Geraci
Kodak Graphic Communications Canada (KGCC) sought to preclude DuPont from seeking damages other than a $5.25 million down payment from KGCC and $975,000 in retooling expenses, as stated in DuPont’s 2009 initial Rule 26 disclosure. DuPont did not amend its disclosure. Its Sept. 2012 damages statement sought $12.573 million, comprising the downpayment and retooling expenses, and other items exceeding $6.34 million. The court precluded—as a Rule 37 sanction for failure to disclose—DuPont’s damages exceeding the downpayment and retooling expense amounts. Discussing Design Strategy Inc. v. Davis, the court rejected DuPont’s argument that information supporting its damages claim was disclosed to KGCC as part of the parties’ 600,000 pages of discovery. Additionally rejecting DuPont’s other two arguments claimed to support its belief that KGCC was properly notified of the damages sought, the court concluded—as in Design Strategy—that DuPont’s failure to disclose any computation that would put KGCC on notice of $6.34 million in damages—nearly doubling the amount of damages listed on DuPont’s initial Rule 26 disclosure—was neither justified nor harmless.
