Morsell v. Symantec Corporation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :
ex rel. LORI MORSELL, et al., :
:
Plaintiffs, : Civil Action No.: 12-800 (RC)
:
v. : Re Document Nos.: 280, 283
:
NORTONLIFELOCK, INC. :
(f/k/a SYMANTEC CORPORATION), :
:
Defendant. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE UNITED STATES’ MOTION IN LIMINE;
DENYING NORTON’S CROSS-MOTION TO MODIFY SCHEDULING ORDER

I. INTRODUCTION

This case concerns the Federal Government’s Federal False Claims Act (“FCA”) claims,

and the related state claims of California, Florida, and Relator Morsell on behalf of New York

against Defendant NortonLifeLock Incorporated (“Norton”). 1 A bench trial before this Court is

currently scheduled to begin February 28, 2022. See Min. Order of Oct. 7, 2021. The pending

cross-motions seek to exclude certain demonstrative exhibits and to modify the pretrial

scheduling order with respect to demonstrative exhibits. See United States’ Mot. in Limine to

Exclude Certain Demonstrative Exs. Identified by Norton (“Gov’t Mot.”), ECF No. 280;

Norton’s Mem. P. & A. Opp’n United States’ Mot. in Limine & Supp. Cross Mot. to Modify

Scheduling Order (“Norton Mot.”), ECF No. 283-1. The United States filed a consolidated

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The Court stated in its opinion regarding motions for summary judgment that it would
refer to the company previously known as Symantec Corporation by its new name going
forward. United States ex rel. Morsell v. Symantec Corp., 471 F. Supp. 3d 257, 266 n.1 (D.D.C.
2020). However, the Court has not replaced instances of “Symantec” in quotations.
Reply and Opposition, see United States’ Reply in Supp. Mot. in Limine to Exclude Certain New

Demonstrative Exs. & Opp’n Norton’s Cross-Mot. to Revise Court-Ordered Schedule after the

Fact (“Gov’t Reply & Opp’n”), ECF Nos. 287–88, and Norton filed a reply, see Def.

NortonLifeLock Inc.’s Reply in Supp. Cross-Mot. to Revise Demonstrative Schedule (“Norton

Reply”), ECF No. 289. For the reasons explained herein, the Court will grant in part and deny in

part the Government’s motion in limine and deny Norton’s Cross-Motion to Modify the

Scheduling Order.

II. FACTUAL & PROCEDURAL BACKGROUND

The full background of this case has been laid out in previous opinions. See United

States ex rel. Morsell v. Symantec Corp., 471 F. Supp. 3d 257, 267–76 (D.D.C. 2020); United

States ex rel. Morsell v. Symantec Corp., No. 12-cv-800, 2020 WL 1508904, at *1–3 (D.D.C.

Mar. 30, 2020); United States ex rel. Morsell v. NortonLifeLock, Inc., No. 12-cv-800, 2021 WL

3363446, at *1–2 (D.D.C. Aug. 3, 2021). To briefly summarize, the Government and the States

claim that Norton violated the FCA, common law, state false claims acts, and state contract law

when, “in the process of setting pre-negotiated maximum prices for government purchasers with

the General Services Administration, Symantec overcharged them by misrepresenting the

existence of certain prices and discounts that were available to Symantec’s private customers and

by consequently failing to offer government purchasers the same low prices these customers

received.” Morsell, 471 F. Supp. 3d at 267. Norton was “required to make certain

representations and to provide details about their discounting policies” in their Commercial Sales

Practices Format (“CSPs”) disclosures, id. at 269, which were part of Norton’s contract, see id. at

281–82. Norton’s contract also contained a Price Reduction Clause (“PRC”), which “ensures

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that the Government’s prices are reduced if [an agreed-upon] customer or category of customers

is given lower pricing or increased discounts.” Id. at 270.

On August 25, 2021, this Court issued an opinion granting in part and denying in part the

parties’ various motions in limine. United States ex rel Morsell v. NortonLifeLock, No. 12-cv-

800, ECF No. 263 (D.D.C. Aug. 25, 2021) [hereinafter “Mem. Op.”]. In relevant part, the Court

granted the Government’s motion to exclude the following evidence offered by Norton’s expert

Mr. Tucker: “opinions regarding whether sales for products having stock-keeping-unit numbers

(“SKUs”) not found on the relevant contract’s pricelist should be included for damages; . . .

opinions regarding which sales are appropriate to consider in damages calculations based on

their terms and conditions; . . . whether order-level discount calculations are required in this case;

. . . [and] opinions criticizing Government expert Dr. David A. Gulley merely for assuming

liability for damages relating to the resellers’ and distributors’ sales.” Id. at 2.

Following that ruling, a final pretrial conference was held on September 14, 2021. 2 At

that hearing, the parties indicated that they would each be revising their previously filed

demonstrative exhibits in light of the Court’s motion in limine rulings. See 9/14/21 Tr. at 5:15–

20, ECF No. 282. In accordance with the deadline set by the Court at that hearing, id. at 6:6–8,

the parties filed revised demonstrative exhibits on September 22, 2021. See Notices of Filing

Revised Demonstrative Exs., ECF Nos. 276–77. 3 Both parties agree that the demonstratives

contested here correspond to the supplemental production served by Norton on the U.S. on

2
Trial in this matter was at that time scheduled to begin on September 27, 2021, but was
postponed in light of the ongoing health risks of the COVID-19 pandemic. See Minute Entry of
September 20, 2021 hearing (granting Defendant’s Motion to Continue Bench Trial, ECF No.
270).
3
California also submitted its proposed demonstrative exhibits on that date. See Notice
of Filing Demonstrative Exs., ECF No. 274.

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October 9, 2021, which are found at Ex. 1 of the Government’s Motion in Limine. See Ex. 1 of

Gov’t Mot. (“Oct. Demonstratives”), ECF No. 280-1. 4

III. LEGAL STANDARD

“While neither the Federal Rules of Civil Procedure nor the Federal Rules of [E]vidence

expressly provide for motions in limine, the Court may allow such motions ‘pursuant to the

district court’s inherent authority to manage the course of trials.’” Barnes v. District of

Columbia, 924 F. Supp. 2d 74, 78 (D.D.C. 2013) (quoting Luce v. United States, 469 U.S. 38, 41

n.4 (1984)). “Motions in limine are designed to narrow the evidentiary issues at trial.” Williams

v. Johnson, 747 F. Supp. 2d 10, 14 (D.D.C. 2010). But “a motion in limine should not be used to

resolve factual disputes or weigh evidence.” C & E Servs., Inc. v. Ashland Inc., 539 F. Supp. 2d

316, 323 (D.D.C. 2008) (citation omitted). “Additionally, the gatekeeping requirement is

substantially relaxed when the judge will serve as factfinder in a trial.” DL v. District of

Columbia, 109 F. Supp. 3d 12, 28 (D.D.C. 2015).

Federal Rule of Civil Procedure 37(c) provides that if a party “fails to provide

information or identify a witness as required by Rules 26(a) or (e), the party is not allowed to use

that information or witness to supply evidence. . . at a trial, unless the failure was substantially

justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The Rule also permits the Court to impose

other appropriate sanctions in addition to, or instead of, exclusion. See id.; see also Sherrod v.

McHugh, 334 F. Supp. 3d 219, 269 (D.D.C. 2018) (“A Rule 37(c)(1) exclusion, however, is an

4
Although this additional production of demonstrative exhibits occurred after and in
addition to the demonstratives filed with the Court on the September 22, 2021 deadline, the
Government does not take issue with this supplemental production. See Gov’t Mot. at 1, n.1.
Finding no prejudice, and in the interest of avoiding further disputes, the Court will treat the
October demonstratives as the operative submission of Norton’s demonstrative exhibits and
order Norton to file those exhibits in a separate docket entry.

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‘extreme sanction’ that should be used sparingly.” (quoting Richardson v. Korson, 905 F. Supp.

2d 193, 200 (D.D.C. 2012))). A party proposing to admit evidence that it failed to disclose

pursuant to Rules 26(a) and (e) “bears the burden of showing substantial justification and lack of

harm” to the opposing party. Norden v. Samper, 544 F. Supp. 2d 43, 49–50 (D.D.C. 2008)

(citing Coles v. Perry, 217 F.R.D. 1, 5 (D.D.C. 2003)).

Rule 26(a) requires, among other things, pretrial disclosure of an expert report for any

retained expert that contains “a complete statement of all opinions the witness will express and

the basis and reasons for them,” including “the facts or data considered by the witness in forming

them” and “any exhibits that will be used to summarize or support” the expert’s opinions. Fed.

R. Civ. P. 26(a)(2)(B)(i)–(iii). “The Rule . . . prevents experts from ‘lying in wait’ to express

new opinions at the last minute, thereby denying the opposing party the opportunity to depose

the expert on the new information or closely examine the expert’s new testimony.” Halcomb v.

Washington Metro. Area Transit Auth., 526 F. Supp. 2d 24, 28 (D.D.C. 2007). Rule 26(a) also

requires “an identification of each document or other exhibit, including summaries of other

evidence—separately identifying those items the party expects to offer and those it may offer if

the need arises,” Fed. R. Civ. P. 26(a)(3)(A)(iii), made at least 30 days before trial “[u]nless the

court orders otherwise,” Fed. R. Civ. P. 26(a)(3)(B).

Local Civil Rule 16.4 provides that “the Court will issue a scheduling order governing

future proceedings in accordance with Fed. R. Civ. P. 16(b).” L. Civ. R. 16.4(a). The

scheduling order can be modified at any time by the Court, “upon a showing of good cause.” Id.

Federal Rule of Civil Procedure 16(d) also directs that after any conference held under that Rule,

the Court “should issue an order reciting the action taken” that “controls the course of the action

unless the court modifies it.” Fed. R. Civ. P. 16(d).

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 IV. ANALYSIS

A. The Government’s Motion in Limine

Both parties revised their previously filed demonstrative exhibits in light of this Court’s

rulings on the prior motions in limine. The Government has filed another motion in limine,

however, arguing that Norton took advantage of the narrow leave granted by the Court to

“introduce[] new opinions or opinions the Court excluded” in its demonstrative exhibits. Gov’t

Mot. at 8.

1. Slides with Excluded Portions of Mr. Tucker’s Opinion

The Court held in its prior opinion that because the Government’s expert, Dr. Gulley,

may permissibly rely on the assumptions provided by counsel, Norton’s expert Mr. Tucker may

not criticize him for having done so—specifically, for “assuming liability for damages relating to

the resellers’ and distributors’ sales.” Mem. Op. at 18. The Government now seeks to exclude

several specific bullet points from Norton’s October demonstratives that it believes include this

impermissible opinion by Mr. Tucker. Gov’t Mot. at 8–9.

a. Slide 17, Bullet 3 & Slide 19, Bullet 2

These two slides contain an identical phrase that the Government takes issue with:

“[s]ignificant portions of Dr. Gulley’s claimed PRC damages are based on unreasonable

assumptions from an economic and business standpoint . . . .” Gov’t Mot. at 9; Oct.

Demonstratives at 17, 19. For its part, Norton argues that this phrasing is permissible because

“Tucker’s opinions are directed at the reasonableness of [the] assumptions themselves and not

the fact that Gulley relied on them.” Norton Mot. at 14.

Norton’s distinction toes the line rather closely. If this were a jury trial, the Court would

likely be concerned about whether the jurors would be confused by the difference between

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criticizing an assumption and criticizing reliance on an assumption. But this is a bench trial, and

the Court is cognizant of the distinction. Accordingly, it will not exclude these bullet points.

b. Slide 20, Bullet 6

Similarly, Slide 20, Bullet 6 states that “Dr. Gulley’s assumptions of what Symantec was

required to do from 2007 to 2014 are unrealistic and are unreasonable from a business and

economic standpoint.” Gov’t Mot. at 9, Oct. Demonstratives at 20. Here, the Court is persuaded

that Norton has crossed the line. Although this sentence again criticizes the assumptions

themselves, it does so with the possessive, referring to them as “Dr. Gulley’s assumptions.” Id.

And the rather broad phrase “what Symantec was required to do from 2007 to 2014,” while not

specifically referencing any excluded topics, can only be understood in context to mean what

Symantec was required to do by the contract—legal conclusions that the Court repeatedly

refused to allow Mr. Tucker to testify on in its prior opinion. See Mem. Op. at 13 (“Whether the

contract between GSA and Norton includes such products is not the proper subject of expert

testimony . . . .”); id. at 14 (“[Tucker’s] opinion on the economic importance of considering the

terms and conditions is also dependent on such a comparison being required by the contract. He

cannot properly testify to this legal conclusion.”) (cleaned up). Norton must therefore strike this

bullet point.

2. New Dr. Tucker Opinions

The U.S. also objects to specific portions of the October demonstratives that it claims

include previously undisclosed opinions by Dr. Tucker. Gov’t Mot. at 9–11. Specifically, it

objects to Slide 89 of the October demonstratives as “an entirely new damages tabulation” that

“cites no prior analysis of Mr. Tucker or any page or schedule of his three separate, voluminous

expert reports,” id. at 10, bullet point 3 of Slide 18 as “opin[ing] as to the industry definition of

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the term ‘practice’” for the first time, id., and various instances in the October demonstratives

with Mr. Tucker’s opinion that “the United States lacks a damages calculation for its theories of

liability based on Norton’s false commercial sales practices (‘CSP’) disclosures,” id. at 11. The

Court addresses each in turn.

a. Slide 89 (Damages Tabulation)

Slide 89, which did not appear in the previous demonstrative set, is titled “Detail of Dr.

Gulley’s base method FPR Review Damages Calculation.” Oct. Demonstratives at 89. It

reproduces a portion of one of the Government’s exhibits summarizing Dr. Gulley’s damages

calculations and breaks down the column of “calculated” damages to purportedly show how

much of that number came from certain techniques. Id. Norton contends that “[i]t is not a

damages tabulation at all, but a summary of Gulley’s work . . . . [that] illustrates the significant

impact that counsel’s directions and analyses had upon Gulley’s damages.” Norton Mot. at 18.

Both parties acknowledge that Mr. Tucker used data disclosed by Dr. Gulley to reach the

numbers on this slide and that he had not previously disclosed that process or those calculated

totals. Gov’t Mot. at 10; Norton Mot. at 18 & n.12. Both parties also acknowledge that Mr.

Tucker had previously disclosed his more general opinion “that a significant portion of Gulley’s

calculated damages are based on direction and analyses provided by government counsel rather

than upon his own expert analysis, and/or are improper extrapolations.” Norton Mot. at 18;

Gov’t Reply & Opp’n at 7–8.

The Court agrees with the Government that the failure to disclose this data calculation

was a violation of Rule 26(a), which required Mr. Tucker’s reports to contain “the basis and

reasons” for all of his opinions, “the facts or data considered” in forming them, and “any exhibits

that will be used to summarize or support” them. Fed. R. Civ. P. 26(a)(2)(B)(i–iii). Slide 89

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may provide illustrative support for Mr. Tucker’s more general previous opinion, but the fact

remains that he undertook a new process to reach those numbers. The new totals, the process he

undertook to reach those totals, and Slide 89 summarizing the totals, were all required to be

disclosed under Rule 26(a).

Failure to disclose this opinion means it cannot be used at trial “unless the failure was

substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Norton implies that any failure

to disclose was harmless because Mr. Tucker used Dr. Gulley’s numbers to reach these totals,

and his “method for doing so [was] not complicated.” See Norton Mot. at 19. That is beside the

point. The Government is correct that it was entitled to “the opportunity to depose Mr. Tucker

on the process and assumptions used to generate these new figures,” and Norton’s untimely

disclosure deprived it of that opportunity. Gov’t Mot. at 10. Even a bench trial depends on the

processes of the adversarial system, and the inability of the opposing party to depose Mr. Tucker

on this opinion is not harmless. See also Dahlberg v. MCT Transp., LLC, 571 F. App’x 641,

647–48 (10th Cir. 2014) (affirming exclusion of an expert’s demonstrative exhibits for failure to

comply with Rule 26(a)); Lasher v. Wipperfurth, No. 16-cv-03158, 2018 WL 10911500, at *2

(D. Colo. Nov. 3, 2018) (“Plaintiff’s failure to provide a timely and meaningful disclosure of the

demonstrative exhibits is prejudicial . . . because it has deprived Defendant of the ability to

question the expert in deposition about the accuracy of and methodologies he employed while

creating the exhibits.”). Nor does Norton suggest any justification for not having disclosed this

particular opinion in Mr. Tucker’s prior reports. The Court therefore finds that Norton’s failure

to disclose the totals on Slide 89 was neither justified nor harmless.

The fact that Slide 89 is a “demonstrative exhibit” does not make a meaningful difference

here. Minebea, which both parties cite, is instructive. The court in that case concluded that the

9
plaintiff “was under an obligation under Rule 26(a)(2)(B) . . . to provide any exhibits used as

summaries or illustrative aids in support of the opinions and conclusions contained in [the]

Expert Report at the time it submitted the report itself” and excluded new exhibits as untimely

even though they were demonstrative exhibits and intended for use at a bench trial. Minebea

Co., Ltd. v. Papst, 231 F.R.D. 3, 12 (D.D.C. 2005). It did agree to consider exhibits that had not

been filed with the court, “but only to the extent that they accurately reflect previously presented

information” in the first expert report. Id. at 13 (emphasis in original). The issue here is not only

that Slide 89 is new, but that the new calculations on it do not accurately reflect Mr. Tucker’s

previously disclosed report. The Court will therefore exclude Slide 89.

b. Slide 18, Bullet 3 (“Practice” as an Industry Term)

The Government next objects to the bullet point 3 on Slide 18, which reads: “I understand

that Symantec’s practice is to provide non-published discounts for various reasons. The

provision of a particular discount is not viewed in the industry as a practice, rather it is the

application of Symantec’s practice.” 5 Oct. Demonstratives at 18. That bullet point had

previously read: “The assertion that Symantec did not properly disclose its non-published

discounting practice is unsupported and incorrect.” July Demonstratives at 17, Ex. 2 of Gov’t

Mot., ECF No. 280-2. Norton’s position is that it made this change in order to comply with the

spirit of this Court’s prior opinion by disclaiming any legal conclusion about “whether

Symantec’s disclosures were proper” and instead focusing on general practices. Norton Mot. at

5
The first sentence of this bullet point, “I understand that Symantec’s practice is to
provide non-published discounts for various reasons,” does not appear to be the point of
contention between the parties. The Court takes no issue with it, as it is consistent with this
Court’s prior reasoning allowing experts to rely on and describe assumptions provided by
counsel. See Mem. Op. at 17 (allowing statements “more naturally read as reflecting
assumptions provided by [] counsel”).

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6. But the Government argues that Tucker’s invocation of what the industry defines as

“practice” is inappropriate given that he offered only his personal opinion of the term in his

report and depositions and admitted that he had not “conduct[ed] any industry-wide survey,

research, or work to form his opinions.” Gov’t Mot. at 10–11.

The second sentence of this bullet point is somewhat ambiguous as to whether it can in

fact be understood as defining “practice” in the industry, as the Government characterizes it.

And Norton points out that Mr. Tucker did previously disclose his opinion regarding the

difference between the existence of a practice and its application. Norton Mot. at 5. Finally,

while Mr. Tucker stated that he had not conducted any industry-wide research, instead relying on

his own experience, his expert report does claim knowledge of industry practices. See, e.g.,

Expert Rep. Avram Tucker, May 18, 2018 ¶¶ 7, 13, Ex. 4 of Norton Mot., ECF No. 283-4.

Given this ambiguity, “and because, in a bench trial, the Court can easily discount the weight of

any testimony . . . that goes beyond the proper scope of [the expert’s] expertise,” the Court will

allow the text in this bullet point. Garcia Ramirez v. U.S. Immigr. & Customs Enf’t, No. 18-cv-

508, 2019 WL 6036121, at *4 (D.D.C. Nov. 14, 2019); see also DL, 109 F. Supp. 3d at 29

(“[T]hese concerns go to the weight, not the admissibility, of his report, especially in a bench

trial where there is no concern about jury confusion or prejudice.”).

c. Slide 17, Bullet 5 & Slide 20, Bullet 5 (CSP Disclosure Damages)

Finally, the Government moves to exclude two bullet points stating an opinion by Mr.

Tucker that “Dr. Gulley’s PRC calculations do not represent CSP disclosure damages.” Gov’t

Mot. at 11. The Government acknowledges that “Norton included the framework of this

misguided opinion in its July Demonstratives” but believes that Norton’s revisions “doubl[ed]

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down to include a flat opinion” that “underscores the previously undisclosed nature of Mr.

Tucker’s new non-expert opinion.” Id.

The Government’s objections to this statement are twofold: one, that Mr. Tucker did not

disclose this opinion as required by Rule 26, and two, that he is unqualified to deliver it. Id. at

14–15. The Court can quickly dispense with the second argument, as it goes to the proper

weight that should be afforded to Mr. Tucker’s testimony. “[I]n a bench trial, the Court can

easily discount the weight of any testimony . . . that goes beyond the proper scope of [the

expert’s] expertise.” Garcia Ramirez, 2019 WL 6036121, at *4. The Court’s gatekeeping

function in admitting expert testimony “is substantially relaxed when the judge will serve as

factfinder in a trial.” DL, 109 F. Supp. 3d at 28.

It is less clear whether Mr. Tucker has previously disclosed this opinion. As the

Government explains, it provided Dr. Gulley with “two sets of commercial transactions . . . as

assumptions” for which he “was tasked with performing damages calculations, not explaining

the legal and factual theories underpinning those calculations.” Gov’t Mot. at 13. Norton points

to Mr. Tucker’s critique of those transaction sets as having “made no quantifiable connection

between the alleged false CSPs and the final negotiated contract prices” in his surreply report

relating to Dr. Holt, who created them. Norton Mot. at 12–13. Norton also points out that Mr.

Tucker further elaborated on that opinion in his deposition. Id. at 13.

While it is not entirely free from doubt that those portions of the expert report directly

articulate Mr. Tucker’s opinion regarding Dr. Gulley’s damages calculations, they come close

enough. An “expert report is not the end of the road, but a means of providing adequate notice to

the other side to enable it to challenge the expert’s opinions and prepare to put on expert

testimony of its own.” Robinson v. District of Columbia, 75 F. Supp. 3d 190, 195 (D.D.C. 2014)

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(cleaned up). An expert report need not identify every potential variation of an opinion by the

exact wording that will be used at trial. This opinion was articulated approximately enough that

the Government asked about it in Mr. Tucker’s deposition and concedes that that “the

framework” of this opinion was present in Norton’s July demonstratives. Gov’t Mot. at 11.

Because Mr. Tucker disclosed enough of this opinion to satisfy Rule 26(a)(2), and because this is

a bench trial with lessened risk of confusion or misleading the jury, the Court declines to exclude

this language from the demonstratives.

B. Norton’s Cross-Motion to Modify Scheduling Order

In addition to opposing the Government’s Motion in Limine, Norton filed a cross motion

asking the Court to modify its Scheduling Order to “order the parties to disclose final

demonstratives 72 hours in advance of their expected use.” 6 Norton Mot. at 21. The pretrial

order in this case initially required the parties to submit demonstrative exhibits on June 4,

2021—about two months in advance of the trial that was at the time scheduled to begin on

August 2, 2021. See Pretrial Order at 2, ECF No. 194. That order has since been modified in

part on multiple occasions, including to clarify that the deadline for demonstrative exhibits

6
The parties additionally disagree about whether slides used during opening statements qualify
as “demonstrative” exhibits. See Gov’t Reply & Opp’n at 3, n.2. Slides used during opening
statements serve a similar function to demonstrative exhibits in that they are “illustrative aid[s]”
“used to summarize or illustrate evidence, such as documents, recordings, or trial testimony, that
has been admitted in evidence” but that have not themselves been admitted into evidence and
that “may reflect to some extent, through captions or other organizational devices or
descriptions, the inferences and conclusions drawn from the underlying evidence by the
summary’s proponent.” United States v. Bray, 139 F.3d 1104, 1111 (6th Cir. 1998). “This type
of exhibit is more akin to argument than evidence” and may be considered under Federal Rule of
Evidence 611. Id. (cleaned up); Minebea Co., Ltd. v. Pabst, 231 F.R.D. 1, 3 (D.D.C. 2005). The
Court therefore agrees with Norton that these slides should have been disclosed along with the
demonstrative exhibits and will adopt the Government’s proposed solution of limiting the United
States’ “visual presentation during opening remarks to call-outs, excerpts, and previously
disclosed demonstrative exhibits.” Gov’t Mot. at 8, n.6.

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included summary exhibits under Federal Rule of Evidence 1006, see Order of Jan. 11, 2021,

ECF No. 207 at 1, and to reset the deadline to file demonstrative and summary exhibits following

the first postponement of trial in this case to July 30, 2021, which at that time was again about

two months before the scheduled start of trial on September 27, 2021, see Minute Order of July

17, 2021.

Federal Rule of Civil Procedure 16(b) provides that the Court may modify a scheduling

order “only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); A Love of

Food I, LLC v. Maoz Vegetarian USA, Inc., 292 F.R.D. 142, 143 (D.D.C. 2013) (“[D]istrict court

case law makes clear that once the court enters a scheduling order, that schedule can only be

modified with the court’s consent and with good cause shown.”). Good cause generally

“requires the party seeking relief to show that the deadlines cannot reasonably be met despite its

diligence.” Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 226 (D.C. Cir.

2011) (cleaned up). Here, all parties met the deadline for exchanging and filing demonstrative

exhibits, meaning that an inability to meet a deadline despite diligence is not directly at issue.

See Norton Reply at 1–2. Rather, Norton argues that “the judicial economy and efficiency that

would be served by modifying the demonstrative exhibit deadline to align with the progress and

realities of trial easily satisfies the ‘good cause’ standard under Rule 16.” Id. at 4.

A district court’s “broad discretion in managing its docket” may sometimes extend to the

admission of untimely demonstratives for equitable reasons. See Grimes v. District of Columbia,

794 F.3d 83, 90 (D.C. Cir. 2015) (“[A] district court enjoys broad discretion in managing its

docket and determining the order in which a case should proceed.”). As Norton points out, this

Court allowed certain demonstratives to be admitted as Rule 1006 summaries despite having

been updated and submitted after the exhibit deadline in a recent bench trial. Norton Reply at 4

14
(discussing Garcia Ramirez v. U.S. Immigr. & Customs Enf’t, 471 F. Supp. 3d 88, 138–39

(D.D.C. 2020)). But Norton fails to acknowledge that in addition to a lack of prejudice, there

were other equitable considerations underlying that decision, primarily that “the Government

also supplemented its own exhibits after the deadline and, more importantly, . . . the

Government updated its production of some of the data underlying these demonstrative exhibits

during the second week of trial.” Minute Order of January 9, 2020, Garcia Ramirez, 18-cv-508

(D.D.C. Jan. 9, 2020).

No such equitable considerations support a wholesale modification of the deadline for all

demonstrative exhibits at this stage, of which there are many. Norton does not point to any

specific demonstrative exhibit that requires updating at this stage, rather it speculates that “the

parties will almost certainly be required to revise demonstratives used by expert witnesses based

upon the testimony and evidence introduced (and excluded) during trial.” Norton Mot. at 20.

The purpose of the requirement that the parties exchange and file proposed demonstrative

exhibits in advance of the pretrial conference is to encourage the parties to resolve any

disagreements without the Court’s intervention and to allow for resolution of as many disputes as

possible in advance of trial. The Court does not foreclose the possibility that under exceptional

circumstances the parties may need to revise specific demonstratives between now and the start

of trial, but it fails to see any gains in judicial efficiency by allowing the parties to continuously

revise demonstratives on a rolling basis throughout trial and dealing with last-minute

disagreements that could have been resolved weeks earlier. The Court therefore declines to

modify the pretrial order as proposed by Norton.

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 V. CONCLUSION

For the foregoing reasons, the Government’s motion (ECF No. 280) is GRANTED IN

PART AND DENIED IN PART. The Government’s motion is granted to the following extent:

(1) Norton must strike Bullet 6 on Slide 20 of the October Demonstratives and (2) Slide 89 of the

October Demonstratives is excluded. Norton’s cross motion to modify the scheduling order (ECF

No. 283) is DENIED. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: January 31, 2022 RUDOLPH CONTRERAS
United States District Judge

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