no prejudice where opposing party had time with which to depose the expert and submit its own rebuttal reports
How later courts described this case
- no prejudice where opposing party had time with which to depose the expert and submit its own rebuttal reports
Written by the judges who cited it.
The opinion
KELLOGG. HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C.
Se SUMNER SQUARE
USDC SDNY IGIS M STREET, N.W.
DOCUMENT | SUITE 400
ELECTRONICALLY FILED WASHINGTON, D.C. 20036-3215
DOC #: (202) 326-7900
DATE FILED: 5/22/2024 FACSIMILE:
$e (202) 326-7999
May 14, 2024
The Honorable Margaret M. Garnett
United States District Court for the Southern District of New York
40 Foley Square, Room 2102
New York, NY 10007
Re: fuboTV Inc., et al. v. The Walt Disney Company, et al., No. 24-cv-1363
Dear Judge Garnett:
Fubo respectfully requests two modest changes to the expert disclosure protocol that will
ensure a full presentation of the facts at the Aug. 7-9 preliminary injunction hearing and work no
prejudice to Defendants at this early stage of discovery:
First, Fubo requests leave to supplement the expert declarations attached to its PI motion
with a four-page supplemental declaration from economist Jon Orszag (which Fubo already
provided to the Defendants on April 30) addressing the “Skinny Sports Bundle” market Fubo
identified in its recently filed amended complaint (Doc. 145). Mr. Orszag’s four-page supplement
is attached as Exhibit 1. Including this supplement in the PI record will not prejudice Defendants,
as fact discovery is just getting underway and expert discovery is still months away.
Second, the Court should amend the PI schedule (Doc. 140) to allow Fubo to submit
supplemental expert disclosures on June 24 for the limited purpose of disclosing analysis of
documents and data produced during fact discovery. Under the current discovery schedule,
Defendants’ experts—but not Fubo’s—are scheduled to file post-fact-discovery reports, meaning
that Fubo’s experts do not have an opportunity to disclose the evidence from discovery on which
they intend to rely at the PI hearing. Recognizing this disparity, Defendants already have
consented to Fubo’s experts filing supplemental disclosures on June 24 containing citations to
documents and deposition testimony from discovery. However, Defendants have refused to
consent to Fubo’s experts disclosing their analysis of the data produced in discovery in that June
24 disclosure. Defendants’ position would create an uneven playing field: their experts would be
free to incorporate data analysis into their reports (which are due July 10) and then testify about
that analysis at the August evidentiary hearing—but Fubo’s experts would be precluded from
performing their own analysis or testifying similarly at the hearing. That one-sided approach
would prejudice Fubo and deprive the Court of a full presentation of the evidence at the hearing.
KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C.
The Honorable Margaret M. Garnett
May 14, 2024
Page 2
Correcting this consequence of the existing schedule would not prejudice Defendants
because Fubo’s June 24 supplemental disclosures would be limited in scope and occur well in
advance of the July 10 due date for Defendants’ rebuttal expert reports. In fact, Fubo’s
supplemental disclosures would benefit Defendants by providing additional advanced disclosure
of any data analysis or comparable testimony that Fubo’s experts could offer at the hearing.!
1. The Court should permit Fubo to include in the PI record Mr. Orszag’s four-page
supplemental expert declaration addressing the Skinny Sports Bundle market identified in Fubo’s
April 29 amended complaint.
On February 20, Fubo filed its original complaint alleging that Defendants’ Joint Venture
(JV) will harm competition in several markets, including the Streaming Live Pay TV Market (in
which consumers buy subscriptions for live television packages from streamers such as Fubo and
the JV). On April 8, Fubo filed a motion for preliminary injunction supported by a declaration
from Mr. Orszag, which addressed this market.
On April 29, Fubo filed an amended complaint as of right under Federal Rule of Civil
Procedure 15(a). The amended complaint did not allege any new causes of action and included
limited revisions to the factual allegations. As relevant here, the amended complaint identified a
market for a skinny sports bundle, meaning a “television package consisting solely of channels
with sports content.” Doc. 145 § 187. These allegations were based in significant part on
statements that Defendants made after Fubo filed its original complaint (including in their motions
to dismiss), reflecting their view that the JV service would target a discrete segment of sports fans
who do not want the large bundle of channels that Defendants require other television distributors
(such as Fubo) to carry. See, e.g., id. § 196.
One day after filing its amended complaint, Fubo provided Defendants with Mr. Orszag’s
supplemental declaration addressing the Skinny Sports Bundle market and asked whether
Defendants would consent to include this declaration in the PI record. Defendants refused.
There is good cause to supplement the record with Mr. Orszag’s four-page declaration.
Courts “look[] favorably upon efforts to supplement the record absent prejudice or bad faith.” Katz
v. Metro. Transp. Auth., 2017 WL 6734185, at *12 (E.D.N.Y. Dec. 29, 2017) (collecting cases).
' The parties met and conferred regarding Fubo’s requests on April 24, 2024, from 4:00-
4:38 PM. Fubo was represented by Tom Schultz and Joshua Hafenbrack; Disney by Michael
Addis; Warner Bros. by Adam C. Hemlock; and Fox by Steven Bizar, Steven Engel, Andrew
Levander, and Michael McGinley. On May 1, Defendants confirmed that they oppose Mr.
Orszag’s supplement. Following an additional meet and confer on May 2 and additional email
correspondence, Fubo offered to limit expert supplements to (1) adding citations to documents
and testimony from discovery to Fubo’s experts’ existing reports, and (2) an appendix disclosing
expert analysis of data produced during discovery. Defendants confirmed on May 9 that they
would oppose any effort by Fubo’s experts to offer analysis of data produced during discovery.
KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C.
The Honorable Margaret M. Garnett
May 14, 2024
Page 3
Neither bad faith nor prejudice is present here. Mr. Orszag’s supplemental declaration addresses
new factual allegations from Fubo’s amended complaint, which in turn is based in significant part
on statements made by Defendants after Fubo filed its original complaint. Fubo disclosed Mr.
Orszag’s supplemental declaration one day after filing its amended complaint. And allowing this
supplemental declaration in the PI record will not preyudice Defendants: fact discovery has barely
begun and rebuttal reports are not due until July 10. See Doc. 140 at 1. Defendants can therefore
respond to Mr. Orszag’s supplement in the ordinary course of expert discovery.
2. The Court also should amend the PI discovery schedule to allow Fubo’s experts to
file supplemental expert disclosures on June 24, 2024, for the limited purpose of updating their
declarations to reflect evidence produced during discovery. “A schedule may be modified only
for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Good cause exists here.
In support of its PI motion, Fubo submitted declarations from two experts, Mr. Orszag and
James Trautman. See Docs. 99, 101. Because discovery had not yet begun, these experts
necessarily relied only on the limited publicly available data about the JV; for example, Mr. Orszag
calculated that the JV would have a market share of more than 54% using public data on
Defendants’ sports rights. The parties then submitted a proposed PI discovery schedule that
included post-fact-discovery deadlines for Defendants to serve rebuttal reports and Fubo to serve
reply reports. See Doc. 139-1. The Court largely adopted the parties’ proposed schedule, but
struck reply reports “absent further leave of the Court.” Doc. 140 at 1. As a result, the current
schedule allows Defendants’ experts—but not Fubo’s—to serve reports that incorporate facts and
data from discovery.
As noted, Defendants already have consented to Fubo’s experts serving supplemental
disclosures on June 24 to add citations to documents and testimony from discovery. Fubo’s experts
likewise should be permitted to disclose analysis of the data produced during discovery, because
that will put the parties’ experts on equal footing at the PI hearing—with both sides free to offer
expert testimony on the data relevant to competition in the alleged markets. By contrast,
Defendants’ proposal would result in a one-sided trial presentation in which their experts could
present that data analysis while Fubo’s experts would be prevented from offering analogous
testimony or analysis. See Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. BP Amoco P.L.C., 2003
WL 1618534, at *1 (S.D.N.Y. Mar. 27, 2003) (supplemental affidavit allowed so the court could
“decid[e] the . . . issue presented to it on the most complete factual basis possible”).
On the other hand, permitting Fubo’s experts to submit narrowly tailored supplemental
analyses of data produced in discovery—such as recalculating the JV’s market share using
Defendants’ internal data on sports viewership—would not prejudice Defendants, who can hardly
complain about both sides being given the same opportunity to present expert data analysis. And
Defendants’ rebuttal reports are not due until July 10, providing them ample time to respond. See
Strougo v. BEA Assocs., 188 F. Supp. 2d 373, 380 (S.D.N.Y. 2002) (no prejudice where opposing
party had time with which to depose the expert and submit its own rebuttal reports).
KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C.
The Honorable Margaret M. Garnett
May 14, 2024
Page 4
Respectfully submitted,
/s/ Thomas G. Schultz
Mark C. Hansen (admitted pro hac vice)
Evan T. Leo (admitted pro hac vice)
Kevin J. Miller (admitted pro hac vice)
Joseph S. Hall (SDNY Bar No. JH2612)
Thomas G. Schultz (admitted pro hac vice)
Joshua Hafenbrack (admitted pro hac vice)
Hannah D.C. DePalo (admitted pro hac vice)
KELLOGG, HANSEN, TODD, FIGEL
& FREDERICK, P.L.L.C.
1615 M Street NW
Suite 400
Washington, DC 20036
Tel.: (202) 326-7900
Fax: (202) 326-7999
Email: mhansen@kellogghansen.com
eleo@kellogghansen.com
kmiller@kellogghansen.com
jhall@kellogghansen.com
tschultz@kellogghansen.com
jhafenbrack@kellogghansen.com
hdepalo@kellogghansen.com
Court having considered the parties’ positions as set forth in Dkt. Nos. 160 and 163, Plaintiffs’ motion is hereb
follows:
rst, the Supplemental Expert Declaration of Jonathan Orszag is hereby deemed filed and included in the record f
Preliminary Injunction Motion.
the Preliminary Injunction schedule is hereby amended to allow Plaintiffs’ experts to file supplemental
pert disclosures on June 24, 2024, for the limited purpose described above. Any such disclosures shall be narrow
as described in Plaintiffs' submission to the Court, namely, any such supplemental disclosures must be
limited to analysis of documents and data produced during fact discovery and shall clearly indicate what is
or changed from the initial disclosures (either by submitting the supplement as a separate, limited stand-alone
or by red-lining against the initial disclosures, as illustrative examples).
nally, the Court, having granted in this Order Plaintiffs’ request to file the Supplemental Orszag Declaration,
also GRANTS Plaintiffs’ letter motion on consent to seal that document. See Dkt. No. 159. The Court, havi
the document, finds that good cause exists for sealing and redacting it as proposed by Plaintiffs. The Clet
is respectfully directed to terminate Dkt. No. 159.
ORDERED. Dated May 22, □□
woe □□