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RCHFU, LLC v. Marriott Vacations Worldwide Corp.

United States District Court, D. Colorado

April 7, 2019

RCHFU, LLC et al., Plaintiffs,


          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on Plaintiffs' request for supplemental expert reports (ECF #376)[1] (which was referred to this Magistrate Judge (ECF #381)), Aspen Highland's amended response (ECF #375), the Marriott Defendants' opposition (ECF #377), and Marriott's restricted documents (ECF #378). The Court has reviewed each of the aforementioned documents, responses, replies, and any attachments. The Court has also considered the entire case file, the applicable law, and is sufficiently advised in the premises. The Court ORDERS as follows DENYING the motion.[2]

         Factual and procedural background:

“On October 26, 2018, Plaintiffs served reports from experts with whom they had been working for over a year: Chekitan Dev, a professor and hospitality industry “branding” expert who addresses so-called “halo” and “horn” effects of the MVC Affiliation, and Jonathan Simon, a supposed hospitality industry financial expert who purports to quantify the alleged “halo” effect. On December 28, 2018, the Marriott Defendants submitted rebuttal expert reports from Ceridwyn King, a hospitality industry branding expert who rebuts the Dev report, and Mark Israel, an economist who rebuts both the Dev and Simon reports. Id. ¶ 3. As part of their rebuttal of the supposed halo/horn effect, King and Israel cite data from Sales and Marketing Surveys taken from 2013 to 2018.

         Marriott's response (ECF #377, pp. 1-2) (internal citations removed). The Sales and Marketing Surveys (SMS) are yet another set of surveys in a case chock full of surveys. In the SMS, Marriott asks various individuals, e.g., owners who have purchased, owners who have not purchased, non-owners who have purchased and non-owners who have not purchased, to identify important factors in their decision making. See surveys (ECF #378). Not surprisingly, one of the factors queried is regarding owner availability to utilize a Ritz-Carlton Club. Id.

         Upon determining to utilize the SMS for expert rebuttal, Marriott then disclosed the existence of the SMS on 12/28/2018. This led to some consternation and disagreement between the parties over the topic, landing us here.

         Plaintiffs believe that the SMS and associated documents justify Plaintiffs retaining a new expert, to analyze and opine on the data and that Plaintiffs are justified in their need and timing of that need pursuant to Federal Rules of Civil Procedure 16(b)(4) and 6(b)(1)(B). Marriott opposes (ECF #377). Aspen Highlands does not oppose so long as they are not affected. See Aspen Highland's amended response (ECF #375).

         The agreement:

Before delving into-if I get there- the various arguments for and against allowing Plaintiffs another expert to address this topic, the first issue is whether Plaintiffs and Marriot entered into an agreement to informally resolve this conflict-thus precluding the Court's involvement. Marriott asserts that, while it disputed Plaintiffs' position that the SMS survey needed to be provided prior to December 28, 2018, Marriott wanted to avoid another protracted discovery dispute and thus entered into an agreement to address and move beyond the issue. See Marx declaration (ECF #377-1). Plaintiffs do not dispute that there was an agreement touching on this issue but do dispute the contours of that agreement, in particular as to whether the agreement precluded Plaintiffs from designating a new expert on the topic. See Plaintiffs' request (ECF #376, p. 7).

         Marriott outlines what is believed were the specifics of an agreement in a letter from Counsel Marx to Plaintiffs' Counsel on January 11, 2019. The terms of the proposed agreement are:

In terms of additional documents, we will produce on or before Tuesday, January 15, the backup data and documents that were used to prepare the SMS Reports.
We will agree to make Messrs. Peters and Sonberg available for deposition in our Orlando offices (we can arrange a video conference if you wish) on the following dates (we propose that they be done on the same day): January 28, February 1, 4, 5, 7 or 8. Their depositions will be limited to the template SMS Survey and the SMS Reports (Peters) and the MVC Points pricing spreadsheets (Sonberg).
We will agree that your experts Simon and Dev (but not Robinson) may submit amended affirmative reports on or before 14 days after the depositions of Messrs. Peters and Sonberg are completed; however, such amendments must be limited to the SMS Survey, SMS Reports and the MVC Points pricing spreadsheets. Our experts King and Israel (but not Dunec or Tantleff) will submit similarly limited rebuttal reports within 14 days of receiving your amended reports.
We will agree to defer the deadline for completion of expert depositions for 45 days after the service of ...

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