Opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-CV-20522-LEIBOWITZ/Elfenbein

VICTOR PORFIRIO BALOA DIAZ, et al.,

Plaintiff,

v.

EDI KORTA LLC, et al.,

Defendant.

_____________________________________/

OMNIBUS ORDER

THIS CAUSE is before the Court on (1) Plaintiffs’ Motion to Exclude the Expert

Testimony of Defendants’ Expert Leslie Zigel on all Non-Damages Topics (“Plaintiffs’ Motion to

Exclude”), ECF No. [82]; (2) Defendants’ Motion to Strike Plaintiffs’ Improper and Untimely

Expert Report by Plaintiffs’ Handwriting Expert (“Defendants’ Motion to Strike Handwriting

Expert”), ECF No. [86]; (3) Defendants’ Motion to Strike Plaintiffs’ Improper and Untimely

Expert Report by Venezuelan Law Expert (“Defendants’ Motion to Strike Venezuelan Law

Expert”), ECF No. [119]; and (4) Defendants’ Request for Judicial Notice (“Defendants’ Motion

for Judicial Notice”), ECF No. [88], (collectively, “the Motions”). The Honorable David S.

Leibowitz referred these motions to me. See ECF No. [102] and ECF No. [120].

I. BACKGROUND

Plaintiffs filed the Complaint on February 9, 2024, alleging claims of copyright

infringement against Defendants pursuant to the Copyright Act, 17 U.S.C. §§ 101, et seq.

(“Copyright Act”). See generally ECF No. [1]. Defendants, thereafter, filed a Motion to Dismiss,

which was referred to me for a report and recommendation, seeking dismissal of all three counts

in the Complaint for failure to state a claim for relief. See ECF No. [15]. Once the Motion to

Dismiss was fully briefed, I recommended that the Complaint be dismissed without prejudice,

giving Plaintiffs the opportunity to file an amended pleading and cure the substantive and

procedural deficiencies in the original Complaint. See ECF No. [29]. Following the entry of the

Order Adopting the Report and Recommendation, Plaintiffs filed their Amended Complaint, which

is their operative pleading. See ECF No. [34] and ECF No. [49].

In the Amended Complaint, Plaintiffs allege that Plaintiff Porfi Baloa “is a Venezuelan

musician, composer, producer[,] and arranger” who owns the “Venezuelan copyright[s]” to the

albums titled “Reclamando Nuestro Espacio[,]” “Persona Ideal[,]” “La Misma Pluma[,]” “Ahora

Mas Que Nunca[,]” “Búscame[,]” and “Sellos De Mi ADN[.]” See ECF No. [49] at ¶¶ 20, 22.

Plaintiffs allege that Defendants infringed upon their copyrights in these works by copying and

incorporating “the musical composition, [] lyrics and[,] [] sound recording[s,]” id., of those works

— without Plaintiffs’ authorization — into infringing music videos that they posted to

Youtube.com, see id. at ¶¶ 22-30. Plaintiffs also allege that Defendants created other, unspecified

infringing “music videos” that copy and incorporate the “sound recordings” of Plaintiffs’ other

copyrighted works; Plaintiffs do not identify which of its copyrighted works Defendants copied

and incorporated into the unspecified “music videos[.]” Id. at ¶ 31.

Additionally, Plaintiffs allege that Defendants have accounts with various online streaming

providers of music, video, and other audiovisual works, including (1) Spotify AB, (2) Apple, Inc.’s

Apple Music, (3) Amazon.com, Inc.’s Amazon Music, (4) Pandora Media, LLC’s Pandora, (5)

Deezer S.A.’s Deezer.com, and (6) iHeartMedia, Inc.’s iHeart.com (hereinafter collectively

referred to as the “Online Streaming Platforms”).1 See id. at ¶¶ 41, 43, 45, 47, 51. Plaintiffs claim

1 “Online Streaming Platforms” also refers to Youtube.com.

that Defendants uploaded infringing works that copy and incorporate Plaintiffs’ copyrighted

musical compositions, lyrics, and sound recordings to the accounts they maintain with the Online

Streaming Platforms. See id. at ¶¶ 42, 44, 46, 48, 50, 52.

Based on these allegations, Plaintiffs raise six claims. Count 1 is for direct copyright

infringement against Korta Records Co., Luis F. Mendoza, and Leonor Mendoza; Count 2 is for

direct copyright infringement against Edi Korta, LLC, Luis F. Mendoza, and Leonor Mendoza;

Count 3 is for contributory copyright infringement against Korta Records Co., Luis F. Mendoza,

and Leonor Mendoza; Count IV is for contributory copyright infringement against Edi Korta, LLC,

Luis F. Mendoza, and Leonor Mendoza; Count V is for vicarious copyright infringement against

Korta Records Co.; and finally, Count VI is for vicarious copyright infringement against Edi Korta

LLC. See generally ECF No. [49]. Korta Records, in turn, filed a Counterclaim against Plaintiffs

asserting three claims: (1) federal trademark infringement in violation of Section 32 of the

Trademark Act of 1946, 15 U.S.C. § 1114 (Count 1); (2) federal unfair competition and false

designation of origin in violation of Section 43(a) of the Trademark Act of 1946, 15 U.S.C.

§ 1125(a) (Count 2); and (3) trademark dilution in violation of Section 495.151 of the Florida

Statutes (Count 3). See ECF No. [56] at 16-20.

After the close of discovery, the Parties filed numerous motions that are the subject of this

Omnibus Order. The first is Plaintiffs’ Motion to Exclude Non-Damages Opinions, which is

directed at striking any opinions by Defendants’ expert, Leslie Zigel, that do not relate to the issue

of damages, arguing that many of his opinions are not true rebuttal opinions and are instead

untimely affirmative opinions. See ECF No. [82]. Despite having ample time to file a Response

in opposition, Defendants have yet to file one and the deadline to do so expired on May 20, 2025.

See ECF No. [108].

Next, Defendants filed two motions seeking to strike Plaintiffs’ experts. The first is

directed at striking Plaintiffs’ handwriting expert, F. Harley Norwitch, because the report was

disclosed after the close of discovery, see ECF No. [86], and the second is directed at striking

Plaintiffs’ expert on Venezuelan law, William Enrique Olivero Perez, because Plaintiffs never put

Defendants and the Court on notice of their intent to raise matters of Venezuelan law and failed to

timely disclose him as an expert witness, see ECF No. [119]. The Parties have since filed their

respective Responses and Replies. See ECF Nos. [96], ECF No. [105], ECF No. [123], and ECF

No. [124].

Finally, Defendants filed their Motion for Judicial Notice, asking the Court to take judicial

notice of specific copyright listings detailing U.S. copyright registrations for three of the six

albums at issue in this case. See ECF No. [88]. Plaintiffs have opposed this request in their

Response, see ECF No. [104], and Defendants have filed their Reply, see ECF No. [110]. All four

Motions are ripe for review.

II. LEGAL STANDARDS

a. Expert Witness Disclosures

“District courts have ‘unquestionable’ authority to control their own dockets.” Smith v.

Psychiatric Sol., Inc., 750 F.3d 1253, 1262 (11th Cir. 2014) (internal citation omitted). “This

authority includes ‘broad discretion in deciding how best to manage the cases before them.’” Id.

(internal citation omitted). Rule 26(a)(2) governing expert disclosures reinforces this principle.

Specifically, subsection (a)(2)(D) requires that “[a] party must make [expert] disclosures at the

times and in the sequence that the court orders.” See Fed. R. Civ. P. 26(a)(2)(D). Subsections

(a)(2)(B) and (C) explain which expert witnesses must provide a written report and which

witnesses need not do so along with the details of what their respective disclosures must include.

See Fed. R. Civ. P. 26(a)(2)(B)-(C). And subsection (a)(2)(D)(ii) contemplates that, absent a

stipulation or court order that provides otherwise, following the disclosure of initial expert reports,

a party may make additional expert disclosures “if the evidence is intended solely to contradict or

rebut evidence on the same subject identified by another party under Rule 26(a)(2)(B) or (C).” See

Fed. R. Civ. P. 26(a)(2)(D)(ii).

“Because the expert witness discovery rules are designed to allow both sides in a case to

prepare their cases adequately and to prevent surprise, compliance with the requirements of Rule

26 is not merely aspirational.” See Reese v. Herbert, 527 F.3d 1253, 1266 (11th Cir. 2008)

(quotation marks omitted). For that reason, “[i]f a party fails to provide information or identify a

witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness

to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially

justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Turning to the substance of the disclosures,

“[a]n expert report must be complete to the point where opposing counsel is not forced to depose

an expert in order to avoid ambush at trial; and moreover must be sufficiently complete so as to

shorten or decrease the need for expert depositions and thus to conserve resources.” Mustafa v.

United States, No. 21-CV-20633, 2022 WL 18023327, at *3 (S.D. Fla. May 16, 2022) (quotation

marks omitted).

Courts in this District routinely strike expert disclosures, reports, and testimony as a

sanction for failure to comply with Rule 26(a). See, e.g., Brown v. NCL (Bahamas) Ltd., 190 F.

Supp. 3d 1136, 1143 (S.D. Fla. 2016) (excluding expert’s opinion that the plaintiff suffered a

traumatic brain injury because the expert disclosure was incomplete and was not timely

supplemented). And the Eleventh Circuit routinely affirms a district court’s decision to strike

expert disclosures, reports, and testimony as a sanction for failure to comply with Rule 26(a). See,

e.g., Reese, 527 F.3d at 1266 (affirming the exclusion of an expert’s affidavit because the party’s

“failure to comply with Rule 26(a) was both unjustified and harmful to the defendants”); Romero

v. Drummond Co., 552 F.3d 1303, 1323 (11th Cir. 2008) (affirming the exclusion of three expert

witnesses because the disclosure reports for the witnesses did not comply with the requirements

of Rule 26(a)(2)(B)); Mitchell v. Ford Motor Co., 318 F. App’x 821, 825 (11th Cir. 2009)

(affirming the grant of a “Motion to Strike the bases in support of” expert testimony that were

“first disclosed during and following the Daubert hearing and not specifically referred to earlier

in the Rule 26(a) report or the deposition”). The reason the Rules permit — and courts impose or

enforce — such significant sanctions for failing to adequately disclose an expert or an expert report

is because the “expert disclosure rule is intended” to “prevent surprise” and “to provide opposing

parties reasonable opportunity to prepare for effective cross examination and perhaps arrange for

expert testimony from other witnesses.” See Reese, 527 F.3d at 1265–66.

b. Application of Foreign Law

“A party who intends to raise an issue about a foreign country’s law must give notice by a

pleading or other writing.” Fed. R. Civ. P. 44.1. “Foreign law is a fact to be pleaded and proved;

and when the contrary is not alleged, the law of the sister state will be assumed to be the same as

Florida law.” Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998); see also Collins v. Collins, 36

So. 2d 417, 417 (1948); Bethell v. Peace, 441 F.2d 495, 497 (5th Cir. 1971) (explaining that “the

party relying on foreign law must plead and prove it” and, if a party fails to make such allegations

in a party’s pleadings or during the litigation as to what the relevant foreign law is, a district court

is entitled to assume it is the same as the forum law).2

2 All decisions of the former Fifth Circuit Court of Appeals handed down as of September 30, 1981 are

“binding as precedent in the Eleventh Circuit.” Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th

Cir. 1981).

Courts in this District have determined that an “other writing” under Rule 44.1 can, for

example, take the form of a written disclosure provided to an opponent that an individual will

provide testimony regarding the laws of another country, see World Fuel Servs., Inc. v. M/V

PARKGRACHT, 489 F. Supp. 3d 1340, 1345 (S.D. Fla. 2020), or a written Rule 44.1 notice filed

on the docket, see De Fernandez v. Seaboard Marine, Ltd., No. 20-CV-25176, 2022 WL 2869730,

at *9 (S.D. Fla. July 21, 2022). Although a party must provide written notice of its intent to rely

on foreign law, if a party intends to use an expert to explain that foreign law, it need not comply

with the timing or disclosure requirements of Rule 26(a)(2). See World Fuel Servs., 489 F. Supp.

3d at 1345 (finding that, because Rule 44.1 applied to matters involving the determination of

foreign law, the traditional expert report requirements of Rule 26(a)(2) did not apply to the

disclosure of a foreign law expert). This is because Rule 44.1 is the operative rule, not Rule

26(a)(2). See BCCI Holdings (Luxembourg), Societe Anonyme v. Khalil, 184 F.R.D. 3, 9 (D.D.C.

1999) (concluding that “for questions of foreign law, Rule 44.1 of the Federal Rules of Civil

Procedure, which permits expert testimony on such questions, controls” instead of Rule 26(a)(2)).

And “[t]he plain text of Rule 44.1 does not require foreign law experts disclosed under Rule 44.1

to comply with Rule 26.” De Fernandez, 2022 WL 2869730, at *9.

c. Judicial Notice

Courts may take judicial notice as a matter of evidence law, but it is “a highly limited

process.” Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997). This is because “the taking of

judicial notice bypasses the safeguards which are involved with the usual process of proving facts

by competent evidence in district court.” Id. Under Federal Rule of Evidence 201(b), district

courts may “take notice of certain facts without formal proof,” but this is only in instances when

“the fact in question is one not subject to reasonable dispute in that it is either (1) generally known

within the territorial jurisdiction of the trial court or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be questioned.’” Id. (quoting

Fed. R. Evid. 201(b)). For instance, courts typically take judicial notice of things, such as scientific

facts (when the sun rises or sets), geography (the boundaries of a state), and political history (the

identity of the president in 1958). Id. Importantly, “courts may [also] take judicial notice of public

records, such as a pleading filed in another court,” for the purpose of establishing what the

documents contain but “not the veracity of their contents.” Navarro v. City of Riviera Beach, 192

F. Supp. 3d 1353, 1364 (S.D. Fla. 2016) (citing Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278

(11th Cir. 1999); Universal Express, Inc. v. U.S. SEC, 177 F. App’x 52, 53 (11th Cir. 2006);

Klopfenstein v. Deutsche Bank Sec., Inc., 592 F. App’x 812, 816 n.5 (11th Cir. 2014) Martin v.

Hogue, No. 11–CV–228–T–33MAP, 2011 WL 2894986, at *2 (M.D. Fla. July 20, 2011)).

III. DISCUSSION

a. Plaintiffs’ Motion to Exclude Non-Damages Opinions (ECF No. [82])

Here, Plaintiffs seek to strike the opinions of Defendants’ expert, Leslie Zigel (“Mr.

Zigel”), that are not true rebuttal opinions, that is, opinions that do not rebut the damages

calculations contained within the report of Plaintiffs’ damages expert, Angel Lopez, Jr. (“Mr.

Lopez”). See generally ECF No. [82]. They argue that Mr. Zigel’s expert report, which was

disclosed on the date rebuttal expert reports were due,3 contains rebuttal damages opinions, but it

also contains untimely affirmative opinions that address the merits of the case. Id. at 2.

Specifically, the report contains opinions involving the legal analysis of Venezuelan contracts,

opinions regarding the joint authorship doctrine, opinions regarding the statute of limitations under

the Copyright Act, and various legal conclusions finding that Plaintiffs’ claims are barred under

3 The Court extended the deadline for the disclosure of rebuttal expert reports to February 25, 2025. See

ECF No. [70]. Mr. Zigel’s report was served on the deadline for such reports.

these theories. Id. at 3. Plaintiffs’ primary basis for striking these opinions is that they are untimely

affirmative expert witness opinions, which should have been disclosed on January 27, 2025 but

were not. Id. at 4; ECF No. [66]. In addition, Plaintiffs argue that, even if the reports are not

excluded as untimely, Mr. Zigel’s opinions must be stricken because (1) he is not an expert on

Venezuelan law, (2) his opinions regarding the recording contract are based on an unreliable

foundation, and (3) his opinions consist of impermissible legal conclusions. Id. at 4-11.

Defendants’ Response was originally due on May 5, 2025. The Parties jointly requested

extensions of time to file their responses to various motions, including this one, and the Court gave

the Parties until May 12, 2025 to do so. See ECF No. [95]. Defendants’ Response is months past

due, and Defendants have yet to file anything responding to this motion. Local Rule 7.1(c)(1)

cautions litigants that the failure to file a response to a motion within fourteen days after service

of the motion “may be deemed sufficient cause for granting the motion by default.” S.D. Fla. L.R.

7.1(c)(1). See James v. Wal-Mart Stores E., LP, No. 18-CV-81325, 2019 WL 124308, at *1 (S.D.

Fla. Jan. 8, 2019) (granting motion to compel “by default due to Plaintiff's failure to respond” as

required by Local Rule 7.1(c)(1)); Arrington v. Hausman, No. 15-CV-62326, 2016 WL 782416,

at *2 (S.D. Fla. Feb. 17, 2016) (“The Court therefore acts well within its discretion by dismissing

this case without prejudice under its inherent power, pursuant to Southern District of Florida Local

Rule 7.1(c), due to Mr. Arrington’s failure to respond to the Defendants’ motions to dismiss.”)

The Court, therefore, grants Plaintiffs’ Motion to Exclude Non-Damages Opinions, ECF No. [82],

by default for Defendants’ failure to respond.

But the Court also grants the requested relief on the merits because Mr. Zigel’s report is

replete with affirmative opinions that were untimely served under the guise of a rebuttal report and

Defendants have not made a showing of substantial justification or harmlessness for their untimely

disclosure. Looking at the record, Plaintiffs timely disclosed the report of Mr. Lopez, a certified

public accountant, who provided a damage calculation “caused by the unauthorized use by

Defendants of Plaintiffs’ sound recordings.” See ECF No. [82-1] at 4. In doing so, Mr. Lopez

reviewed “a report generated from Spotify’s platform showing streams, and related royalties

earned, by various songs owned by Plaintiffs since the songs were uploaded to the platform in

2014 through December 2024.” Id. Mr. Lopez then mathematically computed the monthly

average earned from the master sound recordings during this timeframe and multiplied that by the

number of months since Defendants first started their alleged unauthorized use to determine the

amount of royalties that Defendants received. Id. Mr. Lopez then made similar calculations for

the amount of royalties collected from other streaming platforms, such as Apple Music, Deezer,

YouTube and Pandora, using a 30% market standard and assuming that a distributor receives a

20% commission of the gross royalty amount. Id. at 4-5. Based on these assumptions, Mr. Lopez

calculated Plaintiffs’ damages at $2,673,654.59. Id. at 5.

By contrast, four weeks after the deadline for expert witness disclosures, Defendants

disclosed Mr. Zigel’s “rebuttal” expert report. The Court first notes that report does contain

rebuttal opinions aimed at challenging Mr. Lopez’s report, such as Mr. Zigel’s opinions that “[t]he

royalties [Plaintiffs] claim they are due are easily disproven by the actual accounting statements

showing royalties received by Defendants,” his calculations that “the net receipts received by

Defendants from Believe equal $947,925.24,” and that, at best, “the total amount payable would

be $379,170.10, 40% of the net receipts from Believe.” See ECF No. [82-2] at 16. However, the

report contains numerous affirmative opinions that do not rebut Mr. Lopez’s accounting

calculation. Indeed, the majority of the report that Mr. Zigel, an attorney, prepared reads much

like a legal brief rather than a rebuttal damage calculation. The report provides opinions regarding

the legal impact of a recording agreement on the ownership rights of the recordings at issue, see

ECF No. [82-2] at 7 (“The scope of paragraph 10 is dispositive of the Recording Agreement with

respect to ownership of the Korta Recordings and effectively this entire matter.”), and whether the

recording agreement establishes that the recordings qualify as a work for hire, see ECF No. [82-2]

at 7 (“In U.S. copyright terms, this paragraph meets all the obligations of a work-for-hire

provision.”). The report also contains alternative opinions in the event the recording agreement is

deemed to be invalid and provides opinions regarding Plaintiffs’ Venezuelan copyright

registrations and their impact on the legal issues in the case. See ECF No. [82-2] at 8 (“Clearly,

the Plaintiff is in breach of the Recording Agreement by virtue of the fact that he fraudulently

registered copyrights for materials, nearly twenty years following the commercial release of the

Korta Recordings that he did not own according to the Recording Agreement and the pre-existing

valid U.S. Copyright Registrations.”). Mr. Zigel provides alternative opinions under the joint

authorship doctrine, explaining that “even if the Recording Agreement and the U.S. Copyright

Registrations were deemed to be invalid, the Defendants nonetheless still had statutory exploitation

rights in the Korta Recordings under the Joint Authorship principle of the Copyright Act.” See

ECF No. [82-2] at 10. Finally, Mr. Zigel also provides legal opinions as to whether the statute of

limitations has extinguished Plaintiffs’ claims for relief in this action. See ECF No. [82-2] at 12

(“Thus, the assertions in Plaintiffs’ Expert Report are conclusive proof that the statute of

limitations bars the current copyright infringement suit.”). The foregoing legal opinions all seek

to foreclose Plaintiffs’ claims from a liability perspective.4 They do not seek to refute Mr. Lopez’s

4 The Court is striking the opinions because Defendants failed to oppose the Motion to Exclude and the

opinions were untimely affirmative opinions. Therefore, the Court need not separately analyze Plaintiffs’

alternative argument that Mr. Zigel’s opinions lack a proper foundation and are impermissible legal

conclusions under Federal Rule of Evidence 702 and that Mr. Zigel is not qualified to testify about matters

under Venezuelan law.

damage calculation. If Defendants wanted an expert to provide affirmative opinions bearing on

the issue of liability, it was incumbent on them to timely do so, but they cannot cloak otherwise

untimely affirmative opinions as “rebuttal” opinions. See All-Tag Corp. v. Checkpoint Sys., Inc.,

408 F. Supp. 3d 1347, 1353 (S.D. Fla. 2019) (striking untimely affirmative opinions within rebuttal

report, finding that the plaintiff “had plenty of time to gather experts and provide their reports in a

timely manner.”). For these reasons, the Court finds that the non-damages opinions within Mr.

Zigel’s report are untimely and improperly designated as “rebuttal” and are thus subject to being

stricken in accordance with Rule 37(c)(1).

Given the untimely disclosures, the Court must next consider whether the opinions should

be stricken. When a party fails to comply with Rule 26(a), “the party is not allowed to use that

information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure

was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “‘[T]he sanction of exclusion

is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a)

was either justified or harmless.’” Dyett v. North Broward Hosp. Dist., No. 03-CV-60804, 2004

WL 5320630, at *2 (S.D. Fla. Jan. 21, 2004) (quoting Salgado v. General Motors Corp., 150 F.3d

735, 742 (7th Cir.1998)). “Generally, when assessing whether there was substantial justification

for the failure to disclose or whether the failure to disclose was harmless, courts consider four

factors: (1) the importance of the excluded testimony; (2) the explanation of the party for its failure

to comply with the required disclosure; (3) the potential prejudice that would arise from allowing

the testimony; and (4) the availability of a continuance to cure such prejudice.” Managed Care

Sols., Inc. v. Essent Healthcare, Inc., No. 09-CV-60351, 2010 WL 1837724, at *4 (S.D. Fla. May

3, 2010) (quoting Warner v. Ventures Health Care of Gainesville, Inc., No. 00-CV-308-Oc-10GRJ,

2001 WL 36098008, *1 (M.D. Fla. Aug. 1, 2001)).

Here, however, Defendants have not responded to the Motion to Exclude and have not,

therefore, provided the Court with any information to analyze each of these factors. While the

Court can make assumptions about the importance of the excluded testimony, the Court will not

co-counsel Defendants and make arguments on their behalf. Similarly, the Court has no

explanation as to why Defendants failed to disclose Mr. Zigel’s opinions by the expert witness

disclosure deadline or why the failure to timely disclose these opinions would not be prejudicial

to Plaintiffs. Because Rule 26(a)(2)(B) places the duty on the party seeking to introduce the expert

testimony, the Court sees no basis to find that Defendants had any substantial justification for this

untimely disclosure or that the belated disclosure of affirmative opinions was harmless. See United

States v. Batchelor–Robjohns, No. 03–CV-20167, 2005 WL 1761429, at *3 (S.D. Fla. June 3,

2005). Finding no substantial justification or lack of prejudice, Plaintiffs’ Motion to Exclude Non-

Damages Opinions, ECF No. [82], is GRANTED and the opinions are STRICKEN. Specifically,

the Court strikes Mr. Zigel’s opinions in the sections entitled “Legal Distinction between Sound

Recordings and Music Publishing,” “Sound Recording Ownership and Control,” “Royalty

Obligations,” “Joint Ownership Doctrine,” and “Copyright Act Statute of Limitations.” However,

Mr. Zigel’s true rebuttal opinions, found in the section entitled “Rebuttal of Plaintiff’s Expert

Report,” remain intact.

b. Defendants’ Motion to Strike Handwriting Expert (ECF No. [86])

Defendants, in turn, move to strike Plaintiffs’ handwriting expert, F. Harley Norwitch

(“Mr. Norwitch”), arguing that this expert and his report were untimely disclosed and that

Plaintiffs cannot show any substantial justification for the belated disclosure or any harmlessness.

See ECF No. [86]. In particular, Defendants explain that the deadline for expert witness

disclosures was on January 27, 2025; yet, Plaintiffs waited six weeks (until March 13, 2025) to

amend their Initial Disclosures and disclose an unidentified “expert regarding signature on

documents produced by Defendants” and then waited three more weeks and until after the close

of discovery (on April 7, 2025) to produce Mr. Norwitch’s report. See ECF No. [86] at 2.

Importantly, Mr. Norwitch provides opinions regarding the signatures on two documents — a

Venezuelan copyright application that Defendants produced in September 2024 and a recording

agreement that Defendants produced on January 24, 2025, three days before the expert witness

disclosure deadline. See ECF Nos. [86] at 3-4 and [86-1] at 4.

Plaintiffs, in turn, argue that their belated disclosure was substantially justified because

they had requested all documents exchanged between Plaintiffs and Defendants as early as July

2024, but Defendants did not produce the recording agreement when due in August 2024 or with

their Initial Disclosures and instead waited until the eve of the deadline for expert witness

disclosures to produce it. See ECF No. [96] at 2. According to Plaintiffs, once they received the

recording agreement, they made an inquiry in Venezuela to determine if the recording agreement

was publicly recorded there and then Plaintiffs investigated potential handwriting experts, which

explains why Plaintiffs’ Amended Initial Disclosures served on March 13, 2025 did not identify a

specific expert. See ECF No. [96] at 2-3. Plaintiffs also argue that the belated disclosure would

not prejudice Defendants as they can still depose Mr. Norwitch if the Court reopens discovery for

this purpose but that striking him as an expert would cause Plaintiffs significant prejudice. See

ECF No. [96] at 6-7.

Finally, in their Reply, Defendants clarify some factual allegations in Plaintiffs’ Response,

highlighting that Plaintiffs could have requested an extension for expert disclosures based on the

timing of the recording agreement’s production but did not. See ECF No. [105] at 1-2. They also

argue that the importance of Mr. Norwitch’s testimony does not outweigh the delay and prejudice

the untimely disclosure has caused them, that Plaintiffs failed to present a substantial justification,

and that they will suffer real prejudice from the late disclosure. See ECF No. [105].

The Court starts its analysis with the undisputed fact that Mr. Norwitch’s expert report,

served on April 7, 2025, was not served by the expert witness disclosure deadline. Although

Plaintiffs claim “the relevant discovery deadline was March 28, 2025,” that is not the relevant

deadline. The relevant deadline here was January 27, 2025 — the latest date to serve expert

witness summaries or reports. Both parties refer to Mr. Norwitch as an expert, subjecting him to

the expert witness disclosure requirements under Judge Leibowitz’s Scheduling Order, ECF No.

[66]. Indeed, Plaintiffs repeatedly refer to Mr. Norwitch as an “expert” in their Response. See

ECF No. [96] at 3 (“During this time, the undersigned also investigated hand-writing experts. On

March 13, 2025, Plaintiffs provided their Amended Initial Disclosures, listing Plaintiffs’ expert

regarding signature on documents produced by Defendants. . . Plaintiff’s handwriting expert

thereafter confirmed that the first signature . . .”) (emphasis added). Accordingly, Mr. Norwitch’s

report was due on January 27, 2025, but it was not served until 11 weeks later and after the close

of discovery.

With these facts in mind, the Court must consider whether Plaintiffs can still call Mr.

Norwitch as a witness notwithstanding their failure to comply with the expert witness disclosure

deadline. As explained above, courts must automatically exclude such evidence “unless the

sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.’” Dyett,

2004 WL 5320630 at *2; Fed. R. Civ. P. 37(c)(1). When making this decision, courts consider

various factors, such as “the importance of the excluded testimony,” the explanation for the

offending party’s failure to comply with the disclosure, and “the potential prejudice that would

arise from allowing the testimony.” Managed Care Sols., 2010 WL 1837724, at *4. The party

seeking to introduce the expert testimony under Rule 26(a)(2)(B) bears the burden to show

substantial justification for the untimely disclosure and harmlessness. See Batchelor–Robjohns,

2005 WL 1761429 at *3.

Starting with the importance of the excluded testimony, Plaintiffs argue that Mr.

Norwitch’s report “is vital to the case.” See ECF [96] at 5. Although Plaintiffs do not elaborate

much on this point, the record reveals that Defendants have moved for summary judgment on the

basis of the recording agreement, arguing it is dispositive of Plaintiffs’ claims. This factor,

therefore, does not weigh in favor of striking Mr. Norwitch as an expert witness.

Turning next to Plaintiffs’ explanation for the untimely disclosure, they point the finger at

Defendants for their belated production of the recording agreement three days before the expert

witness disclosure deadline. However, this explanation fails to explain numerous shortcomings

by Plaintiffs. It does not explain why Plaintiffs failed to seek an extension of time for the expert

disclosure deadline upon their receipt of the recording agreement and instead waited 2.5 months

and until after the close of discovery to produce Mr. Norwitch’s report. The Parties requested

other extensions of the pre-trial deadlines, which Judge Leibowitz granted, such as the original

extension of the expert witness disclosure deadline, an extension of the discovery deadline, and an

extension for the filing of pretrial motions. See ECF Nos. [65], [66], [72], [74], [80], and [81].

Yet Plaintiffs never sought an extension of the expert witness disclosure deadline based on the

production of the recording agreement.

Likewise, Plaintiffs’ Response does not explain why they failed to retain a handwriting

expert sooner when they received one of the two documents on which Mr. Norwitch opines (the

copyright application) in September 2024 — about four months before the expert disclosure

deadline. Plaintiffs also do not explain why they waited to retain a handwriting expert until after

they determined whether the recording agreement was publicly filed in Venezuela even though

Plaintiff Porfi Baloa (“Baloa”) immediately advised his counsel that the signature on the recording

agreement was not his.5 The inquiry about the public filing of the recording agreement was not a

precursor to retaining a handwriting expert. That is, Plaintiffs’ challenge to his own signature on

the recording agreement does not hinge on whether that agreement was publicly filed in Venezuela.

Plaintiffs could have engaged a handwriting expert as soon as Baloa said the signature was not

authentic. Relatedly, Plaintiffs’ Response does not explain why they waited until March 19, 2025

— eight weeks after they received the recording agreement and five months after they received the

copyright application — to provide Mr. Norwitch with the two documents for his expert

examination and opinion. See ECF No. [86-1] at 4.

The Court notes that, as part of their substantial justification argument, Plaintiffs also fault

Defendants for not producing a translated version of the recording agreement. This argument is

likewise unconvincing. There is no requirement that a party translate documents they produce in

discovery into English. And even if that were a requirement, Mr. Norwitch was not interpreting

the language within the document; he was analyzing Baloa’s signature on the document.

Regardless of whether the language in the recording agreement is in English or Spanish, the

signature remains the same. See ECF No. [86-1] at 11. Given the foregoing, the Court concludes

that the belated disclosure was not substantially justified.

The Court next addresses whether the untimely disclosure was harmless. In their Response,

Plaintiffs downplay this issue and suggest that Defendants have ample time to depose Mr.

Norwitch and retain a rebuttal expert, if the Court so allows. If the harmlessness analysis were as

5 According to the Response, Plaintiffs’ counsel conferred with Baloa about the recording agreement as

soon as he learned of it and Baloa advised that he “did not recognize the document, nor the signature on the

document that purported to be his signature.” See ECF No. [96] at 2.

simple as Plaintiffs suggest, then the deadlines in the Scheduling Order would be rendered

meaningless. With such a mindset, parties could ignore disclosure deadlines, disclose witnesses

or experts after the close of discovery, and then simply point to the possibility that the Court can

reopen discovery and allow depositions outside of the discovery period as evidence of

harmlessness. However, the deadlines in the “scheduling order set the expectations of the parties

and the Court during the pretrial process, [so] such orders ‘should not be ignored blithely nor trifled

with, without some peril or consequence.’” See United States v. Marder, 318 F.R.D. 186, 190

(S.D. Fla. 2016) (quoting Hudson v. I.R.S., No. 03-C—172(TJM/RF), 2007 WL 2295048, at *10

(N.D.N.Y. Mar. 27, 2007)). To be sure, following “deadlines is an essential part of lawyering.”

Id. at 194. “‘We live in a world of deadlines. If we’re late for the start of the game or the movie,

or late for the departure of the plane or the train, things go forward without us. The practice of law

is no exception. A good judge sets deadlines, and the judge has a right to assume that deadlines

will be honored.’” Id. (quoting Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir.1996)).

Let there be no doubt that the Court’s expert disclosure deadlines have meaning and Plaintiffs run

the risk of exclusion of evidence when they ignore them.

Looking at the record, by the time Plaintiffs disclosed Mr. Norwitch’s report, discovery

(even the extended discovery deadline) had closed. This prevented Defendants from (1) retaining

a rebuttal handwriting expert, if they so chose, (2) propounding any written discovery to Plaintiffs

regarding Mr. Norwitch, (3) deposing Mr. Norwitch, (4) subpoenaing a copy of his expert file, and

(5) filing any appropriate Daubert motions aimed at excluding or narrowing his testimony. In light

of the foregoing, the Court concludes that Plaintiffs’ belated disclosure and use of Mr. Norwitch’s

expert testimony to dispute the authenticity of Baloa’s signature on a key piece of evidence for

Defendants is far from harmless.6

Upon review of the factors, Plaintiffs have proven neither a substantial justification for the

11-week delay in the disclosure of Mr. Norwitch’s report nor harmlessness to Defendants.

Accordingly, Defendants’ Motion to Strike Handwriting Expert, ECF No. [86], is GRANTED.

c. Defendants’ Motion to Strike Venezuelan Law Expert (ECF No. [119])

Next, Defendants move to strike the declaration of Venezuelan attorney, William Enrique

Olivero Perez (“Perez”), which Plaintiffs attached as Exhibit 4 to their Statement of Material Facts

in opposition to Defendants’ Motion for Summary Judgment. See generally ECF No. [119].

Perez’s declaration explains various aspects of Venezuelan law, such as Venezuelan contract

interpretation and copyright law, including matters involving copyright ownership. See ECF No.

[100-4]. Relying on Federal Rule of Civil Procedure 26(a)(2), Defendants originally sought to

strike the declaration on the basis that “Plaintiffs never disclosed Perez as an expert or opinion

witness,” “such a report was improperly submitted as an attached declaration to Plaintiffs’ OSF

and well past the court’s deadline to submit expert reports,” and “because Defendants would be

greatly prejudiced if the Court were to consider [Perez’s declaration] without Defendants being

able to depose him and or submit an opposing expert report.” See ECF No. [119] at 3.

In their Response, Plaintiffs argued that (1) Perez’s declaration on foreign law should not

be stricken because it does not qualify as expert witness testimony under Rule 26(a)(2); (2)

Defendants, not Plaintiffs, injected the issue of Venezuelan law into the litigation when they

belatedly disclosed their intention to rely on the recording agreement (a Venezuelan contract); and

6 Although Plaintiffs argue they will be prejudiced if Mr. Norwitch is not allowed to testify, that is not one

of the factors to be considered here. See ECF No. [96] at 7. Rule 37(c)(2) requires exclusion of the evidence

unless the untimely disclosure is substantially justified or harmless. This exclusionary rule does not contain

an exception when the offending party establishes that the exclusion will prejudice it. Plaintiffs’ argument

turns the rule on its head.

(3) under Rule 44.1, courts may determine a matter of foreign law either through the evidence the

Parties proffer and/or through their own resources. See ECF No. [123] at 1-2.

Conceding their arguments under Rule 26(a)(2), see ECF No. [124] at 2 (“Defendants

acknowledge the exceptions to Rule 26 for Rule 44.1 expert opinions on foreign law”), in their

Reply, Defendants pivoted and sought to strike the declaration on different grounds7 — on the

basis of an untimely and prejudicial disclosure under Rule 44.1, see generally ECF No. [124].

Given Defendants’ concession that Rule 44.1 governs this issue, instead of Rule 26(a)(2) as

originally argued,8 the Court focuses its analysis on the impact of Rule 44.1 on Perez’s declaration.

Starting with its text, Rule 44.1 provides as follows:

A party who intends to raise an issue about a foreign country’s law must give

notice by a pleading or other writing. In determining foreign law, the court may

consider any relevant material or source, including testimony, whether or not

submitted by a party or admissible under the Federal Rules of Evidence. The

court’s determination must be treated as a ruling on a question of law.

Fed. R. Civ. P. 44.1. The purpose of requiring parties to give notice of their intent to raise an issue

of foreign law is “[t]o avoid unfair surprise.” See Fed. R. Civ. P. 44.1 (1966 advisory committee

notes) (“To avoid unfair surprise, the first sentence of the new rule requires that a party who intends

to raise an issue of foreign law shall give notice thereof.”); Grice v. A/S J. Ludwig Mowinckels,

7 Defendants’ Motion to Strike only raised their Rule 44.1 argument in a footnote as they primarily relied

on Rule 26(a)(2). However, Plaintiffs discussed Rule 44.1 at length in their Response, making Defendants’

arguments appropriate in their Reply.

8 Even if Defendants persisted in their argument that Rule 26(a)(2) is the operative rule governing matters

of foreign law, that would be incorrect. The timing and disclosure requirements of Rule 26(a)(2) do not

apply when a party intends to raise an issue of foreign law. See World Fuel Servs., 489 F. Supp. 3d at 1345

(finding that the traditional expert report requirements of Rule 26(a)(2) do not apply to the disclosure of a

foreign law expert); BCCI Holdings, 184 F.R.D. at 9 (explaining that Rule 44.1, not Rule 26(a)(2), controls

questions of foreign law); De Fernandez, 2022 WL 2869730, at *9 (“The plain text of Rule 44.1 does not

require foreign law experts disclosed under Rule 44.1 to comply with Rule 26.”).

477 F. Supp. 365, 367 (S.D. Ala. 1979) (explaining the Rule 44.1 notice provision exists “simply

to avoid surprise”).

Rule 44.1 does not have a specific timing provision as to when a party is required to give

notice of its intent to raise an issue of foreign law. See generally Fed. R. Civ. P. 44.1. As the

advisory committee notes recognize, “in some cases the issue may not become apparent until the

trial and notice then given may still be reasonable.” Fed. R. Civ. P. 44.1 (1966 advisory committee

notes). In deciding whether a party has reasonably given notice, courts may consider “the stage

which the case had reached at the time of the notice, the reason proffered by the party for his failure

to give earlier notice, and the importance to the case as a whole of the issue of foreign law sought

to be raised.” Id. And, “[i]f notice is given by one party it need not be repeated by any other and

serves as a basis for presentation of material on the foreign law by all parties.” Id.

Here, all Parties — Defendants included — ask the Court to apply Venezuelan law to

certain issues in the case and both sides waited until after the close of discovery to do so. Despite

this, both sides pass the buck to one another, arguing that the other should have given notice of

foreign law. Plaintiffs blame Defendants for waiting to disclose the Venezuelan contract until the

eve of expert witness disclosures, arguing that Defendants knew they intended to raise this

contract, which requires the application of Venezuelan law, as a defense from the outset of the

case. Defendants, on the other hand, argue that Plaintiffs should have known about their intention

to apply foreign law from the inception of the case when they first raised matters involving

Venezuelan copyrights. In fact, Defendants complain that “the cornerstone of both Perez’s

declaration and this case” “is the ownership of the copyrights at issue,” see ECF No. [124] at 7,

and that “allowing Plaintiffs to introduce Venezuelan law at this juncture of the litigation would

be highly prejudicial” to Defendants, requiring that Perez’s declaration be stricken, see ECF No.

[124] at 8.

Despite Defendants’ strenuous arguments that Plaintiffs’ notice of Venezuelan law through

Perez’s declaration was tardy and unreasonable, Defendants themselves ask the Court to apply

Venezuelan law to the copyright issues in the case. The summary judgment record reveals it was

Defendants who first raised the issue of Venezuelan foreign law, not Plaintiffs. Defendants’

Motion for Summary Judgment repeatedly asks the Court to apply Venezuelan law to the question

of copyright ownership — the very issue Defendants complain that Plaintiffs improperly raised in

Perez’s declaration in response to that motion. For example, Defendants argue that “under the

Venezuelan Copyright Law, Korta Records is also considered, at the least, a joint author” and

“federal courts have held that since the alleged copyright registrations are from Venezuela, then

Venezuelan law ‘determines the ownership and essential nature of the copyrights alleged to have

been infringed.” See ECF No. [83] at 9. Similarly, Defendants cite to U.S. case law interpreting

Venezuelan law to argue that “[u]nder Venezuelan Copyright Law (‘VCL’), ‘copyright ownership

initially vests in a work’s actual creator’ and ‘the copyright in works of joint authorship shall

belong jointly to the coauthors.” See ECF No. [83] at 10 (citations omitted). Defendants then

elaborate on their position, directing the Court in a footnote to “Law on copyright, Venezuela

(Bolivarian Republic of), WIPO Lex. (n.d.).

https://www.wipo.int./wipolex/en/legislation/details/3989.” See ECF No. [83] at 10, n.5. At the

conclusion of their argument under Venezuelan law, Defendants explain that “the Venezuelan

copyright registrations themselves do not override the original author (or authors in this case) as

deemed by the [Venezuelan Copyright Law]” and “this presumption is fully rebutted by the facts

discovered herein defining Korta Records as a joint author of the 6 LPS at issue under the

[Venezuelan Copyright Law].” See ECF No. [83] at 11.

Given that Defendants raised the issue of Venezuelan law for the first time in their own

Motion for Summary Judgment and Plaintiffs then responded to it with Perez’s declaration, the

Parties’ accusations as to who should have raised this issue earlier are confounding, at best. Both

sides agree that Venezuelan law is at issue and both sides seek to apply it to issues in this case. As

the advisory committee notes to Rule 44.1 explain, when one party gives notice of its intent to

raise an issue of foreign law, “it need not be repeated by any other and serves as a basis for

presentation of material on the foreign law by all parties.” Fed. R. Civ. P. 44.1 (1966 advisory

committee notes). Thus, once Defendants raised these issues on summary judgment, Plaintiffs

were not required to give notice of their intention to likewise raise issues of Venezuelan law. And

Defendants certainly cannot argue — at least not credibly argue — that Perez’s declaration on

Venezuelan caught them by surprise and, therefore, prejudiced them when they injected issues of

Venezuelan law on summary judgment.

Although Defendants could have supported their summary judgment arguments with their

own declarations from an expert on Venezuelan law, they chose not do so. Instead, they chose to

rely on federal case law interpreting Venezuelan law. Defendants’ strategic decision on how to

brief and present matters of Venezuelan copyright law on summary judgment does not constrain

Plaintiffs — or this Court — from considering other sources of foreign law, such as the proffer of

such law in Perez’s declaration or the Court’s resort to its own research and resources on

Venezuelan law. See Fed. R. Civ. P. 44.1 (“In determining foreign law, the court may consider

any relevant material or source, including testimony, whether or not submitted by a party or

admissible under the Federal Rules of Evidence.”). For the foregoing reasons, the Court finds that,

under Rule 44.1, there is no basis on which to strike Perez’s declaration. Accordingly, Defendants’

Motion to Strike Venezuelan Law Expert, ECF No. [119], is DENIED.

d. Defendants’ Motion for Judicial Notice (ECF No. [88])

Finally, Defendants ask the Court to take judicial notice of three copyright registrations

from the public catalog of the U.S. Copyright Office, consisting of registrations for the sounds

recordings of “Persona Ideal,” “La Misma Pluma,” and “Reclamando Nuestro Espacio.” See ECF

Nos. [88] and [88-1]. Plaintiffs, for their part, object to the Court taking judicial notice of these

registrations from the public catalog, arguing that these are not certificates of copyright

registrations and the screenshots from the public catalog are not appropriately the subject of

judicial notice, that Defendants could have and should have obtained certified copies of the

certificates of registration and the specimen of the sounds recording provided to the U.S. Copyright

Office, that the entities that purportedly registered the copyrights were not in existence at the time

of the registrations, and that the cases on which Defendants rely to support judicial notice only

allow for such notice in the context of a motion to dismiss. See ECF No. [104].

As explained above, courts may take judicial notice of certain facts “as a matter of evidence

law,” but it is “a highly limited process.” Shahar, 120 F.3d at 214. Federal Rule of Evidence

201(b) allows district courts to “take notice of certain facts without formal proof” when “the fact

in question is one not subject to reasonable dispute in that it is either (1) generally known within

the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be questioned.’” Id. (quoting Fed. R. Evid.

201(b)). Public records are among the type of documents of which courts may take judicial notice,

but this is for the purpose of establishing what the documents contain and “not the veracity of their

contents.” Navarro, 192 F. Supp. 3d at 1364.

Applying these principles to the copyright context, courts have accepted entries from the

U.S. Copyright Office’s Public Records System to confirm a litigant’s copyrights. See Nationwide

Van Lines, Inc. v. Transworld Movers Inc., 853 F. App’x 604, 606 (11th Cir. 2021) (concluding

that district could take “judicial notice of a public record from the registry of the United States

Patent and Trademark Office” to resolve “who owned the mark.”); Brooks-Ngwenya v.

Indianapolis Pub. Sch., 564 F.3d 804, 808 (7th Cir. 2009)(explaining that the district court could

have taken judicial notice of the fact that the U.S. Copyright Office renewed an application, citing

to http://cocatalog.loc.); Beckman v. Regina Caeli, Inc., 752 F. Supp. 3d 1346, 1375 (N.D. Ga.

2024) (“The Court takes judicial notice that Kari’s copyright registrations, bearing the same

registration numbers, appear in the Copyright Office’s online public catalog.”); Sternbaum v.

Refinery Lab, LLC, No. 22-CV-22002, 2022 WL 16745340, at *2, n.1 (S.D. Fla. Nov. 7, 2022)

(“The Court takes judicial notice of the publicly recorded registration of the copyright which was

recorded on September 24, 2020, before Defendant allegedly used Plaintiff’s work on February

11, 2021. See Registration Record VA0002219754, Copyright Public Records System,

https://publicrecords.copyright.gov/detailed-record/31882933 (last visited Nov. 3, 2022).”); see

also Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d Cir. 2005)

(finding the district court did not err in taking judicial notice of unauthenticated copies of

Microsoft’s copyright registrations on summary judgment because the registrations were

“published in the Copyright Office’s registry”).

Here, Plaintiffs argue that the information from the public catalog of the U.S. Copyright

Office is insufficient because Defendants must provide formal proof of their copyright

registrations (i.e. the certified copies of the copyright registrations). However, that would defeat

the purpose of Rule 201(b), which allows courts to “take notice of certain facts without formal

proof” as long as “the fact in question is one not subject to reasonable dispute.” Shahar, 120 F.3d

at 214. Defendants’ submission of the three registrations from the public catalog of the U.S.

Copyright Office is the type of informal proof courts can take judicial notice of because such

information is a matter of public record and the accuracy of such information cannot be questioned.

See Nationwide Van Lines, 853 F. App’x at 606; Brooks-Ngwenya, 564 F.3d at 808; Beckman, 752

F. Supp. 3d at 1375; Sternbaum, 2022 WL 16745340, at *2, n.1; Island Software, 413 F.3d at 261.

And contrary to Plaintiffs’ argument, judicial notice of these copyright registrations is not limited

to the resolution of motions to dismiss. Rule 201(b) is a rule of evidence that applies in the context

of summary judgment and trial as well as a motion to dismiss. See Shahar, 120 F.3d at 214

(explaining court may take judicial notice of facts “as a matter of evidence law”); Nationwide Van

Lines, 853 F. App’x at 606 (finding no error in district court taking judicial on motion to dismiss);

Island Software, 413 F.3d at 261 (finding no error in district court taking judicial notice in

connection with motion for summary judgment); Sternbaum, 2022 WL 16745340 at *2 n.1 (taking

judicial notice in the context of motion for default judgment).

Accordingly, the Court takes judicial notice of the publicly recorded registration of the

copyright for the following sound recordings with the U.S. Copyright Office:

1. “Persona Ideal,” which was registered on June 26, 1997. See Registration Record

SR0000237029, Copyright Public Records System,

https://publicrecords.copyright.gov/detailed-record/voyager_12963562 (last visited

Dec. 8, 2025);

2. “La Misma Pluma,” which was registered on February 25, 1999. See Registration

Record SR0000261667, Copyright Public Records System,

https://publicrecords.copyright.gov/detailed-record/voyager_12987903 (last visited

CASE NO. 24-CV-20522-LEIBOWITZ/Elfenbein

Dec. 8, 2025); and

3. “Reclamando Nuestro Espacio,” which was registered on February 29, 1996. See

Registration Record SR0000217389, Copyright Public Records System,

https://publicrecords.copyright.gov/detailed-record/voyager_12943972 (last visited

Dec. 8, 2025).

IV. CONCLUSION

For the foregoing reasons, the Court ORDERS as follows:

1. Plaintiffs’ Motion to Exclude the Expert Testimony of Defendants’ Expert Leslie Zigel on

all Non-Damages Topics, ECF No. [82], is GRANTED. Mr. Zigel’s opinions in the

sections entitled “Legal Distinction between Sound Recordings and Music Publishing,”

“Sound Recording Ownership and Control,” “Royalty Obligations,” “Joint Ownership

Doctrine,” and “Copyright Act Statute of Limitations” are STRICKEN.

2. Defendants’ Motion to Strike Plaintiffs’ Improper and Untimely Expert Report by

Plaintiffs’ Handwriting Expert, ECF No. [86], is GRANTED;

3. Defendants’ Motion to Strike Plaintiffs’ Improper and Untimely Expert Report on

Venezuelan Law, ECF No. [119], is DENIED; and

4. Defendants’ Request for Judicial Notice, ECF No. [88], is GRANTED.

DONE and ORDERED in Chambers in Miami, Florida on December 10, 2025.

= fn i

MARTY FULGUEIRA ELFENBEIN

UNITED STATES MAGISTRATE JUDGE

ce: All Counsel of Record

27