FALCONE GLOBAL SOLUTIONS, LLC, Plaintiff, v. MAURICE WARD NETWORKS, LTD. d/b/a/ Maurice Ward Group; MAURICE WARD & CO., BV; and MAURICE WARD & CO., S.R.O., Defendants CIVIL ACTION FILE NO. 1:18-CV-3379-MHC United States District Court, N.D. Georgia, Atlanta Division Filed September 13, 2022 Cohen, Mark H., United States District Judge ORDER *1 By Order dated February 23, 2022, this Court granted Defendants Maurice Ward Networks, Ltd., Maurice Ward & Co., BV, and Maurice Ward & Co., S.R.O. (“collectively, Maurice Ward”)'s Motion to Strike and Exclude Plaintiff Falcone Global Solutions, LLC (“Falcone”)'s use of non-disclosed evidence of damages relied upon by Falcone's expert Theodore Brown, CPA (“Brown”), as well as Brown's opinions regarding that non-disclosed evidence. Feb. 23, 2023, Order [Doc. 125]. The Court found that Falcone failed to properly disclose the job history figures from its FalcTrak system which were relied upon by Brown in his damage calculations in violation of Rules 26(a)(1)(A)(iii) and 26(e)(1)(A) of the Federal Rules of Civil Procedure and Local Rule 26.1B(1) of this Court. Id. at 24-28. The Court also found that Falcone's failure to disclose this information was not substantially justified nor harmless. Id. at 28-32. The Court also stated as follows: Falcone's predicament is of its own making. If Falcone intended to present evidence of lost profit damages, it should have disclosed the information supporting such calculations during fact discovery to enable Maurice Ward to conduct its own discovery regarding those claims. Fact discovery regarding the claims remaining in this case terminated on November 29, 2019, and the deadline for expert depositions was August 31, 2021. July 26, 2019, Order; Jan. 11, 2021, Scheduling Order [Doc. 83]. Additionally, Falcone's attempt to remedy its legal obligation to disclose information through an offer to Maurice Ward to login to the FalcTrak system almost two years after the deadlines for fact discovery and expert depositions does not absolve Falcone from failing to meet its legal disclosure requirements pursuant to FED. R. CIV. P. 26(a)(1)(A)(iii). Finally, the Court notes that Maurice Ward's relief is consistent with the Court's previous order denying a Motion to Reopen Limited Discovery: Obviously, in the event Falcone purports to rely upon documents to support its damage claims that have not been produced to Maurice Ward in response to previous discovery requests, Maurice Ward will be able to make an appropriate objection to exclude those documents from being offered into evidence or from being otherwise relied upon by Falcone. See FED. R. CIV. P. 37(c)(1). March 25, 2021, Order [Doc. 95] (emphasis added). Feb. 23, 2022, Order at 30-31. The Court also ordered the parties to file a proposed consolidated pretrial order within thirty (30) days.[1] Id. at 40. On March 3, 2022, the Court granted the parties' joint motion to extend the time within which to file a consolidated pretrial order for fourteen (14) days, to and through April 8, 2022, given scheduling conflicts. Joint Mot. for Extension Within Which to File Consolidated Pretrial Order [Doc. 126]; Mar. 3, 2022, Order [Doc. 127]. Three days prior to filing the parties' proposed consolidated pretrial order, Falcone filed a Motion for Leave to File Supplemental Expert Report (“Pl.'s Mot.”) [Doc. 128] so as to permit Brown to offer an opinion as to lost profits based upon his analysis of other documents (such as tax returns) that were disclosed during discovery. Pl.'s Mot. at 2. Falcone contends that Brown's supplemental report, which is attached to the motion, is timely, is substantially justified, and does not prejudice Maurice Ward. Id. at 6-10; Suppl. Expert Report of Theodore Brown [Doc. 128-1]. Maurice Ward opposes the motion, arguing that the supplemental report is not timely, cannot be used to remedy a prior deficient report, and would cause harm to Maurice Ward. Defs.' Resp. in Opp'n to Pl.'s Mot. [Doc. 134] at 3-8. In its reply brief, Falcone suggests that if the Court finds that Brown's supplemental report is not permissible under Rule 26(e) of the Federal Rules of Civil Procedure, it has the discretion to impose a “different sanction” than exclusion of the supplemental report for Falcone's prior failure to disclose information with respect to its lost profit calculations; namely, “an award of expenses to Defendant along with giving Defendants an opportunity to depose Mr. Brown regarding his supplemental report[.]” Pl.'s Reply in Supp. of Pl.'s Mot. [Doc. 135] at 8. *2 The rule providing for the supplementation of an expert report states as follows: (e) Supplementing Disclosures and Responses. (1) In General. A party who has made a disclosure under Rule 26(a)--or who has responded to an interrogatory, request for production, or request for admission--must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court. (2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due. FED. R. CIV. P. 26(e). The purpose of supplementation under Rule 26(e) is to complete or correct an expert report that contains information that was otherwise timely disclosed. Clearly, this is not a situation where Falcone learned that its previous timely disclosure was “incomplete or incorrect” and the additional information was not otherwise made known to opposing parties. “It is disingenuous to argue that the duty to supplement under Rule 26(e)(1) can be used as a vehicle to disclose entirely new expert opinions after the expert disclosure deadline established by the court....” Bowman v. Hawkins, No. Civ.A. 04-00370-CG-B, 2005 WL 1527677, at *2 (S.D. Ala. June 28, 2005) (quoting Carter v. The Finely Hosp., No. 01 C 50468, 2003 WL 22232844, at *2 (N.D. Ill. Sept. 22, 2003) (alterations accepted)). See also Hamlett v. Carroll Fulmer Logistics Corp., 176 F. Supp. 3d 1360, 1363 n.5 (S.D. Ga. 2016) (“[T]he rules and case law require timely disclosure and timely supplementation; trial by ambush is not permitted. Nor are reports that are blatantly untimely or rely on supplementation to dodge a deadline.”); Eli Rsch., LLC v. Must Have Info Inc., No. 2:13-CV-695-FTM-38CM, 2015 WL 13734988, at *3 (M.D. Fla. Sept. 9, 2015) (concluding that a plaintiff cannot use the duty of supplementation to add to an expert's opinions regarding matters outside the context of the expert report as previously submitted); K&H Dev. Group., Inc. v. Howard, 255 F.R.D. 562, 567-68 (N.D. Fla. 2009) (striking an expert's “supplemental” report that included a new theory of damages based on information available when expert prepared the initial report); Cochran v. Brinkmann Corp., No. 1:08-cv-1790-WSD, 2009 WL 4823858 at * 5 (N.D. Ga. Dec. 9, 2009), aff'd, 381 F. App'x 968 (11th Cir. 2010) (stating that the supplementation option under Rule 26(e) “is not a device to allow a party's expert to engage in additional work, or to annul opinions or offer new ones to perfect a litigating strategy.”). Falcone's reliance upon Perrigo Co. v. Merial Ltd., No. 1:15-CV-03674-SCJ, 2018 WL 11350563 (N.D. Ga. Apr. 30, 2018), is inapposite. In Perrigo, the plaintiff supplied the defendant with an expert report one week prior to the end of the discovery period, and the Court permitted an extension of time to depose the expert. Two days before the expert's deposition, the expert reviewed the testimony of another witness and realized that his original calculations were inaccurate and would have to be modified based upon a misunderstanding of certain data. At the expert's deposition, he indicated he would be revising his report, which was served on the defendant six days later. Notwithstanding the court extending the period for expert discovery, the defendant filed a motion to exclude the supplemental expert report received seven weeks earlier as untimely. The court denied the motion, finding that the supplemental report was “properly characterized as a supplement and not a new disclosure,” that the court's order permitting the expert's deposition did not prohibit the supplementation of prior timely disclosures, and the expert “sought to correct a newly discovered error (not add new theories of liability or utilize new models for calculating damages), and it did so quickly.” Id. at *6-7. *3 In Perrigo, the expert's supplemental report was offered to correct a mistake contained in a previous timely submitted report based upon information as to damages previously disclosed to the opposing party. In this case, Falcone attempts to use Rule 26(e) to “supplement” a previous expert report to add a new theory of damages because the prior opinion was based upon data that was not timely provided to Maurice Ward. This is not a case where Brown previously relied upon inaccurate data which needs to be corrected; on the contrary, this is a case where the Court found that Falcone failed to disclose the job history figures relied upon by Brown in his initial opinion. Falcone's proposed use of Rule 26(e) would make a mockery of the duty to disclose under Rule 26(a)(1)(A) and permit a party to get a “do over” notwithstanding a failure to properly disclose a damages claim. In its reply brief, Falcone appears to anticipate this Court's ruling and argues that, rather than denying the motion to supplement, the Court should instead allow the supplementation and award expenses to Maurice Ward and permit them to re-depose Brown. The Court declines the invitation. In the Court's view, this would reward Falcone with a “second bite of the apple” notwithstanding their blatant failure to disclose its damages claim as detailed in this Court's February 23, 2022, Order. Once again, this is not the situation envisioned by Rule 26(e), which is to be able to supplement or correct an otherwise timely disclosure because it was incomplete or incorrect. Based on the foregoing, it is hereby ORDERED that Plaintiff Falcone global Solutions, LLC's Motion for Leave to File Supplemental Expert Report [Doc. 128] is DENIED. IT IS SO ORDERED this 13th day of September, 2022. Footnotes [1] The only claim of Falcone's remining for trial is a claim for breach of contract under Court I of its Second Amended Complaint. Aug. 25, 2020, Order. [Doc. 72].