United States District Court, W.D. Washington, Seattle
ORDER GRANTING LEAVE TO FILE SUPPLEMENTAL REBUTTAL
L. ROBART UNITED STATES DISTRICT JUDGE.
the court is Plaintiffs Katherine Moussouris, Holly Muenchow,
and Dana Piermarini's (collectively,
"Plaintiffs") motion for leave to file a
supplemental rebuttal report of Dr. Henry S. Farber. (Mot.
(Dkt. ## 458 (sealed), 459 (redacted)).) Microsoft
Corporation ("Microsoft") opposes the motion.
(Resp. (Dkt. # 464).) The court has reviewed the parties'
filings in support of and in opposition to the motion, the
relevant portions of the record, and the applicable law.
Being fully advised,  the court GRANTS Plaintiffs' motion
for leave to file Dr. Farber's supplemental rebuttal
March 15, 2018, Microsoft filed a motion for summary
judgment. (MS J (Dkt. ## 403 (sealed), 489 (redacted).) In
its motion, Microsoft highlights the lack of statistical
evidence supporting Ms. Piermarini's disparate impact
claim regarding her employment in the Solution Sales
Discipline within the Sales Profession. (MSJ at 22.)
Plaintiffs, in their opposition to Microsoft's motion,
rely on Dr. Farber's statistical analysis of employees in
the Sales Profession as evidence supporting Ms.
Piermarini's claim. (See MSJ Resp. (Dkt. ## 436
(sealed), 476 (redacted)); Farber Rebuttal Rep. (Dkt. ## 438
(sealed), 453-13 (redacted)).) Dr. Farber reviewed data that was
produced by Microsoft, and he understood this data to
represent all workers in the Sales Profession. (Farber Supp.
Rebuttal Rep. (Dkt. # 458-1 (sealed)) ¶ 2.) Thus, after
analyzing the data, Dr. Farber reached a conclusion he
purported to be representative of the entire Sales
Profession. (See id.)
however, Dr. Farber learned that the data produced by
Microsoft did not include all of the employees in the Sales
Profession. (See id.) Instead, the data included
"all employees who worked in the Solution Sales
Discipline of the Sales Profession at any point during the
discovery period." (Id.) In other words, the
data Dr. Farber analyzed represented all employees who worked
at some point in the Solution Sales Discipline, even if they
were not in the Solution Sales Discipline for the entire
period. (See id.) Based on this revelation, Dr.
Farber conducted an analysis of the Solution Sales employees,
limited to the time the employees worked in that
seek leave to file this supplemental rebuttal report from Dr.
Farber, arguing that the supplemental report "does not
offer new opinions but is merely a timely supplement aimed at
addressing and explaining the confusion that emerged
regarding the scope of the data Microsoft
produced." (Mot. at 2.) The court now addresses the
must submit its expert witness disclosures "at the times
and in the sequence that the court orders." Fed, R, Civ.
P.- 26(a)(2)(G), However, "if the-party-learns that in
some material respect the disclosure or response is
incomplete or incorrect, " the party "must
supplement or correct its disclosure or response."
Id. 26(e)(1). Rule 26(e)'s duty to supplement is
not "a loophole through which a party who ... wishes to
revise her disclosures in light of her opponent's
challenges to the analysis and conclusions therein, can add
to them to her advantage after the court's
deadline." Luke v. Family Care and Urgent Med.
Clinics, 323 Fed.Appx. 496, 500 (9th Cir. 2009).
Instead, Rule 26(e) should only apply when the party
"correct[s] an inaccuracy" or "fill[s] in a
gap based on information previously unavailable."
reviewed the materials, the court finds that Dr. Farber's
supplemental rebuttal report falls within the confines of
Rule 26. Dr. Farber's original analysis of the Sales
Profession was based on his belief that the data concerned
the Sales Profession. (Farber Supp. Rebuttal Rep. ¶ 2.)
Upon learning that the data did not, as he believed,
represent all employees within the Sales Profession, he
revised his analysis with the appropriate adjustments to fit
what the data actually represented-all employees who worked
for some period of time within the Solutions Sales
Discipline. (Id. ¶ 3.) These new calculations
are not based on new opinions or new theories; rather, they
are corrections of Dr. Farber's analysis based on new
revelations concerning the data he reviewed.
complains that Dr. Farber's supplemental rebuttal report
could not be correcting inaccuracies because the new report
"no longer offers any opinion about the Sales
Profession'' and instead ''replace[s] an
opinion on the Sales Profession with-a new one on the
Solution Sales Discipline." (Resp. at 4 (emphasis
removed).) The court acknowledges that the scope of Dr.
Farber's corrections constitute more than the usual
corrections of mathematical calculation errors. See Hunt
v. Cont'l Cas. Co., No. 13-cv-05966-HSG, 2015 WL
4537170, at *2 (N.D. Cal. July 24, 2015). But the rationale
behind the corrections remains the same. Dr. Farber conducted
his initial analysis on what he believed-erroneously-to be
data regarding the Sales Profession. However, because the
data does not encompass every employee in the Sales
Profession, the correct analysis could not possibly be of the
Sales Profession. Thus, in correcting his report, Dr. Farber
had to change the focus to the Solutions Sales Discipline-the
group that the data actually represents.
this reason, Dr. Farber's supplemental rebuttal report
differs from the supplemental report that was rejected in
Welch v. Eli Lilly & Co., No.
1:06-cv-0641-RLY-JMS, 2009 WL 700199 (S.D. Ind. Mar. 16,
2009). In Welch, the defendant challenged the
expert's analysis in part because the expert did not
perform a regression analysis. Id. at *3. The expert
subsequently performed a regression analysis in a
"supplemental" report. Id. The court
concluded that "[t]he fact that entirely new analyses
were conducted demonstrates the report cannot be
characterized as simply a supplemental. . . report."
Id. at *4. In other words, the Welch expert
made an error of judgment, and not an error of fact, in
choosing not to perform a regression analysis. That error of
judgment could not be supplemented under Rule 26. See
Farber did not make an error, of judgment; he. did. Not
choose to analyze the Sales Profession instead of the
Solution Sales Discipline. (See Farber Supp.
Rebuttal Rep. ¶¶ 2-3.) Rather, he made an error of
fact in believing the underlying data dealt with the Sales
Profession, and thus, characterized his analysis as a study
of the Sales Profession. (Id. ¶ 2.) Such an
error does not reflect "gamesmanship" but instead
"inadvertent error or omission" that is well
within the ambits of Rule 26. See Wright &
Miller, 8A Fed. Prac. & Proc. Civ. § 2049.1 (3d ed.
2018). Accordingly, the court grants Plaintiffs leave to file
Dr. Farber's supplemental rebuttal report.