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Mayor & City Council of Baltimore v. Unisys Corporation

United States District Court, Fourth Circuit

September 5, 2013

THE MAYOR AND CITY COUNCIL OF BALTIMORE, Plaintiff,
v.
UNISYS CORPORATION, Defendant

MEMORANDUM OPINION

STEPHANIE A. GALLAGHER, Magistrate Judge.

Plaintiff, The Mayor and City Council of Baltimore, ("the City") has filed suit against Defendant Unisys Corporation ("Unisys") alleging breach of contract.[1] The Complaint alleges that Unisys agreed to overhaul the City's existing tax assessment and collection system through the implementation of an Integrated Property Tax System project ("IPTS"). See Compl. ¶ 7-12. The Complaint further alleges that Unisys breached this contract when it failed to deliver a functional system after approximately nine years and the City's expenditure of more than eight million dollars. Id. at ¶ 24, 29. The parties have engaged in several discovery disputes since the start of litigation. Currently pending before the Court is Unisys's Motion to Strike And/Or Preclude Plaintiff's Rebuttal Experts. [ECF No. 82].

In its motion, Unisys argues that the City's disclosure of two rebuttal witnesses is improper because the witnesses are not, in fact, rebutting any of the opinions offered by Unisys's experts. See Def.'s Mot. To Strike And/Or Preclude Pl.'s Rebuttal Experts, [ECF No. 82]. Unisys believes the City is misleading the court by labeling its witnesses as rebuttal witnesses in an attempt to "game the system' by waiting to see who Unisys identified and then identifying supplemental experts..." Id. at 1. Consequently, Unisys urges this Court to preclude the City's purported rebuttal witnesses from testifying at trial pursuant to Rule 37(c) of the Federal Rules of Civil Procedure. The issues have been briefed and no hearing is required. See Local Rule 105.6 (D. Md. 2011). For the reasons stated herein, the motion is DENIED, but the scheduling order will be modified to address Unisys's concerns.

I. BACKGROUND

This Court has already extended the deadline for the parties' expert witness disclosures several times. The Court first entered a Scheduling Order on September 10, 2012. See [ECF No. 24]. According to that Order, the City's 26(a)(2) expert disclosures were due on January 15, 2013. Likewise, Unisys's expert disclosures were due on February 15, 2013. See [ECF No. 24]. In accordance with the original Scheduling Order, the City named one expert, F. Guy Bonney. The written report accompanying the disclosure of Bonney as an expert witness was limited to a discussion of the functionality, or lack thereof, of the IPTS software that Unisys provided to the City. See [ECF No. 82] Ex. 1. Unisys also timely disclosed a liability expert, Edward Yourdon, and a damages expert, Elizabeth Dean.

The Court amended its original Scheduling Order and extended the deadline for the City's expert rebuttal disclosures from March 1, 2013 to May 1, 2013. See [ECF No. 36]. Upon a joint motion by the parties, the Court further modified the Scheduling Order to allow a deadline of June 1, 2013 for the City's expert rebuttal disclosures. See [ECF No. 58]. Upon the City's motion and Unisys's consent, this Court granted an additional extension for the City's rebuttal disclosures to June 21, 2013. See [ECF No. 71]. On that date, the City disclosed two rebuttal witnesses, Chad L. Staller, a damages expert, and Marilyn Hallstrom, a liability expert. A written report accompanied each disclosure. See [ECF No. 82] Ex. 4.

II. LEGAL STANDARD

A party must disclose to its adversary the identity of any witness it plans to call at trial for the presentation of evidence. Fed.R.Civ.P. 26(a)(2)(A). A witness that is retained solely to provide expert testimony must prepare and sign a detailed written report that includes

(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B). A party must also disclose a rebuttal witness whose testimony is "intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C)..." Fed.R.Civ.P. 26(a)(2)(D)(ii). This disclosure must be made within 30 days after the other party's disclosure, or in accordance with a stipulation or court order. Id.

III. ANALYSIS

A. Marilyn Hallstrom's Expert Report

Unisys moves to strike Marilyn Hallstrom as a rebuttal witness because it believes her written report does not rebut the report of its liability expert, Edward Yourdon. See [ECF No. 82] at 6. Unisys argues that Hallstrom's report discusses in general terms the baseline functions of a property tax system and fails to "discuss or to cite any specific requirements of the parties' contract." Rep. to Resp. to Mot. to Strike and/or Preclude Pl's. Rebuttal Experts 4, [ECF No. 89]. Unisys also claims that Hallstrom's report merely "echoes the opinion" of the City's earlier-disclosed liability expert, F. Guy Bonney. Id. In order to determine whether Hallstrom's report actually contradicts or rebuts evidence on the issue of liability, one must examine the conclusions of Unisys's liability expert.

Edward Yourdon was tasked, in part, with analyzing the conclusions of the City's liability expert and determining the readiness of the IPTS for a formal User Acceptance Test. With respect to the latter assignment, Yourdon concluded that the IPTS "was ready, and had satisfied the prerequisite conditions required for the parties, to carry out a formal User Acceptance Test." See [ECF No. 82] Ex. 2, at 7. Specifically, Yourdon opined that "[t]he User Acceptance Test was the contractually required way to proceed after the development effort and system testing had been carried out by UNISYS." Id. at 9. Yourdon also noted that the User Acceptance ...


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