Opinion

Hall v. Thomas

753 F. Supp. 2d 1113
84 Fed. R. Serv. 98
2010 U.S. Dist. LEXIS 129178
2010 WL 4881753

Court: District Court, N.D. Alabama
Filed: Nov 29, 2010
Status: Published
Author: Smith
On the bench: Lynwood Smith
Cited by: 5 cases
Authority: More cited than 49.1%

“Dr. Borjas’s own academic writing has emphasized the existence of inter-industry wage differentials within the manufacturing sectors, and posits multiple reasons why these differentials exist.”

How later courts described this case

“Dr. Borjas’s own academic writing has emphasized the existence of inter-industry wage differentials within the manufacturing sectors, and posits multiple reasons why these differentials exist.”
“The plain language reading of ‘harbor’ to require provision of shelter or refuge, or the taking of active steps to prevent authorities from discovering that the employee is unauthorized or illegally remaining in the country, should control.”

Written by the judges who cited it.

The opinion

MEMORANDUM OPINION AND ORDER

LYNWOOD SMITH, District Judge.

Plaintiffs, Jennifer Hall and Jose Rocha, formerly worked as hourly-wage employees in the Russellville, Alabama poultry processing plant originally owned by Gold Kist, Inc., but subsequently acquired by Pilgrim’s Pride Corporation.

More than three years ago, plaintiff Jennifer Hall commenced this suit as a putative class action, alleging that, over the four years preceding the date of her complaint, defendants, Phyllis Thomas and Gloria Fisher, conspired “with their fellow Gold Kist and Pilgrim’s Pride facility human resources ... personnel” at several named and unnamed facilities in multiple locations across the country

for the purpose of “depressing] the Class’ wages by knowingly employing large numbers of illegal immigrants ....”

Plaintiffs’ claims are based upon the Racketeer Influenced and Corrupt Organizations Act of 1970, 18 U.S.C. §§ 1961-1968 (“RICO”).

In addition to the criminal sanctions provided by RICO,

see

18 U.S.C. § 1963 (a),

Congress declared that "[a]ny

*1119

person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains...." 18 U.S.C. § 1964 (c). Section 1962 makes it illegal to participate in a RICO "enterprise" that engages in a "pattern of racketeering activities," or to "conspire" to do so. 18 U.S.C. § 1962 (c)-(d);

see also Edwards,

602 F.3d at 1292-94, 1297-1300 (interpreting these provisions in the RICO context). “RICO claimants ... must [also] show (1) the requisite injury to ‘business or property,’ and (2) that such injury was ‘by reason of the substantive RICO violation.”

Williams,

465 F.3d at 1283 . Plaintiffs’ theory of damages is that defendants’ alleged hiring and/or harboring depressed their wages below what they otherwise would have been.

This action is currently before the court on five motions: (1) defendants’ motion for summary judgment;

(2) defendants’ motion to exclude the testimony of Dr. George J. Borjas, plaintiffs’ expert witness;

(3) defendants’ motion to exclude the testimony of James M. Johnston, another of plaintiffs’ expert witnesses;

(4) plaintiffs’ petition for further discovery pursuant to Federal Rule of Civil Procedure 56(f);

and (5) plaintiffs’ motion to amend the scheduling order.

*1120

I. BACKGROUND

Because the disposition of the motions before this court and, ultimately, the action itself, turns purely on whether plaintiffs have sustained their burden of proving the reliability of their experts, and of providing evidence giving rise to a genuine issue of material fact regarding the technical requirements of the statutory provisions under which they brought suit, recitation of the factual narrative would be both unnecessary and largely unhelpful. Accordingly, the court will dispense with the usual statement of disputed and undisputed facts and address those few facts that are relevant to the substantive determinations in the analysis that follows.

A. Procedural History of the Case

Before delving into the merits of the motions and the substance of the contested testimony, however, it behooves the court to untangle the tortuous procedural history that has placed this case in its present and, as plaintiffs correctly put it, “unique procedural posture.”

A great deal of water has gone under the bridge since this case was filed. That necessarily must factor into whether this court should countenance plaintiffs’ request for further discovery, to permit their damages expert to produce the evidence of proximate causation of damages to business or property necessary to establish their

prima facie

case.

Plaintiffs filed their initial complaint, putatively on behalf of a nationwide class, on March 16, 2007.

The complaint asserted that current and former Human Resources personnel at Gold Kist and Pilgrim’s Pride chicken processing facilities across the country engaged in a nationwide conspiracy to knowingly employ illegal immigrants in order to depress the wages of native unskilled laborers, like plaintiffs.

In sum and substance, these are the very same factual allegations plaintiffs asserted in their Second Amended Complaint, filed more than a year later on May 2, 2008.

On May 7, 2007, defendants—who are individual managers or Human Resources personnel at the Pilgrim’s Pride processing facility in Russellville, Alabama

—

*1121

moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief could be granted.

Twenty-three days later, defendants took the unorthodox step of also moving for summary judgment, contending, among other things, that the allegations in this action were without foundation and were simply copied—virtually verbatim—from at least three other complaints filed by one of plaintiffs’ attorneys in other United States District Courts within the six months preceding the filing of plaintiffs’ complaint in this case.

Defendants then moved, on June 12, 2007, to stay discovery pending determination of their motion to dismiss.

In an order dated June 22, 2007, this court denied as premature defendants’ motion for summary judgment and, pursuant to the general rule in this Circuit, stayed discovery pending decision on defendants’ motion to dismiss.

Thereafter, plaintiffs filed a motion for modification of the stay based on what appeared on its face to be the sealed affidavit of an immigration agent created in aid of an ongoing criminal investigation.

On February 12, 2008, the court heard oral arguments regarding the pending motions and, subsequently, filed a memorandum opinion and order denying defendants’ motion to dismiss and lifting the stay on discovery.

However, noting that the Eleventh Circuit had, in a very similar case (also brought by the same attorney for the plaintiffs), expressed serious concerns with the “particularly difficult proximate causation issues [that] may be presented where a plaintiff alleges nationwide injury” in the form of wage depression resulting from alleged illegal hiring, the court “limited [discovery] to those facts (if any) substantiating plaintiffs allegations of a RICO conspiracy at the Russellville, Alabama Pilgrim’s Pride facility.”

Cf. Williams,

465 F.3d at 1290 ;

see

*1122

also Trollinger v. Tyson Foods, Inc.,

370 F.3d 602, 619 (6th Cir.2004) (stating, in yet another similar case brought by plaintiffs’ counsel, that “[i]n the face of the[ ] attenuated links in the chain of causation, [defendant] asserts [that] plaintiffs cannot show proximate cause. [They] may be right— but we cannot say so at" this [12(b)(6)] stage in the proceeding.”). The order made clear that only upon demonstration of a

prima facie

case as to that locale would the court consider broadening the scope of discovery nationwide.

Four days after plaintiffs filed their amended complaint, as required by the same order that denied the motion to dismiss, this court entered the first Scheduling Order governing the initial phase of discovery.

According to that order, plaintiffs were required to designate and submit their expert reports by April 21, 2008, and all discovery was due to be concluded no later than May 30, 2008.

A week later, one day before the parties filed the report of their Rule 26(f) meeting,

plaintiffs filed their first motion to extend the time for designating expert witnesses.

As defendants noted in their opposition to plaintiffs’ motion for extension of time, many of the rationales asserted by plaintiffs to explain why they believed further time was necessary involved uncertainty about facts into which plaintiffs could have made significant inquiry even without discovery, and facts that would seem central to a good faith basis for filing suit in the first instance.

Plaintiffs also asserted, in the Rule 26(f) meeting, that they would undertake no discovery with respect to damages or proximate causation whatsoever, arguing that the court’s orders did not require them to establish those two elements of a

prima facie

case.

On April 9, 2008, this court entered a Revised Scheduling Order, making clear that the parties were “to fully explore

all aspects

of plaintiffs’ RICO claim as it relates to the Russellville, Alabama, poultry processing facility during this limited period,” including proximate causation of damages resulting from the alleged RICO predicate acts.

The order stated in no uncertain terms that the initial discovery period was intended to permit plaintiffs to establish a case, supported by sufficient facts on all elements of their claim to survive a motion for summary judgment.

That order also extended the discovery period through the month of June and, consistent with plaintiffs’ requests, provided them one further month in which to designate and file reports of their expert witnesses.

In so doing, the court warned

*1123

that the expert deadlines would not again be altered except for good cause shown.

Nonetheless, one day prior to the expiration of the revised expert designation deadline, plaintiffs moved to extend the deadlines for their experts’ reports yet again—seeking a one-week extension for their immigration expert, and three weeks extension for their damages and proximate causation expert.

Plaintiffs asserted that “good cause” existed for extending the deadline for the report of Dr. George J. Borjas, their damages expert, because the public data upon which he had intended to rely had proven insufficient.

Despite over forty-five pages of briefing on the extension, plaintiffs provided only a cursory explanation of why the adequacy of publiely-available data to inform the analysis necessary to support their claims could not have been determined during the fourteen months the case had already been pending.

They also failed to explain why they waited until the eleventh hour, more than a month and a half after entry of the revised scheduling order, to request an extension on that basis.

Nevertheless, in an effort to afford plaintiffs every opportunity to uncover the evidence necessary to establish their

prima facie

case, the court granted plaintiffs’ motion, providing plaintiffs until June 11, 2008, to tender the report of their damages expert, and until July 10 for the completion of all discovery.

Even so, on June 17, 2008, nearly a week

after

the date by which plaintiffs were to have tendered their damages expert’s report, the parties filed yet another motion to extend the expert deadlines.

No reason at all was given as to why the deadline should be extended for Dr. Borjas’s report.

Yet again, however, the court revised the schedule, “with even more liberal deadlines,” but with the

caveat

that, “absent compelling and unforeseen circumstances, this third order granting an

*1124

extension of time shall be the last.”

Plaintiffs were given until July 22, 2008 to tender the “complete report” of Dr. Borjas.

The order stated that all discovery was to be completed by August 8, 2008.

Extraordinarily, even though this court had thrice extended the deadline for Dr. Borjas’ report, providing plaintiffs with more than three extra months beyond the due date set in the original scheduling order, the parties provided the following notice, once more approximately a week

after

Dr. Borjas’ report was due:

To date Defendants have only been provided with Plaintiffs’ damages expert report. They have not been provided with the Plaintiffs’ damages expert’s supporting documentation, regression analysis and computer data and other information he relied upon or reviewed [as required by Rule 26(a)(2)(B)(i)-(ii) ]. Plaintiffs’ counsel has represented that Defendants should receive all of such information by Tuesday, July 29, 2008. Plaintiffs’ counsel has further represented that the provision of such documentation and information has been delayed because of technical issues in downloading Plaintiffs’ experts’ regression analysis programs to a c.d.

Though “not at all impressed with the reasons proffered by plaintiffs’ expert for the delay,” this court recognized that plaintiffs’ failure had deprived defendants’ damages expert of the time that the supposedly “Final Scheduling Order” had provided for his analysis of Dr. Borjas’s report.

Consequently, and in light of the joint nature of the motion to revise the schedule, the court granted yet another extension.

That order extended the deadline for completion of all discovery to August 29, 2008

As it turned out, not only were plaintiffs’ explanations for the delay in turning over the bases for Dr. Borjas’s report unimpressive, they were also false. Dr. Borjas never created a regression analysis for this case at all,

so there were no technical problems associated with downloading it. Moreover, while some of the promised data underpinning the report were indeed turned over within the timeframe described in this fourth motion to extend, plaintiffs appear not to dispute that portions of the data were not turned over until September 16, 2008, more than two weeks after the deadline for completion of discovery.

*1125

Almost immediately, on August 5, 2008, defendants filed a so-called “preliminary” motion to strike Dr. Borjas’s report, for summary judgment on damages and proximate causation, and to stay discovery, on the basis that Dr. Borjas’s report was fatally incomplete.

In that motion, defendants explicitly “reservefd] their rights to more fully brief’ plaintiffs’ asserted failure to prove damages and causation in subsequent

Daubert

and summary judgment motions “should it be necessary.”

When the motion was filed, more than three weeks remained in the discovery period

defendants’ damages expert’s complete report had not yet been tendered,

and neither Dr. Borjas nor defendants’ damages expert had yet been deposed.

Considering the motion decidedly premature, the court summarily denied it ten days after it was filed.

On September 22, 2008, defendants filed three of the motions presently under consideration: (1) a motion to exclude the testimony of James M. Johnston, plaintiffs’ immigration expert; (2) a motion to exclude the testimony of Dr. Borjas, plaintiffs’ damages and proximate causation expert; and (3) a motion for summary judgment.

The briefing regarding these motions concluded on October 27, 2008.

On December 1, 2008, Pilgrim’s Pride filed for bankruptcy protection under Chapter 11, in the Bankruptcy Court for the Northern District of Texas.

While, technically, Pilgrim’s Pride is not a party, the company has factually been at center stage in this action and, moreover, has paid the litigation fees associated with defending the two individual defendants from the outset.

Therefore, not surprisingly,

*1126

nearly a year passed during which this court saw neither hide nor hair of either party, save for occasional administrative filings related to counsel.

The court attempted to jump start the stagnant litigation on October 8, 2009, by setting the two outstanding motions to exclude for a hearing one month and ten days later.

Counsel for both parties, however, left a telephone message with chambers on October 26, 2009,

stating that they would be unable to attend, and, three days later, plaintiffs filed a motion to continue the evidentiary hearings.

Defendants’ counsel responded on the same day, suggesting the hearing be continued indefinitely, pending the determination of an as-yet-unfiled motion in the bankruptcy court to permit them to continue representation of defendants.

Recognizing that, without an authorization order from the Bankruptcy Court, defendants’ counsel could be forced to withdraw, this court granted a continuance of the

Daubert

hearing on November 2, 2009, directing counsel to notify the court regarding the progress of that motion.

On December 7, 2009, defendants gave notice that the Bankruptcy Court had granted their motion.

Yet, one week later, the parties filed a joint motion to continue the

Daubert

hearing “until after ‘Plaintiffs’ Objection to Debtors’ Amended Joint Plan of Reorganization under Chapter 11 ... filed by Pilgrim’s Pride ...’ [was] resolved.”

The motion alerted the court that, shortly after the date upon which the court continued the

Daubert

hearing and the date upon which the Bankruptcy Court authorized defendants’ counsel to continue representation in the bankruptcy case, plaintiffs’ counsel had filed objections to the plan filed in the Bankruptcy Court.

Accordingly, the parties jointly requested that no hearing date be set until the dispute regarding Pilgrim’s Pride’s Reorganization Plan had been resolved.

*1127

Before the parties notified the court about such a resolution, however, on February 3, 2010, plaintiffs filed a “Motion to Strike Defendants’ Experts’ Declarations and Deposition Transcripts and to Decide Defendants’

Daubert

Motions without a Hearing.”

Plaintiffs contended that defendants’ suggestion that they would not introduce the live testimony of defendants’ experts at the hearing on defendants’ motion to exclude the testimony of plaintiffs’ experts meant defendants were not entitled to use the declarations or deposition testimony of the experts they had retained in this action for any purpose.

In addition to providing no citation even remotely supporting the relief sought, plaintiffs’ motion was also, as a motion to strike expert testimony, nearly a year and a half tardy.

The motion was denied on February 19, 2010, 2010 WL 4595716 .

On March 5, 2010, the parties filed a joint notice regarding the status of the action.

That document alerted the court about the following occurrences in the Bankruptcy Court.

On January 1, 2009, Pilgrim’s Pride moved to extend the automatic stay in the bankruptcy action to include all pending litigation that would use its resources, including this case.

Plaintiffs filed a response in opposition on February 3, 2009.

On March 3, 2009, the bankruptcy court declined to extend the stay and instead permitted the litigation to be addressed through the adversary proceeding process in that court.

Such a proceeding was, however, never initiated with respect to this action.

Pilgrim’s Pride and the related entities who were debtors-in-possession in the bankruptcy proceedings subsequently filed a Plan of Reorganization that was adopted by the Bankruptcy Court, but plaintiffs filed an objection to that plan on November 30, 2009.

The plan was confirmed over plaintiffs’ objections.

As part of the company’s discharge from bankruptcy, Pilgrim’s Pride is excluded from liability in this case.

However, the Bankruptcy Court issued an order on January 14, 2010, clarifying that suits against third-parties, like the individual employee defendants in

*1128

this case, could nonetheless proceed.

With few exceptions, the parties gave no notice regarding the occurrence or details of most of these proceedings and determinations until March 5, 2010.

After review of these materials, the court once again set defendants’ motions to exclude for a hearing, this time on April 27, 2010.

Over the course of more than eight hours, the court took testimony from both of plaintiffs’ experts and heard extensive argument regarding whether those experts, and specifically the reports they have tendered pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), satisfy the requirements of Federal Rule of Evidence 702, as elucidated by

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), and its progeny.

B. Professor Borjas’s 26(a)(2)(B) Report and Proposed Testimony

Plaintiffs have proffered Dr. George J. Borjas for the purposes of testifying “that wages paid by Pilgrim’s Pride to the Plaintiffs were depressed as a result of Defendant’s alleged practice of employing legally ineligible workers.”

See Williams v. Mohawk Industries, Inc.,

465 F.3d 1277, 1287 (11th Cir.2006) (reiterating the elemental requirement that plaintiffs must show that “the injury pled was proximately caused by the claimed RICO violations”) (citing

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451, 458-59 , 126 S.Ct. 1991 , 164 L.Ed.2d 720 (2006)). Pursuant to the requirements of Federal Rule of Civil Procedure 26(a)(2)(B) and the orders of this court, Dr. Borjas created a report detailing his methodology, the data upon which he relied, and the opinions he derived from the data.

The central premise of much of Dr. Borjas’s academic work, and of his analysis in this case, is that, at least in the short run, “[o]ther things equal, an immigration-induced increase in the size of the workforce lowers the wage of competing workers.”

This assertion proceeds from foundational economic principles of supply and demand in a competitive market.

Consistent with this theory, Dr. Borjas developed an econometric framework to “estimate[ ] the responsiveness of wages to immigration-induced supply shifts in a national labor market defined along the dimension of skills....”

Though Dr. Borjas admits that no studies have yet done so, he asserts that “there are no conceptual reasons that prevent the theory and econometric methodology from being adapted to the current context.”

To that end, his report proposes to measure this responsiveness of wages to increases in the labor supply resulting from immigration (the “wage elasticity”) by use of a regression analysis that will determine the curve-of-best-fit for the relationship of three variables:

(1) the in

*1129

crease in the labor supply as a result of immigration to the area, determined by using the relative increase in the number of students in the Russellville School District as a proxy;

(2) the real wage of hourly workers employed at the Russell-ville Pilgrim’s Pride facility; and (3) the number of person-hours employed at the plant.

The slope of this curve will describe the change in wage for every incremental increase in the local labor supply. To deal with the problem that such a measure “would simply reflect the market pressures ... in the entire labor market, and would not provide any information about how the Russellville plant’s wages respond to a shift in Pilgrim’s Pride’s own polices towards employment of undocumented workers,” he proposes to further demonstrate that the company has “wage discretion,”—that is, it has market power to pay a lesser wage than its competitors for the same pool of labor.

With this demonstration of market power, his report indicates he can simply multiply the coefficient of wage-change for every increase in labor supply (determined by the regression) by the number of workers hired in violation of the predicate acts, and thereby determine proximately caused damages.

II. LEGAL STANDARDS

Daubert

Motion Standards

“ ‘Rule 702 compels the district courts to perform the critical ‘gatekeeping’ function concerning the admissibility of expert scientific [and technical] evidence.’ ”

United States v. Abreu,

406 F.3d 1304, 1306 (11th Cir.2005) (quoting

United States v. Frazier,

387 F.3d 1244, 1260 (11th Cir.2004)) (alteration in original). “This function inherently requires the trial court to conduct an exacting analysis of the foundations of expert opinions to ensure they meet the standards for admissibility under Rule 702.”

Id.

(internal quotation omitted).

[T]he objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

Kumho Tire Co., Ltd. v. Carmichael,

526 U.S. 137, 152 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999). At base, the analysis requires “the proponent of the testimony ... [to] show that: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which he reaches his conclusions is sufficiently reliable; and (3) the testimony assists the trier of fact.” '

Maiz v. Virani,

253 F.3d 641 , 665 (11th Cir.2001). These requirements can be shown by demonstrating that “ ‘(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.’ ”

Hendrix ex rel. G.P. v. Evenflo Co., Inc.,

609 F.3d 1183, 1193 (11th Cir.2010) (quoting Fed.R.Evid. 702).

“The inquiry ... is a flexible one” because, in any given case, “[m]any

*1130

factors will bear on the inquiry, and ... [there is no] definitive checklist or test.”

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 593-94 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993). Factors that may be relevant include:

(1) whether the theory or technique can be (and has been) tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) in the case of a particular ... technique, the known or potential rate of error, and (4) whether the theory or technique is generally accepted by the relevant ... community.

Hendrix ex rel. G.P.,

609 F.3d at 1194

(internal quotation marks and alterations omitted).

B. Summary Judgment Standards

Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The court “view[s] the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion” and “all reasonable doubts about the facts [are] resolved in favor of the non-movant.”

See Burton v. City of Belle Glade,

178 F.3d 1175, 1187 (11th Cir.1999) (internal quotations omitted).

Once the moving party has properly supported its motion for summary judgment, the burden shifts to the non-moving party to “come forward with ‘specific facts showing that there is a genuine issue for trial.’ ”

Matsushita Electric Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). The mere existence of some evidence to support the non-moving party is not sufficient for denial of summary judgment; instead, there must be “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.”

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.”

Id.

at 249-50 , 106 S.Ct. 2505 (internal citations omitted).

III. DISCUSSION

A. Plaintiffs’ Rule 56(f) Petition for Further Discovery

Lead counsel for plaintiffs, Howard Foster,

executed an affidavit seeking further discovery contemporaneously with plaintiffs’ response to defendants’ motion for summary judgment.

Oddly, other than two bare citations to the exhibit number of

*1131

this document in their brief opposing summary judgment, plaintiffs did not expressly advert to what effectively amounts to a Rule 56(f) affidavit in any filing, nor did plaintiffs ever file a standalone motion seeking further discovery in conjunction with it.

At the

Daubert

hearing, defendants argued plaintiffs had failed to timely move, under Rule 56(f), for further discovery, and plaintiffs did not dispute that assertion.

Plaintiffs did, however, stringently argue that, to the extent doing so was necessary, Dr. Borjas would be able to “complete his report” and cure any deficiencies in it as proof of causation and damages if they were permitted further discovery.

100

The court will address this assertion on the presumption that a Rule 56(f) petition was properly made.

Cf. Reflectone, Inc. v. Farrand Optical Co., Inc.,

862 F.2d 841, 844 (11th Cir.1989) (“We reaffirm that rule 56(f) is ‘infused with a spirit of liberality,’ [though] we cannot go so far as to

require

courts to make such a motion on behalf of a party that deliberately chooses not to do so itself.”) (quoting

Wallace v. Brownell Pontiac-GMC Co., Inc.,

703 F.2d 525, 527 (11th Cir.1983)) (emphasis supplied). Further, since the additional discovery sought, would be directed exclusively to permitting Dr. Borjas to amend his report, it must be dealt with before the court will examine whether Dr. Borjas’s proposed testimony is sufficiently reliable evidence on these two elements of plaintiffs’

prima facie

case.

Plaintiffs identify two related categories of data about the employment levels at the Russellville facility that would allegedly enable Dr. Borjas to complete his report. First, they seek “to resolve the dispute and/or verify” data about the total number of employees at the facility, including temporary workers, calculated in terms of man-hours, for the previous decade, as well as the wages paid all unskilled workers for the same period.

101

As a closely related corollary, they seek information about any capital improvements at the plant, so that Dr. Borjas may properly account for the effects of process automation on employment levels.

102

To demonstrate an entitlement to further discovery under Rule 56(f), a party must “set[ ] forth with particularity the facts the moving party expects to discover and how those facts would create a genuine issue of material fact precluding summary judgment.”

Harbert International, Inc. v. James,

157 F.3d 1271, 1280 (11th Cir.1998). Plaintiffs’ affidavit pro

*1132

vides sufficient detail about the facts they seek to discover and, albeit inferentially, how those facts would create a genuine issue.

103

Particularly where the parties have already been afforded significant discovery, however, such a showing is not, by itself, sufficient.

E.g., First National Bank of Arizona v. Cities Service Co.,

391 U.S. 253, 270, 298-99 , 88 S.Ct. 1575 , 20 L.Ed.2d 569 (1968) (approving of denial of Rule 56(f) motion where failure to produce necessary evidence, “despite considerable discovery, demonstrated that additional discovery would be merely a fishing expedition and would unduly harass” the other party). The Eleventh Circuit has made abundantly clear that a party will not be entitled to further discovery under Rule 56(f) where the absence of evidence crucial to its case is the result of that party’s lack of diligently pursuing that evidence through the discovery it was permitted.

E.g., Florida Power & Light Co. v. Allis Chalmers Corp.,

893 F.2d 1313, 1316 (11th Cir.1990) (affirming denial of 56(f) petition where “[t]he parties [had] agreed on a discovery schedule which the trial court extended on several occasions”). “Because the burden on a party resisting summary judgment is not a heavy one, one must conclusively justify his entitlement to the shelter of rule 56(f) by presenting

specific facts explaining the inability to make a substantive response

as required by rule 56(e).... ”

S.E.C. v. Spence & Green Chemical Co.,

612 F.2d 896, 901 (5th Cir. 1980) (emphasis supplied) (quotation marks and internal citations omitted).

104

This is “particularly [so] where, as here, ample time and opportunities for discovery have already lapsed.”

Id.

Accordingly, it is necessary not only for a party moving for further discovery to show precisely

what

it expects to discover if furnished additional time, but

why

it should be furnished additional time at all.

See

10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice and Procedure

§ 2741, at 405-07 & n. 15 (2d ed. 1998).

Plaintiffs advance three explanations for their failure to obtain sufficient information to enable Dr. Borjas to accurately determine and account for changes in employment levels at Pilgrim’s Pride. First, they contend that they did not become aware that capital improvements may have affected employment levels at the facility until too late in the discovery period.

105

Second, they argue that, notwithstanding the enormous amounts of employment data disclosed, the true level of employment at Pilgrim’s Pride during the relevant period remains “disputed” and “uncertain[]” because of “defendants’ inaccurate discovery responses” and purported failure to disclose the number of temporary workers.

106

Third, they protest that “the very limited discovery permitted ... simply did not permit Plaintiffs to depose the Plant personnel necessary to determine the true level of employment there.”

107

*1133

Plaintiffs’ averment in counsel’s affidavit that they did not know about “the possibility that automation decreased the need for hourly employees until the end of the discovery period” is flatly contradicted by the expert whose testimony would be shored up if they were granted the further discovery they seek.

108

Initially, it is difficult to believe, especially in light of plaintiffs’ counsels’ extensive experience with cases alleging wage depression theories identical to the one at issue here,

109

that plaintiffs were unaware that their damages theory, which necessarily requires precise measurement of trends in employment levels, would need to account for automation. The potential impact of automation on employment levels in the short run has not only been extensively examined in economic literature since at least the Industrial Revolution, but also is so commonly understood that. it has given rise to its own phrase: “labor-saving technology.”

110

Further, plaintiffs’ assertion that it “makes

*1134

no economic sense,” and Dr. Borjas’s contention that “it is hard to reconcile the reported decline in employment with the fact that there was an increase in the Russellville plant’s output,” are at best disingenuous when Dr. Borjas’s own textbook addresses the precise point: “If the technological advances that are being introduced constantly into the labor market are good substitutes for unskilled workers ... this type of technological change would lower the demand for unskilled labor.” George Borjas,

Labor Economics

306 (4th ed. 2008). Dr. Borjas also does not dispute that United States Census Bureau statistics showed employment per plant falling by 5 percent in the poultry industry as a whole between 2003 and 2006, while output per employee rose 17 percent and capital investment rose by 17.2 percent.

111

More importantly, Dr. Borjas testified that he discovered discrepancies between the data he was given on the output of the Pilgrim’s Pride plant and the number of employees “the minute [he] started playing with the data.”

112

He immediately “told counsel that there were things in the data that seemed contradictory, and [he] did ask specifically about the capital improvements ... and ... told counsel that without resolution of th[o]se issues” he would be unable to perform the regression analysis he had been retained to conduct.

113

At the

Dauberb

hearing, Dr. Borjas reiterated this point: “And I remember asking counsel at the time, is there anything on the lines of a machine coming in that would explain this? And the answer provided to me at the time was no, but that answer, I think is incorrect.”

114

Plaintiffs never asked defendants for that information.

115

Instead, plaintiffs’ counsel told Dr. Borjas that “[h]e didn’t know of any” capital improvements, and that there “wasn’t any data in the context of the case.”

116

Dr.

*1135

Borjas conveyed to counsel that, “without resolution of these issues,” he would be unable to determine the critical element of wage elasticity:

Q. What did counsel say to you about that?

A. Write what you have.

Q. Finish your report.

A. That’s what I did.

117

Plaintiffs admittedly deposed at least two Human Resources professionals at the plant after Dr. Borjas requested information about capital improvements and their possible impact on total man-hours at the facility, and yet they never asked any questions on the point.

118

Accordingly, this proffered explanation for plaintiffs’ failure to obtain information necessary to permit Dr. Borjas to complete his analysis during the time they were afforded does no more than highlight that they failed to do so.

Plaintiffs’ second explanation for their failure to obtain sufficient information regarding the number of man-hours—that defendants “sandbagged” them by providing inaccurate information

119

—also is unavailing and for similar reasons. Plaintiffs make much of Pilgrim’s Pride’s conceded overproduction of employment files for individuals employed on April 18, 2008. Initially, Pilgrim’s Pride produced approximately 1,900 employee files. However, on June 6, 2008, defendants’ response to the first question in plaintiffs’ second set of interrogatories indicated that, on May 1, 2008, there were 1,344 employees at the facility.

120

By June 6, 2008, the discrepancy was resolved when defendants acknowledged they had mistakenly sent the files of approximately 600 individuals who were

not

current employees on the relevant date.

121

Plaintiffs provide no explanation whatsoever why a discovery discrepancy resolved well over a month and a half prior to issuance of Dr. Borjas’s report would affect his ability to complete it. Further, the production discrepancy related to the analysis of plaintiffs’ immigration expert, James M. Johnston, who examined the files for the purpose of opining about the probable legality of each individual employee.

122

Professor Borjas expressly stated that

he had never read

Johnston’s report and, even though he cites two numbers from the report, there is no indication any delay in receiving those numbers impacted his analysis.

123

*1136

Plaintiffs also advance the argument that they are entitled to more discovery because their failure to obtain accurate employment data for Dr. Borjas is attributable to defendants’ failure to provide them information regarding temporary contract workers at Pilgrim’s Pride.

124

Yet, plaintiffs knew that Pilgrim’s Pride had used temporary employee services at least as early as defendants’ supplemented responses to plaintiffs’ first set of interrogatories, which plaintiffs received on June 17, 2008, more than a month before Dr. Borjas rendered his report, and more than two months prior to the close of discovery.

125

Still, they apparently chose thereafter to neither refíne their interrogatories to determine the numbers of such workers, nor to subpoena the records of the several temporary employment service providers defendant Thomas identified as having provided contract labor to Pilgrim’s Pride.

126

Rather, they simply relied on conflicting responses from witnesses to assert that the number of such workers is “disputed,” and that they should, therefore, be entitled to further discovery. Plaintiffs’ apparent contention that defendants should have turned over the information

without their requesting it

lacks merit entirely.

127

Certainly plaintiffs cannot contend that their failure to properly pursue evidence that they knew existed two months prior to the close of discovery “conclusively justifies their] entitlement to the shelter of rule 56(f) by ... specific facts explaining the[ir] inability to make a substantive response.... ”

Spence & Green Chem. Co.,

612 F.2d at 901 .

Plaintiffs also assert that their failure to obtain correct employment level data was the result of inconsistencies between the numbers of employees stated in defendants’ interrogatory responses and in other documents plaintiffs have uncovered.

128

Specifically, plaintiffs identify two sources of information that appear to conflict with defendants’ responses. The first is a generally addressed memorandum from former Division Manager Don Wisdom discussing the plant’s water needs that indicated there were 2,100 employees at the facility in 2005 (which included employees at a nearby hatchery and feed mill that are

not

implicated by the claims in this action),

129

portions of

*1137

which plaintiffs discovered on a now-defunct website.

130

The second is a 2004 Tennessee Valley Authority report indicating that the work force would increase to 1,900 at some unspecified point in the future.

131

Yet again, however, the problem to which plaintiffs point merely highlights their failure to take advantage of the discovery afforded them.

132

Even assuming these two single-page, outside sources are sufficiently reliable to create a reasonable dispute with defendants’ sworn answers to interrogatories, plaintiffs provide no explanation as to why they did not bring the asserted discrepancies to the court’s attention

when discovered,

rather than providing an incomplete report months later and then pointing to the different numbers as an excuse.

133

A party who reasonably believes its counter-party is prevaricating or falsifying discovery responses should “promptly [seek] the district court’s assistance,” and failure to do so should result in “den[ial of a] Rule 56(f) motion ... on the ground that [the moving party] ha[s] not been diligent.”

Exigent Technology, Inc. v. Atrana Solutions, Inc.,

442 F.3d 1301, 1310 (Fed.Cir. 2006) (applying Eleventh Circuit law). Indeed, the far more likely explanation for plaintiffs’ ascription of fault to the numbers defendants provided in their discovery responses is that, when Dr. Borjas applied his theory to those numbers, his theory, as he admitted, “simply didn’t hold up in this case.”

134

Neither the failure of discovery to prove what a party hoped it would, nor its possible inconsistency with one piece of online hearsay and one speculative third-party public record, are even marginally convincing justifications under Rule 56(f).

Finally, plaintiffs make much of the fact that discovery was “limited in this case,” implying that, to the extent they failed to obtain sufficient information to permit Dr. Borjas to complete his analysis,

this court,

as opposed to their attorney, is to blame.

135

Yet, with a single exception, the amount of discovery permitted plaintiffs to establish

*1138

their

prima facie

case was precisely what plaintiffs asked for in the parties’ Rule 26(f) report.

136

Still, plaintiffs rail that the five depositions this court allowed in its initial scheduling order were insufficient to permit them to discover the information they needed. Yet plaintiffs never, as counsel admitted at the

Daubert

hearing, moved for leave to conduct additional depositions and, indeed, despite counsel’s suggestion to the contrary, never moved for more discovery at all.

137

Instead, they waged desultory and pointless battles to modify the protective order to which they had agreed.

138

Plaintiffs had self-evidently convincing reasons to permit them to conduct more depositions than allowed in the revised scheduling order: the discovery of new information (regarding possible capital improvements and the use of contract labor) and conflicting data regarding employment levels. They simply chose not to ask.

139

It is far too late in the day for plaintiffs’ plea for further discovery. Even had the parties not absented themselves for a year and a half of wrangling in a Texas Bankruptcy Court, it would still have been too

*1139

late. Plaintiffs were afforded every opportunity to gain the information necessary to prove their case. The court extended discovery deadlines four times,

140

twice extending the deadline for Dr. Borjas’s report

after

it was due,

141

and ultimately providing “even more liberal deadlines” than plaintiffs requested.

142

Not once did plaintiffs alert this court to any of the problems they now contend should entitle them to further discovery, nor did they ever seek aid in securing the information Dr. Borjas says was necessary for completion of his report.

143

Accordingly, plaintiffs’ Rule 56(f) petition is due to be denied. Plaintiffs are not entitled to yet another opportunity to tender a Rule 26(a)(2)(B) expert report on damages and causation sufficient to preclude summary judgment. The federal rules do not reward the dilatory, and plaintiffs’ lack of diligence militates in favor of denial.

144

Dr. Borjas’s report must stand, if it stands at all, on its own two legs.

B. Defendants’ Motion to Exclude the Testimony of Dr. George Borjas

1. Dr. Borjas’s report is fatally incomplete

Without more, Dr. Borjas’s report fails to present any opinion that would help determine a fact in issue. To prove their

*1140

RICO claim in this action, plaintiffs must prove damages “by reason of’ the predicate violations. 18 U.S.C. § 1964 (c). The object of Dr. Borjas’s proposed expert testimony is to satisfy these elements by causally linking a diminution in wages in a relevant labor market to defendants’ alleged hiring of unauthorized workers.

Proper performance of a court’s gatekeeping role under Federal Rule of Evidence 702 requires not only that a court determine that a qualified expert has reliably applied reliable methods to sufficient data to permit him to provide an opinion, but also that the opinion the witness purports to provide be actually helpful to determination of a fact in issue.

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 591-592 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993) ("Rule 702’s `helpfulness’ standard requires a valid ... connection to the pertinent inquiry as a precondition to admissibility.");

United States v. Frazier,

387 F.3d 1244, 1260 (11th Cir.2004)

(en

banc) ("The burden of establishing ... helpfulness rests on the proponent of the expert opinion."); Fed.R.Evid. 702 (requiring that expert testimony "assist the trier of fact"). Expert testimony "does not assist the trier of fact unless the testimony has a justified... relationship to the pertinent facts."

McDowell v. Brown,

392 F.3d 1283, 1299 (11th Cir.2004) (citing

Daubert,

509 U.S. at 591 , 113 S.Ct. 2786 ). This requirement stems from basic principles of relevancy: "expert testimony must be `relevant to the task at hand[:] ... it [must] logically advance[] a material aspect’ of the case."

Id.

at 1298-99 (quoting

Daubert,

509 U.S. at 591 , 113 S.Ct. 2786 ). Courts have fleshed out the concept to clarify that, simply because an expert’s conclusion may superficially appear relevant to and helpful in the determination of facts at issue, if it is too far divorced from the underlying data, it may ultimately prove unhelpful.

[T]he Supreme Court has noted that, in the context of this analysis, “conclusions and methodology are not entirely distinct from one another.”

General Elec. Co. v. Joiner, 522

U.S. 136, 146, 118 S.Ct. 512 , 139 L.Ed.2d 508 (1997). Although experts “commonly extrapolate from existing data ... nothing in either

Daubert

or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the

ipse dixit

of the expert.”

Id.

Rather, the trial court is free to ‘conclude that there is simply too great an analytical gap between the data and the opinion proffered.’

Id.

Hendrix ex rel. G.P. v. Evenflo Co., Inc.,

609 F.3d 1183, 1194 (11th Cir.2010);

see also

Silvia Helena Barcellos,

The Dynamics of Immigration and Wages

3 (Rand Labor & Pop. Working Paper No. WR-755, Mar. 2010) (“Borjas (2003) argues that given internal migration, the correct way to define the labor market is in terms of the nation as a whole.”).

The methodology Dr. Borjas has outlined for use in this case, however, purports to describe wage impacts at a much narrower level: a labor market defined as a single firm.

203

He asserts that he “believe[s] the same basic methods and concepts used in the literature can be applied to estimate the impact of immigration at the firm level,”

204

but fails to explain why he has chosen to jettison the skepticism about multiple frustrating factors, even at much larger levels of aggregation, that has driven much of his academic work.

No less an authority on the function of economic theory in legal contexts than

*1152

Judge Frank Easterbrook of the Seventh Circuit has opined about “the difficulty of establishing that unlawful hiring of aliens caused a diminution in ... wages” in a case alleging the same theory as that asserted here:

RICO provides treble damages for direct injuries but not remote ones.... Although the Ninth Circuit concluded in

Mendoza

that the injury workers suffer when wages are depressed by competition from aliens is similar to the kind of injuries redressed under the antitrust laws, things may not be so straightforward. An increased supply of labor logically affects, not just the wages at [defendants’ Russellville] plant, but wages throughout the region (if not the country). Workers can change employers (leaving [Pilgrim’s Pride] for higher pay elsewhere), and this process should cause equilibration throughout the labor market. Yet plaintiffs’ theory is not that too many aliens depress wages around [Russellville]; it is that [Pilgrim’s Pride] pays lower wages than some competitors, and that effect would be very hard to attribute to particular violations of 8 U.S.C. § 1824 (a)(3)(A).

Baker v. IBP, Inc.,

357 F.3d 685, 692 (7th Cir.2004),

cert. denied,

543 U.S. 956 , 125 S.Ct. 412 , 160 L.Ed.2d 318 .

The Supreme Court has admonished courts to be vigilant in application of RICO’s requirement that plaintiffs prove damage "by reason of the substantive RICO violations. "[U]nder civil RICO, the plaintiff is required to show that a RICO predicate offense `not only was a `but for’ cause of his injury, but was the proximate cause as well.’"

Hemi Group, LLC v. City of New York,

— U.S. —, 130 S.Ct. 983, 989 , 175 L.Ed.2d 943 (2010) (quoting

Holmes v. Securities Investor Protection Corporation,

503 U.S. 258, 268 , 112 S.Ct. 1311 , 117 L.Ed.2d 532 (1992)). "[T]he focus is on the directness of the relationship between the conduct and the harm."

Id.

at 991. Plaintiffs must demonstrate "`a direct causal connection’ between the predicate offense and the alleged harm."

Id.

(quoting

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451, 460-61 , 126 S.Ct. 1991 , 164 L.Ed.2d 720 (2006)). There must be "no independent factors that account for [the] injury...."

Bridge v. Phoenix Bond & Indemnity Co.,

553 U.S. 639, 658 , 128 S.Ct. 2131 , 170 L.Ed.2d 1012 (2008). Even if causing the "harm" asserted was the purpose of a criminal scheme, and acts in furtherance of that scheme have caused it, unless a designated "predicate act directly caused" that harm, then RICO’s proximate causation requirement has not been met.

Anza,

547 U.S. at 460 , 126 S.Ct. 1991 (stating that a party may not "circumvent the proximate-cause requirement simply by claiming that the defendant’s aim was to" cause the harm alleged);

Beck v. Prupis,

529 U.S. 494, 500-01 , 120 S.Ct. 1608 , 146 L.Ed.2d 561 (2000) ("[I]njury caused by an overt act that is not an act of racketeering or otherwise wrongful under RICO," even if "in furtherance of a conspiracy," "is not sufficient to give rise to a cause of action under § 1964(c)").

There are multiple causal concerns with Dr. Borjas’s proposed analysis that would make it both unpersuasive and highly confusing on this critical causal element. Plaintiffs’ asserted injury is directly caused by the decision, at some level in the Pilgrim’s Pride hierarchy, to set wages below what they hypothetically might otherwise have been. Initially, incremental wage-setting decisions in a nationwide corporation do not follow the smooth curve that Dr. Borjas’s measurements require and may emerge from multiple levels of the corporate hierarchy, many of which may have no relationship whatsoever to defendants or their alleged co-conspirators. Further, any wage-setting decision

*1153

would undoubtedly be influenced by a variety of factors, many of which Dr. Borjas has written about extensively in cataloguing the difficulty labor economists have faced in working out the wage impacts of immigration.

E.g.,

Borjas,

The Labor Demand Curve

Downward Sloping, supra,

at 1370 (suggesting, as a necessary avenue for further research, “documenting the many adjustments that take place, by workers and firms, both inside and outside the labor market, as immigration alters economic opportunities in many sectors of the economy”). Dr. Borjas’s analysis does not even purport to directly examine those decisions or factors other than illegal hiring that may have influenced them, and to what degree. As detailed above, Pilgrim’s Pride itself was sliding toward (and ultimately into) bankruptcy during the relevant time frame, a factor that very probably impacted the wages it paid over the period examined. Moreover, it is undisputed that there were significant capital improvements at the company, which Dr. Borjas has written affect

demand

for labor, necessarily altering the supply-and-demand curve his model relies upon.

See

Borjas,

Labor Economics, supra,

at 304-09. Further, he does not dispute that the nationwide average wage in the poultry industry on the whole failed to keep pace with inflation during the relevant years— meaning that the real wage in the entire industry nationwide fell (and, hence, that industry-wide competitive pressure pushed al poultry-processing firms, Pilgrim’s Pride included, to maintain lower labor costs), a point Dr. Borjas dismisses only by saying that Pilgrim’s Pride “might have kept [pace] even less.”

205

A court must ensure an “expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.”

Hendrix ex rel. G.P. v. Evenflo Co., Inc.,

609 F.3d 1183, 1193 (11th Cir.2010). Dr. Borjas’s failure to account for the very frustrating causal factors he has identified in his academic work is far too problematic.

Moreover, provided

someone

had hired them, Dr. Borjas’s general theory itself would posit that, because all unauthorized workers increase the labor supply, wages at Pilgrim’s Pride should fall if immigrants had moved into the area, even if Pilgrim’s Pride had never hired a single one.

See

Borjas,

The Labor Demand Curve

Downward Sloping, supra,

at 1368-70. Thus, the same decline in plaintiffs’ real wages would occur even if the defendants had not committed the required predicate act—a fact that entirely eviscerates the assumption that the hiring (much less hiring with the requisite knowledge) was the “but for” cause of plaintiffs’ depressed wages.

Any or all of these factors (and probably several more) could easily explain a diminution in wages; yet, if Dr. Borjas were to complete his analysis as outlined in his report, he would control for none of them and would, instead, attribute the entire diminution in wage to increased labor supply and then multiply that coefficient by the number of immigrants allegedly hired in violation of the INA. It is, of course, decidedly possible that one factor in any diminution may have been a substantive RICO violation, but Dr. Borjas’s analysis does not even purport to show, and plaintiffs have pointed this court to no other evidence indicating, what portion of the wage-setting decision is directly attributable to other decisions to hire or harbor unauthorized aliens. In short, the showing plaintiffs seek to make could only demonstrate a correlation between real wages at the Russellville plant and the ethnic makeup of the local school district—nothing more and nothing less. Any indication of the causal link that RICO requires is sim

*1154

ply too attenuated. "A link that is `too remote,’ `purely contingent,’ or `indirec[t]’ is insufficient."

Hemi Group, LLC,

— U.S. —, 130 S.Ct. at 989 (quoting

Holmes,

503 U.S. at 271, 274 , 112 S.Ct. 1311 ) (alterations in original). Certainly an expert is not required to "rule out all possible alternative causes" in order for his testimony regarding causation to be reliable.

Guinn,

602 F.3d at 1253 . However, particularly in light of the Supreme Court’s pronouncements regarding RICO’s causation element, an expert whose testimony is offered to establish that element "must provide a reasonable explanation as to why he ... concluded that any alternative cause suggested ... was not the sole cause of the plaintiff’s injury."

Id.

at 1253 (quotation and alterations omitted). This is particularly so where the prospective witness’s own academic work suggests those alternatives and has criticized others’ work as "uninformative" for failing to properly account for them. The very "objective" of a court’s performance of its role as gatekeeper under Rule 702 "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."

Kumho Tire Co., Ltd.,

526 U.S. at 152 , 119 S.Ct. 1167 .

The court holds that plaintiffs have failed to carry their burden of establishing that Dr. Borjas’s analysis, as described in his report, could reliably evidence the propositions for which they offer it. To any extent Dr. Borjas’s tailored-for—(this increasingly popular strain of)—litigation testimony would be probative on the question of whether defendants’ predicate RICO violations were the direct, substantial, but—for cause of plaintiffs’ injury, that slight value is far outweighed by the likelihood his testimony would confuse and mislead a jury. "[C]ourts must take care to weigh the value of such [expert] evidence against its potential to mislead or confuse."

Frazier,

387 F.3d at 1263 . The "specific issue" a court must assess is the "reasonableness of using [the proffered] approach, along with [the expert’s] particular method of analyzing the data thereby obtained, to draw a conclusion regarding

the particular matter to which the expert testimony was directly relevant." Kumho Tire Co. Ltd.,

526 U.S. at 153-54 , 119 S.Ct. 1167 (emphasis in original). "

`[A]ny

step that renders the analysis unreliable under the

Daubert factors renders the expert’s testimony inadmissible.’" McClain v. Metabolife International, Inc.,

401 F.3d 1233, 1245 (11th Cir.2005) (quoting

Amorgianos v. National Railroad Passenger Corp.,

303 F.3d 256, 267 (2d Cir.2002)) (emphasis in original). Any of the above-identified flaws in the methodology Dr. Borjas proposes could, alone, render his analysis unreliable; together, they are fatal. Dr. Borjas’s expert report is due to be stricken and, hence, his testimony excluded.

C. Defendants’ Motion for Summary Judgment

Plaintiffs do not appear to contest that Dr. Borjas’s report, and the proposed testimony it represents, is the only evidence before the court on the causation and damages elements of their cause of action.

206

Because that report is due to be

*1155

excluded, defendants’ motion for summary judgment is due to be granted on the basis that plaintiffs have failed to present evidence of damages and causation.

Plaintiffs’ failure to causally link any wage depression that may have occurred to the RICO predicate acts, as § 1964(c) requires, is perhaps unsurprising, because plaintiffs have not provided sufficient evidence that the predicate offenses occurred

at all.

In their complaint, plaintiffs alleged violation of two provisions of 8 U.S.C. § 1324 (a) as possible predicate acts for their RICO claim. First, they assert that defendants or their co-conspirators violated § 1324(a)(3)(A) (the “hiring” provision), which makes it illegal, “during any 12-month period, [to] knowingly hire[ ] for employment at least 10 individuals with actual knowledge that the individuals are aliens as described in [§ 1324(a)(3)(B) ].” 8 U.S.C. § 1324 (a)(3)(A). Section 1324(a)(3)(B), in turn, defines “alien” as (1) “an unauthorized alien” who is not either lawfully admitted for permanent residence or authorized to be employed, who (2) “has been brought into the United States in violation of [§ 1324(a) ].” 8 U.S.C. § 1324 (a)(3)(B). The Eleventh Circuit has helpfully parsed this multiply-recursive language into its constituent elements and clarified their relationship to one another.

Edwards v. Prime, Inc.,

602 F.3d 1276, 1292-93 (11th Cir.2010). For an employer to violate the section, he must not only hire ten individuals in a calendar year with actual knowledge that they are unauthorized for employment in this country, but must also have actual “knowledge that the alien was brought into the country illegally.”

Id.

at 1293 .

This final element is critical, as the Eleventh Circuit noted in

Edwards ,

because it demarcates the distinction between a crime under the INA that “would be a RICO predicate act” and one that “would not be a RICO predicate act.”

Id.

“ ‘If the employer does not know that at least 10 of its illegal hires were ‘brought into’ the country by some third party (as opposed to walking across the border themselves, or arriving on a visitor’s or student visa and outstaying their welcome), then it has not committed a RICO predicate act by hiring them....’”

Id.

at 1293 (quoting

Nichols v. Mahoney,

608 F.Supp.2d 526, 534 (S.D.N.Y.2009)). The emphasis placed upon this element is a central part of the congressional design of both the INA itself and its selective incorporation § 1961(1)(F) of RICO in 1996.

Id.

This court drew a particularly sharp line under this requirement very early in this case, “holdfing] that the proper construction” of this provision required proof that defendants hired “ten or more individuals ... with

actual knowledge

that such individuals have entered the United States with some assistance or encouragement from another person.”

207

Assuming,

arguendo,

that plaintiffs have adduced sufficient evidence, through their immigration expert Johnston, to create a genuine dispute about whether defendants hired aliens with actual knowledge that they were unauthorized,

208

plaintiffs fail even to squarely argue defendants had

*1156

actual knowledge those aliens were illegally brought into the United States. Indeed, tellingly, plaintiffs

never even use

the phrase “brought into” or any phrase with a similar meaning in the seven pages devoted to “actual knowledge” in their brief opposing summary judgment.

209

Plaintiffs contend that "brought in" should be given a liberal interpretation to "include .... assistance of any kind, either prior to entry or after."

210

In support of this proposition, plaintiffs cite several cases from other circuits to suggest that "brought" has abroad meaning.

211

All of these cases are decidedly inapposite, as they each interpret

a different provision

that makes it illegal to "bring to the United States in any manner whatsoever" an alien who has not received prior authorization.

United States v. Gasanova,

332 F.3d 297 , 299-300 (5th Cir.2003) (quoting 8 U.S.C. § 1324 (a)(2)(B));

United States v. Yoshida,

303 F.3d 1145, 1151-53 (9th Cir. 2002);

United States v. Aslam,

936 F.2d 751, 755 (2d Cir.1991). The "in any manner whatsoever" language does not appear in § 1324(a)(3)(A). Yet it is precisely these courts’ recitation of that language to which plaintiffs point in urging this court to read "brought into" in § 1324(a)(3)(A) as "assistance of any sort," including in obtaining false documentation.

212

This court need not determine, however, whether these constructions of "bring[ing] to," extended as they are by that language, should be coextensive with "brought to," actual knowledge of which is required to violate § 1324(a)(3)(A). At most, the cases plaintiffs rely upon establish that facilitating the illegal entry of an alien can constitute "bringing to," even if the defendant only physically accompanied the aliens from the United States border to their immediate destination.

Aslam,

936 F.2d at 755 (finding "meeting the aliens on the United States side of the Canadian border and being available to drive them to some interior point" sufficient to support a conviction under the "bringing to" prohibition);

see also

doc. no. 1 (Original Complaint), ¶¶ 1-2. When filed, the suit was originally styled such that Hall was the sole class representative.

See id.

at 1 . Plaintiff Rocha first appeared well over a year after the case was filed, in the Second Amended Complaint (filed May 2, 2008), on the very last day permitted under the Scheduling Order for addition of parties.

See

doc. no. 49 (Second Amended Complaint), at 1; doc. no. 46, at 3-4 (First Revised Scheduling Order). Individual defendant Gloria Fisher also was first named as such in the Second Amended Complaint. Doc. no. 49 (Second Amended Complaint), at 1. Additionally, original individual defendant Paul White was dismissed from this action, by stipulation but without explanation, on July 28, 2008.

See

doc. no. 80; Order Entered on July 28, 2008 (acknowledging the dismissal and terminating White).

. 18 U.S.C. § 1963 (a) provides, in part, that "[wjhoever violates any provision of section

*1119

1962 of this chapter shall be fined under this title or imprisoned not more than 20 years (or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment)....” The statute also contains extensive forfeiture sanctions.

See

id. §§ 1963(a)(1)-(a)(3).

. Doc. no. 49 (Second Amended Complaint), ¶¶ 2, 5-6.

. Doc. no. 104 (Defendants' Motion for Summary Judgment).

. Doc. no. 105 (Defendants' Motion to Exclude the Testimony of George Borjas).

. Doc. no. 106 (Defendants' Motion to Exclude the Testimony of James M. Johnston).

. Doc. no. 111, Ex. B (Plaintiffs' Third Rule 56(f) Affidavit).

. Doc. no. 149.

. Doc. no. 149, at 4.

See Anza v. Ideal Steel Supply Corp.,

547 U.S. 451, 461 , 126 S.Ct. 1991 , 164 L.Ed.2d 720 (2006) ("[A] claim is cognizable under [RICO’s private right of action provision, 18 U.S.C.] § 1964(c)[,] only if the defendant’s alleged violation proximately caused the plaintiff’s injury [to business property].");

see also Eleventh Circuit Pattern Jury Instructions

—Civil, Federal Claims Instruction 5.1, at 342 (2005) (stating that, to justify a verdict for a plaintiff in a civil RICO case, a jury must "decide whether the Plaintiff has suffered injury in [his/her/its] business or property as a ’proximate result’ of the Defendant’s pattern of racketeering activity. To be the `proximate result’ of such activity it must be proved that, except for such activity by the Defendant, the injury or damage claimed by the Plaintiff would not have occurred.").

see also

doc. no. 41 ("Plaintiff's selection of an expert(s), who will offer opinions about hiring illegal immigrants will be determined by numerous factors including: whether or not the Russellville facility used recruiters to locate potential employees, whether it had been subjected to enforcement actions by the federal officials for prior immigration violations, the degree to which the Defendants have autonomy to set hiring criteria[,] and[] the prevalence of illegal immigrants in the local area.”).

. Doc. no. 43, at 2.

. Doc. no. 46 (First Revised Scheduling Order), at 2 (emphasis in original);

see also

doc. no. 113 (Reply in Support of Motion to Exclude the Testimony of James M. Johnston); doc. no. 114 (Reply in Support of Motion to Exclude the Testimony of George Borjas), doc. no. 115 (Reply in Support of Motion for Summary Judgment) (all filed October 27, 2008).

See

doc. no. 126, ¶ 4;

see also, e.g., In re Pilgrim’s Pride Corp.,

401 B.R. 229, 232 (Bankr.N.D.Tex.2009) ("Debtors commenced these chapter 11 cases on December 1, 2008, by the filing of voluntary chapter 11 petitions.”).

See, e.g.,

doc. no. 126, ¶ 5 (“Pilgrim's Pride believes that payment of the Defendants’ defense costs and the engagement of the undersigned firm as counsel is permissible as an action in the ordinary course of its business as a debtor-in-possession under 11 U.S.C. § 363 (c).”);

Daubert

Hearing Transcript, at

*1126

272 ("Your Honor, in the bankruptcy court we had to seek authorization to even represent the debtor and its interest. The debtor is Pilgrim's Pride Corporation, which, as you know, is clearly paying our legal fees, although we represent the two individuals.”).

See

Clerk's Notice of October 8, 2009.

See Daubert

Hearing Transcript, at 271-72.

. Doc. no. 125.

. Doc. no. 126, ¶ 7-9. Defendants’ counsel noted that, not only was a clarification from the bankruptcy court necessary to ensure it was permissible to utilize Pilgrim's Pride to fund the defense of non-debtors (though obviously in an action that could heavily impact the bankruptcy estate), it was also necessary to ensure the other parties-in-interest in the estate did not object to the concurrent representations of Pilgrim's Pride in the bankruptcy proceedings and defendants in this action on the basis of potential conflicts of interest.

Id.

¶ 5;

see also

doc. no. 131, Ex. A, at 3 (copy of the Bankruptcy Court's order granting the motion to authorize use of the property of the bankruptcy estate to "pay legal costs of employees in pending RICO action” and permitting Baker & McKenzie to defend the employees; "ORDERED that [Baker & McKenzie, LLP] is authorized to defend the Employees in the RICO Action;

provided, however, ...

that [Baker & McKenzie] shall notify the Debtors if the concurrent representation ... rises to the level of a conflict of interest ... so that the Debtors can find replacement counsel for the Employees....”).

. Doc. no. 129;

see also

doc. no. 130, Ex. A (copy of the Motion for Authorization to Use the Property of the Estates filed in the Bankruptcy Court for the Northern District of Texas).

. Doc. no. 131.

. Doc. no. 134, at 1.

Id.

¶ 4.

Id.

¶ 5.

. Doc. no. 137.

Id.

at 1-2, 11 (“In conclusion, Plaintiffs respectfully request an order striking the expert Declarations (reports) of the Defendants’ two experts ... as well as their deposition transcripts.”).

See

doc. no. 85, at 2

(“Daubert

motions must be filed no later than September 22, 2008. No further extensions will be granted.”). Moreover, the position was entirely inconsistent with plaintiffs’ counsels’ prior suggestion that even the experts whose testimony defendants sought to exclude need not attend the hearing.

See

doc. no. 125, ¶ 2 (suggesting that their experts would appear only “if necessary”).

. Doc. no. 140.

. Doc. no. 141.

. The full docket of the Bankruptcy proceedings, which includes several thousand documents, is collected in the Bankruptcy Court for the Northern District of Texas, at

In re Pilgrim’s Pride Corporation, et. al.,

No. 08-45664(DML) (Bankr.N.D.Tex.).

See

doc. no. 141, at 2.

Id.

See id.;

doc. no. 141, Ex. A, at 2-3 (Order by the Bankruptcy Court Regarding Debtors’ Motion to Stay Certain Litigation).

. Doc. no. 141, at 2.

Id.

at 2-3.

Id.;

doc. no 141, Ex. C (Findings of Fact, Conclusions of Law, and Order of the Bankruptcy Court Confirming Debtors' Amended Joint Plan of Reorganization).

See

doc. no. 141, at 3;

see also

George J. Borjas,

The Labor Demand Cune

Downward Sloping: Reexamining the Impact of Immigration on the Labor Market,

118 Q.J. Econ. 1335 (2003) (a copy of which is available in the documents filed with the court as Borjas Deposition, Ex. 5).

. Borjas Report, ¶ 8.

Id.

¶¶ 32-38;

see

W. Paul Vogt,

Dictionary of Statistics & Methodology

239-43 (2d ed. 1999) (explaining that regression is a statistical technique to determine the relationship between two or more variables that results in an algebraic equation, often expressed graphically (in this case as a curve), that “best

*1129

summarizes the relationship between the dependent and independent variables”).

. Borjas Report, ¶ 36.

Id.

¶¶ 24, 26-28.

Id.n

16-21.

.See id.

¶¶ 39-41; doc. no. 111 (Response to Motion for Summary Judgment), at 49 (“Plaintiffs' damages expert, Prof. George Borjas, has concluded that the hiring of illegal immigrants at the Plant caused Plaintiffs' wages to be depressed.”).

.Additional factors the court may consider include:

(1) Whether the expert is proposing to testify about matters growing naturally and directly out of research he has conducted independent of the litigation, or whether he has developed his opinion expressly for purposes of testifying;

(2) Whether the expert has unjustifiably extrapolated from an accepted to an unfounded conclusion;

(3) Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting;

(4)Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

Fed.R.Evid. 702, advisory committee's notes, 2000 amends, (internal citations omitted).

. While this court never entered an order denominating Foster lead attorney, plaintiffs’ complaint seeks his designation as such, and he named himself as such before this court.

See

doc. no. 49 (Second Amended Complaint), ¶ 80;

Daubert

Hearing Transcript, at 4.

. Doc. no. 111, Ex. B (Plaintiffs’ Third Rule 56(f) Affidavit).

. Doc. no. 111 (Response to Motion for Summary Judgment), at 1, 58. There are two additional references to plaintiffs' Second Rule 56(f) petition, which was filed in conjunction with their opposition to defendants’ preliminary motion to exclude Borjas's testimony and for summary judgment.

Id.

(citing doc. no. 111, Ex. A (originally filed on Aug. 13, 2008, as doc. no. 91, Ex. H)). While the affidavit is titled "in support of Plaintiffs' Fed. R.Civ.P. 56(f) response to Defendants' Motion for Summary Judgment,” the court has tried in vain to discover some "response” other than the brief citations to the affidavit. Plaintiffs’ near silence regarding their petition for further discovery is all the more bewildering given that plaintiffs are clearly aware of the procedure and arguments that usually underpin such a request.

See

doc. no. 25,

passim

(providing seven pages of detailed argument as to why plaintiffs’ First Rule 56(0 petition, filed June 20, 2007, should be granted).

See Daubert

Hearing Transcript, at 279.

100

Daubert

Hearing Transcript, at 283-85, 294-96;

see also

doc. no. 111, Ex. B (Plaintiffs’ Third Rule 56(0 Affidavit), ¶¶ 6-7 ("Plaintiffs need additional discovery to fully explore the issue of [the impact of process automation at Pilgrim's Pride on employment levels at the Russellville facility] and to enable us to estimate the damages to the Plaintiffs.”).

101

. Doc. no. 111, Ex. B (Plaintiffs’ Third Rule 56(0 Affidavit), ¶ 7.

102

Id.

¶¶ 4-5.

103

Id.

104

. In

Bonner v. City of Prichard,

661 F.2d 1206, 1209 (11th Cir. 1981)

(en banc),

the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

105

. Doc. no. 111, Ex. B (Plaintiffs' Third Rule 56(f) Affidavit), ¶¶ 4-5.

106

See generally

doc. no. 111, Ex. A (Plaintiffs’ Second Rule 56(f) Affidavit) (incorporated by reference into Plaintiffs' Third Rule 56(f) Affidavit, doc. no. 111, Ex. B, at 2 n. 1); doc. no. 109 (Response to Motion to Exclude the Testimony of George Borjas), at 4-5 & nn. 8, 12-13.

107

.Doc. no. 109 (Response to Motion to Exclude the Testimony of George Borjas), at 5;

see also

doc. no. Ill (Response to Motion for Summary Judgment), at 50 (“Further, discovery has been limited in this complex case

(i.e.

five depositions per side).'').

108

. Doc. no. 111, Ex. B (Plaintiffs’ Third Rule 56(f) Affidavit), ¶ 4.

109

. Indeed, this court has discovered no fewer than seven cases in which plaintiffs’ counsel Foster has been involved, all of which were prosecuted prior to or contemporaneously with the present case, alleging identical legal theories and identical theories of wage depression proximately caused by the hiring of illegal immigrants.

E.g., Williams v. Mohawk,

465 F.3d 1277 (11th Cir.2006);

Baker v. IBP, Inc.,

357 F.3d 685 (7th Cir.2004) (upholding dismissal for failure to state a claim),

cert. denied

543 U.S. 956 , 125 S.Ct. 412 , 160 L.Ed.2d 318 ;

Mendoza v. Zirkle Fruit Co.,

301 F.3d 1163 (9th Cir.2002);

Marin v. Evans,

No. CV-06-3090-RHW, 2008 WL 5377915 (E.D.Wash. Dec. 3, 2008);

Brewer v. Salyer,

No. 1:06cv1324 AWI DLB, 2008 WL 905216 (E.D.Cal. Apr. 3, 2008);

Hernandez v. Balakian,

251 F.R.D. 488 (E.D.Cal.2008);

Trollinger v. Tyson Foods, Inc.,

543 F.Supp.2d 842 (E.D.Tenn.2008) (granting summary judgment to defendant poultry processor). At least two further suits including Foster as plaintiffs’ counsel and alleging identical theories were filed after this action and are currently pending in district courts in this circuit.

See Walters v. McMahen,

No. 1:10-cv-257-MEF-CSC (M.D.Ala. Mar. 22, 2010);

Broussard v. Maples,

No. CV-09-S-1563-N (N.D.Ala. Aug. 4, 2009). Counsel Foster also prosecuted two actions asserting the mirror image theory that a company’s hiring of illegal immigrants permitted them to pay workers lower wages, thereby giving them an advantage over competitors that satisfied the RICO proximately-caused-damages element.

Commercial Cleaning Services L.L.C. v. Colin Service Sys. Inc.,

271 F.3d 374 (2d Cir.2001);

A.L.L. Masonry Construction Co., Inc. v. Omielan,

No. 07 C 5761, 2009 WL 2214026 , at *7-8 (N.D.Ill. Jul. 23, 2009) (granting summary judgment for defendants in action in which "[p]laintiff’s theory is essentially that Defendants utilized a workforce of largely unauthorized workers to depress wages...."). There is yet a further case alleging a substantially similar theory and damages due to wage depression under a state law cause of action.

Perez-Farias v. Global Horizons, Inc.,

No. CV-05-3061-MWL, 2006 WL 2129295 (E.D.Wash. Jul. 28, 2006). Dr. Borjas provided testimony in at least five of those other cases.

E.g.,

Brief of Plaintiff-Appellants,

Williams v. Mohawk Industries, Inc.,

NO. 08-13446-G, 2008 WL 4735340 , at *51-52 (11th Cir. Oct. 6, 2008) ("The district court accepted affidavits from experts, including Professor George Borjas, a leading authority on the impact of illegal immigration, who testified that fundamental economic principles establish that an illegal increase in labor supply negatively impacts wage rates."); Defendants’ Motion to Strike Plaintiffs’ Expert Reports, at 20-21,

Broussard v. Maples,

No. CV-09-S-1564-NE (N.D.Ala. Aug. 12, 2010);

Marin v. Evans,

No. CV-06-3090-RHW, 2008 WL 4224393 , at *4 (E.D.Wash. Sept. 11, 2008);

Brewer v. Salyer,

2008 WL 905216 , at *4-5;

Trollinger v. Tyson Foods, Inc.,

No 4:02-CV-23, 2008 WL 305032 , at *8-10 (E.D.Tenn. Jan. 31, 2008) (restricting the use of Dr. Borjas’s testimony to the general theory of how immigration can deflate wages);

see also

Borjas Deposition, at 139-40 (Dr. Borjas testifying that he was retained in the

Mohawk, Marin, Brewer,

and

Trollinger

cases).

110

. E.g.,

William J. Baumol & Alan S. Binder,

Economics: Principles & Policy,

425-26 (2007) ("In the very short run, an increase in labor productivity (that is, of labor-saving technology) often causes a downward shift in the demand for labor, which holds down wages."); Pierre Cahuc & Andre Sylberberg,

*1134

Labor Economics,

565-66 (2004) ("If innovations make it possible to obtain the same production with less labor, we say they are labor saving...."). Both of these are university-level economics texts. The proposition that labor-saving technologies may decrease employment levels while increasing productivity is indeed well-established in the economics literature.

E.g.,

Alvin H. Hansen,

Institutional Frictions and Technological Unemployment,

45 Q.J. of Econ. 684, 684-97 (Aug. 1931); Joseph Alden,

First Principles of Political Economy

27-30 (1879) ("The immediate effect of the introduction of labor saving machinery is to lessen the demand for labor—to throw laborers out of employment."). This is a 19th Century text designed for "advanced classes in our public schools...."

Id. at preface. See also

doc. no. 109 (Response to Motion to Exclude the Testimony of George Borjas), at 3 (illogically, and incorrectly, asserting that "[f]rom an economist’s perspective the level of employment at the Plant

rose

during the relevant period through the introduction of labor saving devices which replicate the work of over 200 people, resulting in a large increase in output").

Cf.

Borjas Deposition, at 297 ("Q. Clearly if capital improvement had been made you might expect a decrease in employment and an increase in productivity? A. Definitely.").

111

See

Borjas Deposition, at 378-79; Welch Declaration, ¶ 22.

112

. Borjas Deposition, at 107.

113

E.g., id.

at 105, 118-19 (“I had no information on capital investment one way or the other it seems because there was nothing from the discovery itself except this TVA report as to whether capital investments that they had actually increased over time and

counsel said there was nothing to indicate that they had

.... ”) (emphasis supplied).

114

Daubert

Hearing Transcript, at 161-62.

115

See id.

at 282 (Plaintiffs’ counsel Foster answering the question whether he ever asked for the information Professor Borjas had requested and admitting the following: "That’s true. We didn’t formally ask for it. That's true. We didn’t formally ask for it.”).

116

. Borjas Deposition, at 100. Dr. Borjas's report itself cites a Tennessee Valley Authority report to Congress that

explicitly

stated that

*1135

the facility, then owned by Gold Kist, Inc., had made capital investments in production equipment. Borjas Report, ¶ 28.

117

. Borjas Deposition, at 106.

118

Id.

at 280-82.

119

Daubert

Hearing Transcript, at 281-84; doc. no. 109 (Response to Motion to Exclude the Testimony of George Borjas), at 4-5.

120

See

doc. no. 110, Ex. 5, at 3 (copy of Defendants' Response to Plaintiffs' Second Set of Interrogatories); doc. no. Ill, Ex. A (Plaintiffs' Second 56(f) Affidavit), ¶¶ 3-6 (recounting the course of the dispute).

121

See

doc. no. 110 (Response to Motion to Exclude the Testimony of James Johnston), at 4 (citing, as the discussions that "revealed” the overproduction, an email dated June 4, 2008 and a letter dated June 6, 2008, included as Exs. 6, 7, respectively, to document 110); doc. no. 105 (Motion to Exclude the Testimony of George Borjas), at 16-18 (detailing the progress of the dispute and its resolution, via teleconference, on June 5, 2008); doc. no. 105, Ex. P, at 1 (email between counsel explaining possible reasons for the “inflated numbers” of employees initially in First Johnston Report).