1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 IN RE TELESCOPES ANTITRUST Case No. 5:20-cv-03642-EJD LITIGATION 8 ORDER DENYING MOTION TO EXCLUDE NON-RETAINED EXPERT 9 WITNESSES

10 Re: Dkt. No. 670

11 Before the Court is DPPs’ motion to exclude Defendants’ three non-retained expert 12 witnesses, Dean Koenig, Dennis di Cicco, and Richard Berry (collectively, “the non-retained 13 experts”), under Federal Rule of Civil Procedure 26. Mot., ECF No. 670. This motion is fully 14 briefed. Opp’n, ECF No. 677; Reply, ECF No. 695. 15 After carefully reviewing the relevant documents, the Court finds this matter suitable for 16 decision without oral argument pursuant to Local Rule 7-1(b). For the reasons explained below, 17 the Court DENIES DPPs’ motion. 18 I. BACKGROUND 19 The Court assumes the parties are aware of the extensive factual and procedural history of 20 this case. See Orders, ECF Nos. 746, 596, 589. After over four years of litigation, fact discovery 21 closed on October 4, 2024. ECF No. 614. On November 1, 2024, pursuant to the Court’s 22 scheduling order, id., Defendants served their designations of all expert witnesses, which included 23 retained expert John Hayes and three “non-retained/hybrid expert witnesses”: Koenig, di Cicco, 24 and Berry. Borden Decl., Ex. 3, ECF No. 670-4. Defendants included an expert report for Hayes 25 and a description of the backgrounds and areas of planned expert testimony for Koenig, di Cicco, 26 and Berry. Id. That same day, Defendants served their Second Supplemental Initial Disclosures, 27 1 which also disclosed Koenig, di Cicco, and Berry. Izadi Decl. ¶ 19, and Ex. 3, ECF Nos. 678, 2 678-3. DPPs contend that November 1, 2024, was the first time Defendants identified Koenig, di 3 Cicco, or Berry as potential witnesses. See Mot. 4 On November 14, 2024, DPPs requested available deposition dates for Hayes and took his 5 deposition on November 21, 2024. See Opp’n 7. DPPs did not seek to depose Koenig, di Cicco, or 6 Berry. Izadi Decl. ¶¶ 10, 14, 18. Instead, approximately two months later, they filed the present 7 motion to exclude the non-retained experts, arguing that Defendants’ disclosure failed to comply 8 with Federal Rule of Civil Procedure 26. Expert discovery has since closed on February 28, 2025, 9 and a trial date has not yet been set. ECF No. 664. 10 II. LEGAL STANDARD 11 Federal Rule of Civil Procedure 26 contains the relevant requirements for disclosures. 12 Rule 26(a)(1) requires parties to make initial disclosures providing “the name and, if known, the 13 address and telephone number of each individual likely to have discoverable information—along 14 with the subjects of that information—that the disclosing party may use to support its claims or 15 defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i). 16 Rule 26(a)(2) governs disclosure of expert testimony. This section separately identifies the 17 requirements for expert witnesses who are “retained” and not retained. If a witness is “retained or 18 specially employed to provide expert testimony in the case,” the party’s disclosure must be 19 accompanied by a written report, Fed. R. Civ. P. 26(a)(2)(B); otherwise, the disclosure must only 20 provide “the subject matter on which the witness is expected to present evidence” and “a summary 21 of the facts and opinions to which the witness is expected to testify,” Fed. R. Civ. P. 26(a)(2)(C). 22 “A party must make these disclosures at the times and in the sequence that the court 23 orders.” Fed. R. Civ. P. 26(a)(1)(D). And parties must supplement their disclosures “in a timely 24 manner if the party learns that in some material respect the disclosure or response is incomplete or 25 incorrect, and if the additional or corrective information has not otherwise been made known to 26 the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A), 27 26(a)(1)(E). 1 Under Rule 37(c)(1), “a party failing to provide information required by Rule 26(a) or (e) 2 is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at a trial, 3 unless the failure was substantially justified or is harmless.” Hoffman v. Constr. Protective Servs., 4 Inc.,

(9th Cir. 2008), as amended (Sept. 16, 2008) (internal quotation marks 5 omitted). “The party facing sanctions bears the burden of proving that its failure to disclose the 6 required information was substantially justified or is harmless.” Unicolors, Inc. v. H&M Hennes 7 & Mauritz, L.P.,

, 1073 (9th Cir. 2022) (internal citation omitted). 8 III. DISCUSSION 9 DPPs seek to exclude the testimony of three “non-retained/hybrid” expert witnesses 10 because: (1) Defendants did not identify these witnesses in their initial disclosures under Rule 11 26(a)(1); (2) these witnesses are effectively “retained” experts who must submit full expert reports 12 under Rule 26(a)(2)(B); and (3) even if the witnesses are not “retained,” Defendants still failed to 13 provide sufficient information regarding their background and testimony as required by Rule 14 26(a)(2)(C). The Court will address each in turn. 15 A. Rule 26(a)(1) Initial Disclosures 16 DPPs first contend that Defendants should have included the non-retained experts in their 17 initial disclosures. 1 But DPPs’ argument misses one crucial fact—Defendants also supplemented 18 their initial disclosures with the non-retained experts on November 1, 2024. Rule 26 explicitly 19 allows for timely supplemental disclosures if a “party learns that in some material respect the 20 disclosure or response is incomplete or incorrect.”2 Fed. R. Civ. P. 26(e)(1)(A), 26(a)(1)(E). 21 Defendants claim that they formally added the non-retained experts to their initial disclosures on 22 November 1, 2024, “once it became clear they were likely to offer testimony at trial.” Opp’n 18. 23 Though Defendants’ explanation lacks any further details, DPPs did not challenge it in their 24 25

26 1 The Court will assume for these purposes DPPs’ representation that non-retained expert witnesses must be disclosed as fact witnesses before they are disclosed as experts. 27 2 Because the Court finds this requirement satisfied, it need not examine whether DPPs had prior notice of these witnesses. 1 reply.3 Instead, they ignore entirely the fact that Defendants filed a supplemental initial disclosure 2 on November 1, 2024, and address only the November 1, 2024, opening expert disclosure. While 3 the Court makes no finding regarding the sufficiency or veracity of Defendants’ explanation for 4 the timing of its supplemental disclosure, left unchallenged, the Court rejects DPPs’ argument that 5 Defendants violated Rule 26(a)(1). 6 B. Rule 26(a)(2)(B) Expert Report 7 Next, DPPs argue that the non-retained experts are actually “retained” experts, and as such, 8 were required to submit a written expert report pursuant to Rule 26(a)(2)(B). “[T]he critical 9 distinction between retained and non-retained experts is the nature of the testimony the expert will 10 provide, and whether it is based only on percipient knowledge or on information reviewed in 11 anticipation [of] trial.” Montera v. Premier Nutrition Corp., No. 16-CV-06980-RS,

1225031, at *12 (N.D. Cal. Apr. 26, 2022), aff’d in part,

(9th Cir. 2024). 13 “Opinions beyond the scope of one’s own observations which are solicited for trial are retained 14 expert opinions.” Vincenzini v. Transit Am. Servs., Inc., No. 23-CV-00645-JSW,

4982987, at *2 (N.D. Cal. Dec. 4, 2024). “[W]hen an expert is to offer testimony limited to his or 16 her percipient knowledge, i.e., knowledge and opinions formed at the time an earlier evaluation or 17 report was made, the expert is treated as a non-retained expert.” Cantu v. United States, No. 18 CV1400219MMMJCGX,

, at *4 (C.D. Cal. Apr. 6, 2015). 19 Here, Koenig is the CEO of a prominent telescope retailer and has invented and produced 20 an aftermarket accessory for Celestron telescopes. Izadi Decl., Ex. 3. He plans to testify about his 21 experiences selling Celestron products, supporting the development of Celestron products, 22 observing price differences in the market, and other similar topics.

Di Cicco and Berry have 23 authored numerous articles and books on the telescopes at issue in this case, including comparing 24 Celestron products with its competitors.

Di Cicco plans to testify about his knowledge of 25

26 3 DPPs note that the three witnesses were disclosed “a month after the October 4 fact discovery 27 cutoff and four years into this action,” but do not further any argument that the supplemental initial disclosure violated Rule 26(e)(1)(A), 26(a)(1)(E). 1 Celestron’s innovations, the accessibility of the telescope market, Celestron’s support of 2 competitors, and price fluctuations in the market.

Berry plans to testify about his visits to 3 Celestron and Meade’s manufacturing plants, his perspective of the culture, market, and players in 4 the consumer astronomical field, and innovations observed in the field generally and specifically 5 as to Celestron.

Defendants contend that all three of the non-retained experts’ opinions have 6 been formed over the course of their years-long careers in the telescope industry, and no 7 information has been provided to these witnesses to form their opinions.

8 The Court finds this sufficient to classify Koenig, di Cicco, and Berry as non-retained 9 experts at this time.4 They each purport to offer testimony within the scope of their own 10 observations, which were formed throughout their careers in the telescope industry and without 11 reviewing information in anticipation of trial. As such, the Court finds the non-retained experts 12 were not required to submit an expert report under Rule 26(a)(2)(B). 13 C. Rule 26(a)(2)(C) Summary of Opinions 14 Finally, DPPs argue that, if not required to submit expert reports, Defendants still failed to 15 disclose information about the witnesses sufficient to satisfy Rule 26(a)(2)(C). Courts in the Ninth 16 Circuit have found disclosures for non-retained experts satisfy Rule 26(a)(2)(C) when they include 17 the identity of the witness, a brief summary of the witness’s background with the company, the 18 anticipated subjects each witness will testify about, and the basis for each witness’s testimony. 19 Copart, Inc. v. Sparta Consulting, Inc., No. 214CV00046KJMCKD,

, at *3 (E.D. 20 Cal. Jan. 9. 2017); accord Mendoza v. Monsanto Co., No. 1:16-CV-00406-KES-HBK,

4545829, at *4 (E.D. Cal. Oct. 22, 2024); see also contra O’Daniel v. Arizona Hay & Feed LLC, 22 No. CV-20-02224-PHX-ESW,

, at *2 (D. Ariz. May 6, 2022) (rejecting a single 23 paragraph summary for each of the seventeen non-retained experts). “Courts must take care 24 against requiring undue detail” in these types of disclosures. Rule 26, Advisory Committee 25

26 4 The Court makes no finding—and DPPs request no finding—as to the admissibility of these opinions at trial on other grounds. And if the witnesses later attempt to testify during trial in areas 27 beyond their percipient knowledge, the Court will hear objections in motions in limine and/or during testimony at trial. 1 Notice, 2010 Amendment. 2 As detailed in the section prior, Defendants have disclosed several paragraphs of 3 || information, totaling approximately eight pages, regarding the non-retained experts’ backgrounds 4 and the facts and opinions they anticipate testifying about. The Court finds that this level of detail 5 satisfies Rule 26(a)(2)(C). 6 D. Sanctions 7 Even if the Court had found DPPs’ arguments persuasive, the Court finds Rule 37(c) 8 sanctions inappropriate at this time. To prevent the exclusion of these witnesses, Defendants must 9 show either substantial justification or harmlessness. Fed. R. Civ. P. 37(c)(1); see also Moua vy. 10 Int'l Bus. Machines Corp., No. 5:10-CV-01070-EJD,

, at *1 (N.D. Cal. Feb. 25, 11 2019). The Court finds any deviation from Rule 26 harmless. 12 After being served notice of the non-retained experts, DPPs had nearly four months prior 5 13 to the close of expert discovery. During this time, they could have conducted depositions, 14 || identified rebuttal experts, or developed further facts related to the non-retained experts’ 3 15 anticipated testimony. Indeed, they did exactly this with another expert listed in the November 1, 16 || 2024, disclosure—John Hayes. If DPPs uncovered facts about the non-retained experts that 3 17 required further development, they could have sought the appropriate extensions, particularly 18 || given that the trial date has not yet been set. Indeed, DPPs filed such a stipulation seeking and 19 securing an extension of expert discovery deadlines on December 3, 2024, approximately one 20 || month prior to filing the present motion. Under these circumstances, exclusion pursuant to Rule 21 37(c) is not warranted. 22 || IV. CONCLUSION 23 Based on the foregoing, the Court DENIES DPPs’ motion. 24 IT IS SO ORDERED. 25 Dated: September 29, 2025

EDWARD J. DAVILA 27 United States District Judge 28 || Case No.: 5:20-cv-03642-EJD ORDER DENYING MOTION TO EXCLUDE NON-RETAINED EXPERTS