Meta is asking Judge Chabbria to allow them to conduct further expert depositions and to file a rebutal expert report about the process of “leeching” of torrented files (meaning sharing the files with others while also downloading them). Meta says that the Kadrey plaintiffs have invoked leeching in its motion for partial summary judgment, yet, due to late inclusion of this theory in the Third Amended Consolidated Complaint, Meta wasn’t able to have its expert testify to leeching during depositions.
I expect Judge Chhabbria to allow this request.
On February 26, 2025, without leave of Court, Plaintiffs purported to serve on Meta an expert report from a new expert, Dr. David Choffnes (the “Choffnes Report”), advancing a new distribution theory of copyright infringement based on “leeching.” Although styled as a “rebuttal report,” the Choffnes Report was based on Plaintiffs’ new “leeching” theory, which no Meta expert has yet had an opportunity to address.
The Choffnes Report focused on “leeching” and opined on the purported likelihood it occurred relying, in part, on a newly disclosed and flawed probability analysis.At the February 27, 2025 hearing, the Court instructed the parties to submit proposals to address Plaintiffs’ claim of prejudice due to Meta’s February 2025 production related to the inadvertent sequestration. On March 5, 2025, Plaintiffs submitted their proposal, seeking leave to serve the Choffnes Report, which they attached as an exhibit to their proposal. Dkt. 467. Plaintiffs also proposed a new request for production regarding torrenting, as well as a search of email and chat messages for four Meta employees who were not previously document custodians in the case. Finally, Plaintiffs requested a further 7-hour 30(b)(6) deposition directed to, among other things, Meta’s alleged “uploading of data during the torrenting process,” i.e., “leeching.”
