disclosures, and Defendants 9 indirectly disclosed them by identifying those individuals disclosed by the FTC in their initial 10 disclosures. Mr. Janszen and Mr. Garcia were therefore timely disclosed by Defendants. Even if 11 the disclosures were untimely, the FTC’s prior identification would render harmless any tardiness. 12 Hauschild v. City of Richmond & Magnus, No. C 15-01556 WHA,

, at *3 (N.D. 13 Cal. Nov. 20, 2015); Townsend v. Monster Beverage Corp.,

(C.D.

). Accordingly, the FTC’s Motion is DENIED as to Mr. Janszen and Mr. Garcia. 15 2. Preston Lewis 16 In contrast, the FTC had no knowledge of Mr. Lewis prior to Defendants’ service of his 17 declaration and deposition notice on November 5, 2022, despite Defendants’ repeatedly contacts 18 with Mr. Lewis after September 6, 2022. ECF No. 280-2 at 10. Defendants’ contention that 19 supplemental disclosure was not required until they had subjectively and definitively decided to 20 use Mr. Lewis’s declaration is unavailing. Guzman v. Bridgepoint Educ., Inc.,

, 21 605 (S.D. Cal. 2015) (“Requiring parties to disclose only those witnesses they subjectively intend 22 to use in substantiating their claims, rather than those they merely ‘may use’ as Rule 26 explicitly 23 requires, would erode the efficacy of the rule's disclosure requirements.”); Lopez v. UPS General 24 Serv. Corp., No. CV-S-04-0732-JCM-GWF,

, at *3 (D. Nev. Jan. 19, 2006) 25 (“Rule 26(a)(1)(A), however, is not so narrow as to only require disclosure of witnesses that the 26 party actually intends, at the time of disclosure, to use in the case. Disclosure should be made if 27 Case No.: 22-cv-04325-EJD 1 the party reasonably knows that it may use the person as a witness in support of its claims or 2 defenses.”). Here, Defendants would have known they might use Mr. Lewis’s evidence prior to 3 his execution of the declaration, and were obligated to disclose him then. 4 Additionally, Defendants served Mr. Lewis’s declaration one day past the November 4, 5 2022 deadline to serve third-party declarations. As articulated by the Court on December 5, 2022, 6 although one day may appear a small delay, and despite the technological error that caused the last 7 step of the delay, timing is important. Arbitrarily extending discovery deadlines serves only to 8 render those deadlines meaningless. See, e.g., United States v. Ornelas,

(9th 9 Cir. 2018). The disclosure of Mr. Lewis was therefore untimely. 10 Defendants’ untimeliness was not substantially justified. Courts in this circuit weigh five 11 factors in analyzing substantial justification: (1) the surprise to the party against whom the 12 evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which 13 allowing the evidence would disrupt the trial; (4) the importance of the evidence, and (5) the 14 nondisclosing party's explanation for its failure to disclose the evidence. See, e.g., Moua v. IBM 15 Corp., No. 5:10-cv-01070-EJD,

, at *1 (N.D. Cal. Feb. 25, 2019). The factors 16 here weigh in favor of exclusion. First, the disclosure of Mr. Lewis was a surprise; Defendants 17 had not identified Mr. Lewis in their disclosures. Second, because the declaration and service of 18 Mr. Lewis’s deposition notice occurred only five days prior to the deposition, there was 19 insufficient time for the FTC to cure the surprise by conducting fulsome document discovery in 20 advance of the deposition. Third, given the compressed timeline for the hearing on the 21 preliminary injunction, an additional witness will have a significant impact on the Court’s hearing 22 schedule. As for the fifth factor, Defendants stated in their oral and written arguments that they 23 did not disclose Mr. Lewis because they had not yet decided to use his testimony, and the work 24 product doctrine protected against disclosure. Opp. at 8-9. But certainty is not the standard for 25 disclosure. And allowing litigants to evade their initial and supplemental disclosure obligations by 26 simply claiming they had not yet made up their minds would eviscerate the meaning of Rule 26 27 Case No.: 22-cv-04325-EJD 1 disclosures. Although the fourth factor is more neutral, the nature of Mr. Lewis’s evidence, which 2 || Defendants say will concern the VR dedicated fitness market, does not outweigh the other factors, 3 especially given that Mr. Janszen and Mr. Garcia will testify about the same topic. See Opp. at 1- 4 3. 5 Nor was the untimely disclosure harmless. Defendants’ delay in disclosing Mr. Lewis 6 || precluded the FTC from obtaining information from him during party discovery, which concluded 7 on October 26, 2022 (ECF No. 86), and required the FTC to “make last-minute preparations and 8 decisions on the run.” Ollier v. Sweetwater Union High School Dist.,

(9th Cir. 9 || 2014) (affirming conclusion that untimely disclosure 10 months before trial was not harmless). 10 || The FTC’s motion in limine to exclude Mr. Lewis’s live testimony, declaration (DX1289), and 11 deposition transcript (DX1218) is therefore GRANTED. 12 || If. Conclusion 5 13 The Court GRANTS IN PART and DENIES IN PART the FTC’s Motion, as follows: 14 1. The Motion is DENIED as to Mr. Janszen and Mr. Garcia. 3 15 2. The Motion is GRANTED as to Mr. Lewis. Defendants shall not submit any a 16 declaration, testimony, or other evidence from Mr. Lewis in this action. IT IS SO ORDERED. 18 Dated: December 9, 2022 19 20 EDWARD J. DAVILA 21 United States District Judge 22 23 24 25 26 Case No.: 22-cv-04325-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION IN LIMINE