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Probatter Sports, LLC v. Sports Tutor, Inc.

United States District Court, D. Connecticut

March 23, 2016

SPORTS TUTOR, INC., Defendant .


Hon. Vanessa L. Bryant United States District Judge

Plaintiff ProBatter Sports, LLC (“ProBatter”) brings this patent infringement action against Defendant Sports Tutor, Inc. (“Sports Tutor”). The Court granted summary judgment on the question of infringement and thereafter conducted a five-day bench trial on the questions of invalidity and relief.[1] In its post-trial briefing, Sports Tutor argues that the Court should disregard all argument and evidence on damages because ProBatter failed to comply with its discovery obligations. This memorandum addresses only this argument, which raises three interrelated issues.

The first issue is whether ProBatter violated its discovery obligations. It did. ProBatter initially disclosed lost profits as the measure of damages. Nearly seven years later and long after the close of discovery, ProBatter disclosed reasonable royalty as the measure of damages. ProBatter first disclosed this correction in its proposed findings of fact and conclusions of law, submitted in conjunction with the joint trial memorandum. The correction was untimely. ProBatter also failed to timely supplement its initial disclosure with its computation of damages. The computation of damages was disclosed several weeks after the parties filed their joint trial memorandum.

The second issue is whether these errors were harmless. They were not. American discovery prohibits trial by surprise, and ProBatter sandbagged Sports Tutor with its last minute disclosure of essential information on a material issue. Sports Tutor lacked sufficient time to analyze the damages evidence already in its possession, conduct discovery related to this evidence, or obtain an expert to challenge the reasonable royalty calculation. ProBatter’s error forced Sports Tutor to cobble together a last-minute defense without the opportunity for discovery.

The third issue is whether excluding all evidence and argument on damages would be appropriate. Jurists of reason could disagree. ProBatter’s callous disregard for the rules governing discovery prevented Sports Tutor from defending itself, and additional litigation unfairly deprives the hundreds of other litigants appearing before this Court of its limited time and resources-a substantial amount of which have already been invested in this litigation over the last decade. The Court, however, will not impose such a drastic sanction. Depriving a wronged litigant of its opportunity to potentially recover millions is simply too severe. The Court rules that justice would be best served by providing Sports Tutor with a short period for damages discovery and then reconsidering damages in light of this evidence.


The issues presented require a circumscribed review of this action’s lengthy procedural history. ProBatter sought judicial assistance in December 2005. ECF No. 1. The filing of the complaint automatically triggered this District’s standing order on pretrial deadlines. ECF No. 2. The parties were ordered to complete discovery by June 2006 unless their Federal Rule of Civil Procedure 26(f) Report (“Rule 26(f) Report”) proposed a different schedule and was approved by the Court. Id. The parties shirked their duty to timely file a Rule 26(f) Report, but the Court extended the deadline sua sponte and ordered one filed by May 21, 2006. ECF No. 28.

On May 22, 2006, after the second deadline passed, the parties filed their first Rule 26(f) Report. ECF No. 34. The parties proposed conducting discovery in two phases. Id. at V.A. The first phase would deal with Sports Tutor’s affirmative defense, and the second phase would deal with all other matters. Id. If the Court accepted the two-phased approach to discovery, the parties proposed staying the second phase until the Court ruled on Sports Tutor’s motion for summary judgment. Id. The Court accepted the parties’ proposed two-phased approach to discovery. ECF No. 41.

In September 2006, Sports Tutor moved for summary judgment, ECF Nos. 50, and in April 2007, briefing on that motion completed after the issuance of five extensions, ECF Nos. 61; 66; 70; 86; 108. In May 2007, the action was transferred to this Chambers, ECF No. 111, and the Court ordered the parties to file a joint status report, ECF No. 112. The parties disclosed that discovery was being conducted in two phases, that the first phase of discovery had been completed, and that “the parties would require a revised scheduling order governing [the second phase of discovery], the exact nature and scope of which cannot yet be known.” ECF No. 116. In March 2008, the Court denied Sports Tutor’s motion for summary judgment without prejudice and ordered the parties to file a revised Rule 26(f) Report by April 2008. ECF No. 127.

In April and May 2008, the parties filed a second and third Rule 26(f) Report. ECF Nos. 130; 138. Neither Rule 26(f) Report proposed an agreed-upon schedule for conducting discovery. Id. Sports Tutor essentially proposed staying discovery pending the outcome of reexamination and in the alternative, to conduct discovery in two more phases. Id. The first phase of discovery would deal with Markman issues and commence immediately. Id. The second phase of discovery would deal with all other issues and would not be due until after the Court rendered its Markman decision. Id. ProBatter sought immediate discovery on all issues. Id. In the third Rule 26(f) Report, the parties agreed that ProBatter would “submit an initial assessment of the legal basis for its damages claims in the Rule 26(a)(1) Mandatory Disclosures.” Id. (emphasis added).

In May 2008, after the parties filed their second and third Rule 26(f) Reports, the Court held a hearing with respect to attorney disqualification. ECF No. 152. During that hearing, the parties discussed discovery issues. Id. In relevant part, ProBatter’s counsel stated:

On damages we’ll call a damages expert. In cases like these the Federal Circuit holds that the damages that are properly attributable are reasonable royalty of the defendant’s sales. So we need to know two things. We need to know what their sales are and we need to know what a reasonable royalty would be and the person to determine the reasonable royalty is also an expert witness.

Id. at 22:15-22. Counsel also noted that the parties had not agreed on a proposed scheduling order and that neither of the parties’ conflicting proposed scheduling orders contained in their respective Rule 26(f) Reports had been approved. Id. at 40:16-21. The Court stated that it would enter its own scheduling order if the parties could not work something out by the end of the day. Id. at 42:5-7. The following day, the Court ordered discovery to commence immediately, set an August 2008 deadline for all fact discovery, made the expert reports due twenty-one days after the Court rendered its Markman decision, and set a trial date of October 2008. ECF No. 139.

The following discovery took place without court participation. In June 2008, ProBatter made the following initial disclosure with respect to Federal Rule of Civil Procedure 26(a)(1)(A)(iii), it stated:

ProBatter will likely provide an expert report on damages for its claims pursuant to Rule 26(a)(2) on or before the date when expert reports are due. ProBatter is seeking damages, costs and attorneys’ fees pursuant to 35 U.S.C. §§ 284, 285 for Sports Tutor’s infringement . . . . Since ProBatter has no knowledge at this time of Sports Tutor’s actual sales of its HomePlate machine, it is unable to calculate with any reasonable degree of certainty its actual damages but believes that its damages would be in excess of five million dollars, exclusive of attorneys’ fees and costs.

ECF No. 354-2 at 3-4 (emphasis added). Sports Tutor then asked ProBatter to “[i]dentify and describe each sale that you lost that was caused by Defendant, including all facts upon which you rely to established that Defendants caused you to lose the sale.” ECF No. 354-1. During a subsequent deposition of Gregory Battersby, ProBatter’s counsel objected to a question concerning reasonable royalty, stating that “I don’t believe it’s been established that ProBatter is seeking royalties yet with respect to the home place machine.” ECF No. 354-4 at 5 ...

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