United States District Court, D. Colorado
RCHFU, LLC, a Colorado limited liability company, et al., Plaintiffs,
v.
MARRIOTT VACATIONS WORLDWIDE CORPORATION, et al., Defendants.
ORDER
PHILIP
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Plaintiffs' Objections to
the Magistrate Judge's Order Denying Their Request to
Designate a New Expert to Analyze New Data [Docket No. 395,
Public Entry Docket No. 396]. Plaintiffs filed a Request for
Supplemental Expert Reports to Analyze Newly Produced Data
[Docket No. 376] on March 28, 2019. The Marriott defendants
opposed the motion [Docket No. 377] and defendant Aspen
Highland Condominium Association took no position on the
motion [Docket No. 375]. The magistrate judge denied the
motion on April 7, 2019. Docket No. 386. Plaintiffs filed
their objection to the magistrate judge's order on April
22, 2019. Docket No. 395.
I.
BACKGROUND
Plaintiffs
are owners of fractional interests in the Ritz-Carlton Club
Aspen Highlands who brought this lawsuit against defendants
arguing that the values of their timeshares were decimated by
defendants allowing club access to Marriott timeshare
members. Docket No. 250 at 10, ¶ 1; 13, ¶ 10; 88,
¶ 81. Plaintiffs refer to the “benefit to one
brand through affiliation with a higher-end brand” as
“the halo effect.” Docket No. 395 at 5. On
October 26, 2018, plaintiffs disclosed three experts, two of
whom who were to provide opinions on the halo effect. Docket
No. 395 at 5-6.[1] On December 28, 2018, the Marriott
defendants submitted two rebuttal expert reports to rebut
plaintiffs' experts' opinions on the halo effect.
Docket No. 377 at 1-2.[2] The Marriott defendants' rebuttal
experts cited data from Sales and Marketing Surveys
(“SMS”). Id. The SMS surveyed
individuals who had and had not purchased Marriott
memberships to identify which Marriott features were
important to them in making their membership decisions.
Marriott submitted the survey results for the purpose of
demonstrating that Marriott timeshare members did not base
their purchasing decisions on access to the Ritz-Carlton Club
and, therefore, Marriott achieved no halo effect by the
co-marketing of Marriott and Ritz-Carlton. Id.
Plaintiffs
challenged the Marriott defendants' late disclosure of
the SMS and wrote to counsel on January 9, 2019 in an attempt
to begin the meet and confer process regarding how to cure
the prejudice it suffered from the late production and to
obtain more documents and data related to the SMS. Docket No.
376-1 at 2-3, ¶ 6; Docket No. 395 at 7. On January 11,
counsel for the Marriott defendants wrote back to plaintiffs,
stating that, in order for the parties to “move forward
without the need to burden the Court with another discovery
dispute, ” he was proposing the following:
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 all expert
reports.
Docket No. 376-5 at 5. The Marriott defendants stated they
believed this proposal had been accepted. Docket No. 377-1 at
4, ¶ 13. Specifically, the Marriott defendants'
counsel stated the proposal set forth in the January 11
letter was agreed to during a telephone call on January 14,
2019. Id. The Marriott defendants then took actions
contemplated by the agreement, such as producing backup data
and documents used to prepare reports summarizing the SMS
data. Id. at 5, ¶ 14. Moreover, plaintiffs took
Peters' deposition, also referenced in the agreement, on
February 13, 2019. Id. at 6, ¶ 18. Plaintiffs
provided what was contemplated in the agreement, namely,
supplemental expert reports from their two experts that
incorporated evidence from the SMS surveys. Docket No. 395 at
10.
On
March 7, 2019, the Marriott defendants filed a status report
and requested that the court enter a revised scheduling order
based on the email agreement. Docket No. 361. On March 11,
plaintiffs asked the Marriott defendants to agree to
plaintiffs disclosing an additional expert to conduct an
analysis on the SMS data. Docket No. 376-1 at 5, ¶ 17.
The Marriott defendants opposed plaintiffs disclosing a new
expert. Id., ¶ 18. Plaintiffs filed a reply to
the Marriott defendants' status report and request,
proposing their own amended scheduling order. Docket No. 362.
Plaintiffs then filed this motion. Docket No. 376.
The
magistrate judge reviewed whether an agreement had been made
between the parties concerning additional discovery. Docket
No. 386 at 3. The magistrate judge determined the Marriott
defendants had “persuasive evidence” that an
agreement had been entered into, namely, the combination of
the January 11 letter and both parties' actions taken
pursuant to the agreement. Docket No. 386 at 5. Finding there
to be a binding agreement between the parties limiting
additional discovery, the magistrate judge denied
plaintiffs' motion for supplemental expert reports beyond
what was set out in the January 11 letter. Docket No. 386 at
7.
II.
STANDARD OF REVIEW
When
reviewing a party's objection to a magistrate judge's
order on a non-dispositive matter, the Court “must
consider timely objections and modify or set aside any part
of the order that is clearly erroneous or is contrary to
law.” Fed.R.Civ.P. 72(a); Hutchinson v. Pfeil,
105 F.3d 562, 566 (10th Cir. 1997). The clearly erroneous
standard “requires that the reviewing court affirm
unless it ‘on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.'” Ocelot Oil Corp. v. Sparrow
Industries, 847 F.2d 1458, 1464 (10th Cir. 1988)
(quoting United States v. United States Gypsum Co.,
333 U.S. 364, 395 (1948)). When applying the “clearly
erroneous” standard, the Court is not entitled to
reverse the magistrate judge's findings “simply
because it is convinced that it would have decided the ...