DROPZONEMS, LLC, an Oregon LLC, Plaintiff, v. STEVEN COCKAYNE; NATALIE ROGERS; DAVID THORPE; and PACIFIC NORTHWEST SKYDIVING CENTER, LLC, an Oregon LLC, Defendants. STEVEN COCKAYNE, Third-Party Plaintiff, v. KYLE WILLIAMS; ALEX TOGSTAD; TIMOTHY NOONAN; and DROPZONEMS, LLC, an Oregon LLC, Third-Party Defendants Case No. 3:16-cv-02348-YY United States District Court, D. Oregon Filed October 15, 2019 You, Youlee Yim, United States Magistrate Judge SUPPLEMENTAL FINDINGS AND RECOMMENDATION *1 In its Objections (ECF #137) to the September 12, 2019 Findings and Recommendations (ECF #122), plaintiff DropzoneMS, LLC, correctly submits that it moved to strike the supplemental declaration of Steven Cockayne (ECF #113) during oral argument on the cross-motions for summary judgment, and that the court took the oral motion under advisement but failed to rule on it. See Pl.'s Objections to Findings and Recommendations 28-29, ECF #137. These Supplemental Findings and Recommendation resolve this oral motion to strike only. Rule 56 provides that “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” F.R.C.P. 56(c)(2). During oral argument, plaintiff asserted that Cockayne's supplemental declaration (“supplemental declaration”) included new argument and new expert opinion, and that the supplemental declaration should be stricken because plaintiff had no opportunity to respond and because it was not disclosed before the deadline for expert testimony. Transcript of Proceeding 5:7-6:2 (April 16, 2019), ECF #131. Defendants countered that the supplemental declaration was merely their response to the belated Frederiksen-Cross declaration (ECF #93), which was plaintiff's first offering of expert testimony and its first articulation of any infringement analysis. Id. at 6:11-7:10. As the Findings and Recommendations recommend that the Frederiksen-Cross declaration should be excluded as untimely, it would be inconsistent to admit Cockayne's supplemental declaration as rebuttal to that evidence. Thus, plaintiff's oral motion to strike should be granted. However, excluding the supplemental declaration does not alter the analysis or outcome of the Findings and Recommendations. The Findings and Recommendations rely on Cockayne's supplemental declaration in only two places. First, they rely on paragraphs 390, 392, and 393 of the supplemental declaration to illustrate the proposition that metadata can change without altering the underlying data, and recommend overruling plaintiff's objection to the authenticity of Cockayne's Expert Report (ECF #70-1). Findings and Recommendations 9-10, ECF #122. Even if this illustration is stricken, it does not alter the remaining reasoning and analysis. Metadata is still just information about other data, and plaintiffs still make no credible challenge to the underlying data. If the Flare source code that was produced to plaintiff is different than the Flare source code analyzed in Cockayne's Expert Report, plaintiff should have identified differences in the source code, not merely the metadata. Second, the Findings and Recommendations rely on Exhibit 11 of the supplemental declaration to illustrate the potential unreliability of the methodology employed by the Araxis Merge program. Findings and Recommendations 15, ECF #122. Ignoring this illustration also has no effect on the remaining analysis. Plaintiff bears the burden to show that the evidence generated by the Araxis Merge program was the product of reliable principles and methods under F.R.E. 702. Yet plaintiff maintains that this evidence was not the result of expert testimony at all, let alone that the methodology used to produce it was reliable. *2 Other than these two references, the Findings and Recommendations do not rely on Cockayne's supplemental declaration. Thus, the two portions of the Findings and Recommendations (ECF #122) that rely on the supplemental declaration should be stricken. The Findings and Recommendations, including the ultimate recommendations, are otherwise unaffected. RECOMMENDATION Plaintiff's oral motion to strike the supplemental declaration of Steven Cockayne (ECF #113) should be granted and, as identified above, those two portions of the Findings and Recommendations that rely on the supplemental declaration should be stricken. SCHEDULING ORDER These Findings and Recommendation will be referred to a district judge. Objections, if any, are due Tuesday, October 29, 2019. Objections are limited to the motion to strike discussed herein and may not exceed the scope of these Findings and Recommendation, as lengthy objections to the September 12, 2019 Findings and Recommendations have already been filed. See ECF #137. If no objections are filed, then the Findings and Recommendation will go under advisement on that date. If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement. NOTICE These Findings and Recommendation are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.