United States District Court, W.D. Pennsylvania
Bissoon District Judge.
MEMORANDUM OPINION 
PARADISE BAXTER United States Magistrate Judge.
pending before this Court is a Motion to Strike
Plaintiffs' New Expert Report filed by Defendant
Aaron's Inc. and joined by Defendant Aspenway. ECF No.
469. For the reasons set forth below, the motion to strike
will be granted. !
Relevant Procedural History
3, 2011, Plaintiffs Crystal and Brian Byrd,
initiated this action. Plaintiffs allege that Defendants
utilized spying software ("PCRA software") to
illegally intercept, access, monitor, and/or transmit
electronic communications from their consumers' computers
in violation of 18 U.S.C § 2511, the Electronic
Communications Privacy Act ("ECPA").
the filing of the Original Complaint, this case has undergone
a lengthy procedural process, only a portion of which is
necessarily related herein. Currently, the operative
complaint is Plaintiffs' Corrected Third Amended
Complaint. ECF No. 296. Defendants remaining in this action
are Aaron's Inc. and Aspen Way Enterprises, Inc.
1, 2013, Plaintiffs filed a motion for class certification in
this action. ECF No. 174. Defendant Aaron's Inc. filed a
brief in opposition, [ECF No. 219] as well as an expert
report from Dr. Aviel Rubin ("Rubin Report"), on
August 19, 2013. ECF No. 220-4. Thereafter, Plaintiffs filed
a reply brief on September 23, 2013, along with their own
expert report from Dr. Micah Sherr ("Original Sherr
Report"), who reviewed the Rubin Report in preparation
for his rebuttal report. ECF No. 293.
Court issued a Report and Recommendation denying
Plaintiffs' motion for class certification on January 31,
2014, [ECF No. 319] which the District Court adopted as its
opinion on March 31, 2014. ECF No. 340. On appeal, the Third
Circuit Courts of Appeals reversed and remanded for further
consideration. ECF No. 364.
October 14, 2016, Plaintiffs filed their Renewed Motion to
Certify Class in this action. ECF 439. The September 2013
Sherr rebuttal report was included as an exhibit in support
of the motion for class certification. ECF No. 440-2.
Defendant Aaron's Inc. filed its Brief in Opposition on
November 4, 2016, which continued to rely upon the Rubin
Report. ECF No. 451. Thereafter, Plaintiffs submitted a reply
brief in support of their Motion to Certify Class, which
included a new expert report by Dr. Micah Sherr ("New
Sherr Report"). ECF No. 463; 463-5.
Aaron's Inc. filed a Motion to Strike Plaintiffs' New
Expert Report, arguing that the report is improper rebuttal
testimony, it is untimely by more than three years, and
Defendants will be prejudiced if it is allowed to
stand. ECF No. 469. Additionally, Defendant
Aaron's Inc. requests the Court to award Aaron's Inc.
its costs and attorneys' fees in connection with this
motion. Id. Plaintiffs filed a response brief in
opposition to Defendant's motion to strike on January 6,
2017. ECF No. 474. On January 24, 2017, Defendant Aaron's
Inc. filed a reply brief in further support of their motion
to strike. ECF No. 489. This matter is fully briefed and is
ripe for disposition by this Court.
Improper Rebuttal Evidence
Aaron's Inc. argues the New Sherr Report goes beyond the
permissible purpose of rebuttal evidence. Instead, Defendant
Aaron's Inc. believes Plaintiffs are attempting to
advance new theories and methodologies to account for
deficiencies in their original rebuttal expert report as it
pertains to their Rule 23(b)(3) "predominance"
argument. ECF No. 470, pages 10-11.
order to understand Defendant Aaron's Inc.'s
arguments in their motion to strike more clearly, it is
important to examine the procedural history of
Plaintiffs' pursuit of class certification, particularly
the Rule 23(b)(3) "predominance" arguments
throughout this litigation.
Plaintiffs filed their Initial Motion for Class Certification
on July 1, 2013, [ECF No. 174] Defendant Aaron's Inc.
filed a brief in opposition on August 19, 2013. Defendant
Aaron's Inc. argued that "Plaintiffs have wholly
failed to identify a common method of proof to establish
Defendants' liability under the ECPA." ECF No. 219,
pages 26-27. Further, Defendant Aaron's Inc. asserted
that Rule 23(b)(3) requires more than a simple contention
that the evidence of record will establish that the PCRA
software operated in the same manner to capture electronic
communications from each of the class members. Id.
support of their argument in opposition to the
Plaintiffs' motion for class certification, Defendant
Aaron's Inc. included an expert report from Dr. Aviel
Rubin, who concluded that it would be unreasonable to find
that each and every use of the PCRA software constituted an
"interception" of an electronic communication. ECF
No. 220-4, ¶ 46. Notably, the Rubin Report casts doubt
on the feasibility of differentiating which interceptions
were communications from non-communications. Id. at
Plaintiffs filed a reply brief on September 23, 2013, along
with their own Original Sherr Report. ECF No. 293.
Importantly, Dr. Sherr reviewed the Rubin Report in
preparation for his rebuttal report. As it pertains to Rule
23(b)(3), Plaintiffs argued they could present common
evidence regarding the design, capabilities and operation of
the PCRA software. ECF No. 293, pages 23-24. As such,
Plaintiffs averred a uniform jury instruction could be used
to allow the jury to broadly determine liability as to each
element of the ECPA, including what matters are electronic
communications, whether the PCRA software is capable of
contemporaneous interceptions, and what interceptions fit
within these findings. Id.
Original Sherr Report supported Plaintiffs' Rule 23(b)
Not all screenshots and keypresses correspond to a
communication and it is of course possible for a computer to
never be connected to the Internet. However, the DesignerWare
database provides a common means of determining which
customers connected their computers to the Internet and when
they did so. This follows from the behavior of Aaron's
PCRA/Detective Mode System: entries for a computer only
appear in the database if the PC Rental Agent software
running on that computer was able to contact the DesignerWare
database server via the Internet.
293-2, ¶ 65. However, the Original Sherr Report did not
set forth any claims or automated capabilities that would
preclude the necessary individualized ...