RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
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`File Name: 24a0075p.06
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`UNITED STATES COURT OF APPEALS
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`FOR THE SIXTH CIRCUIT
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`RJ CONTROL CONSULTANTS, INC.; PAUL E. ROGERS,
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`Plaintiffs-Appellants,
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`v.
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`MULTIJECT, LLC; RSW TECHNOLOGIES, LLC; JACK
`ELDER,
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`Defendants-Appellees.
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`
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`No. 23-1591
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`┘
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`Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
`No. 2:16-cv-10728—David M. Lawson, District Judge.
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`Decided and Filed: April 3, 2024
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`Before: SILER, COLE, and MATHIS, Circuit Judges.
`_________________
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`COUNSEL
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`ON BRIEF: Eric Scheible, Jonathan D. Sweik, FRASCO CAPONIGRO WINEMAN
`SCHEIBLE HAUSER & LUTTMAN, Troy, Michigan, for Appellants. David C. Purdue,
`PURDUE LAW OFFICES, LLC, Toledo, Ohio, for Appellee RSW Technologies, LLC. Richard
`L. McDonnell, INTREPID LAW GROUP PLC, Rochester, Michigan, for Appellees Multiject,
`LLC and Jack Elder.
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`_________________
`
`OPINION
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`_________________
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`MATHIS, Circuit Judge. This case involves the alleged infringement of a copyright on
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`software code used in an industrial control system. This is the third time this case has come
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`before us. RJ Control Consultants, Inc. and its sole shareholder, Paul Rogers (collectively,
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`“Plaintiffs”), appeal the district court’s exclusion of their proposed expert and the grant of
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`

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`No. 23-1591
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`RJ Control Consultants, Inc., et al. v. Multiject, LLC, et al.
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`Page 2
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`summary judgment to Multiject, LLC; its sole owner, Jack Elder; and RSW Technologies, LLC
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`(collectively, “Defendants”). In the first appeal, we reversed the district court’s grant of
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`summary judgment to Defendants on Plaintiffs’ copyright-infringement claim related to the
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`software code and remanded the case to the district court “for the taking of additional evidence.”
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`RJ Control Consultants, Inc. v. Multiject, LLC, 981 F.3d 446, 458–59 (6th Cir. 2020) (RJ
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`Control I). We dismissed the second appeal for lack of appellate jurisdiction. RJ Control
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`Consultants, Inc. v. Multiject, LLC, No. 22-1102, 2023 WL 2785764 (6th Cir. Apr. 5, 2023) (RJ
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`Control II). Because the district court did not abuse its discretion in excluding Plaintiffs’
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`proposed expert and because the district court did not err in granting summary judgment to
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`Defendants, we affirm.
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`I.
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`We previously summarized the facts underlying this matter as follows:
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`This is a copyright dispute over the use of software code and technical drawings
`for an industrial control system related to plastic injection molding. . . .
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`The district court characterized this as a “business dispute which soured a
`friendship.” That friendship was between . . . Rogers and . . . Elder. Rogers was
`the principal and sole shareholder of [RJ Control], a Michigan company that
`creates industrial control systems. Elder is the sole owner of [Multiject], a
`Michigan business which engineers and sells various industrial accessories related
`to plastic injection molding. Their friendship turned into a business relationship
`when Elder approached Rogers seeking Rogers’s expertise and assistance in
`developing a control system for an injection molding machine.
`
`In 2008, Rogers and Elder entered into an oral agreement whereby Rogers would
`develop a rotary turntable control system for Elder and Multiject. This turntable
`control system is the “brain” of the turntable, allowing the turntable to move and
`operate. RJ Control, through Rogers’s work, updated the control system design in
`2013, labeling the newest iteration as “Design 3.” The parties dispute the
`invoicing for Design 3.
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`In March of 2014, Elder asked Rogers for copies of Design 3’s diagrams as well
`as the software source code “in case something happened” to Rogers. Rogers
`disclosed that information to Multiject, believing that Multiject and Elder would
`not improperly use or disclose the information to third parties. Three days after
`providing that information to Multiject, Elder informed Rogers and RJ Control
`that Elder and Multiject would no longer need Rogers’s services and would
`instead use [RSW] for the assembly and wiring of the control systems. Elder said
`that Multiject would like to continue working with Rogers as a technical
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`

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`No. 23-1591
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`RJ Control Consultants, Inc., et al. v. Multiject, LLC, et al.
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`Page 3
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`consultant for the system design and that Multiject appreciated his expertise but
`that “this comes down to a business decision.”
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`Multiject and RSW—RJ Control’s replacement—had a long-standing business
`relationship with each other, and Multiject was already considering switching to
`RSW when it asked Rogers for the design diagrams. Elder claims that Multiject
`was increasingly concerned with Rogers’s pricing, worrying that Rogers was
`charging Multiject too much relative to competitors, at least to the extent Rogers
`was performing manual labor rather than designing the systems. For that reason,
`Elder and Multiject decided to “switch out” RJ Control and Rogers for RSW, for
`purposes of manufacturing rotary tables.
`
`On the same day that Elder informed Rogers that Multiject would be using RSW
`to assemble and wire the control systems, RSW sent Elder a quote that explicitly
`referenced the assembly and wiring of “RJ Table Control.” Elder, Multiject, and
`RSW used Design 3—both the software code and the technical drawings—in the
`assembly and wiring of new control systems. RSW did not make any changes in
`the design when it used Design 3. RSW claims that it did not know Rogers and
`RJ Control had separately designed Design 3 and did not know there was dispute
`as to whether Elder properly paid Rogers for that work; that is to say, RSW
`believed Multiject had permission to build the control systems using the software
`and technical drawings.
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`On February 17, 2016—nearly two years after Rogers initially supplied the
`software code and technical drawings to Elder—Rogers obtained two Copyright
`Certificates of Registration: one for the “Control System Turn Table Software:
`Design 3” (i.e., the software code) and another for “Control System Turn Table
`Schematics: Design 3” (i.e., the technical drawings).
`
`Nearly two weeks after receiving those copyrights, RJ Control brought suit
`against Multiject, Elder, and RSW. Over a year later, RJ Control filed an
`amended complaint, adding Rogers as a plaintiff. That amended complaint
`brought several federal and state law claims: (1) copyright infringement,
`(2) trademark infringement, (3) violation of the Michigan Consumer Protection
`Act, (4) breach of contract, (5) unjust enrichment, (6) conversion, and (7) tortious
`interference with contract/business expectancy.
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`RJ Control I, 981 F.3d at 450–52 (footnotes omitted).
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`
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`The district court granted summary judgment to Defendants on Plaintiffs’ copyright-
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`infringement and trademark-infringement claims and declined to exercise supplemental
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`jurisdiction over Plaintiffs’ remaining state-law claims. Id. at 452. Plaintiffs appealed the
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`dismissal of its copyright-infringement claim. Id. We affirmed the district court’s decision
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`related to technical drawings, but we reversed the grant of summary judgment on the software
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`copyright claim and remanded the case to the district court. Id. at 456–59.
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`

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`No. 23-1591
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`RJ Control Consultants, Inc., et al. v. Multiject, LLC, et al.
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`Page 4
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`On remand, the district court entered a supplemental scheduling order establishing
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`deadlines for expert disclosures and for filing dispositive motions and motions challenging
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`experts. The district court did not set a trial date.
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`
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`Plaintiffs timely served their expert disclosures, identifying David Lockhart of Sycamore
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`Technical Services, LLC and Sycamore Automation and Controls as their expert. Defendants
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`also timely served their expert disclosures. None of the parties produced expert reports with
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`their disclosures.
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`In April 2021, the magistrate judge ordered Multiject to “produce the code that was used
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`in each control produced by RSW.” R. 87, PageID 2738. Later that same month, the district
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`court extended the discovery and motions deadlines. It did not, however, extend the expert-
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`disclosure deadline and stated that “[a]ll other provisions of the supplemental scheduling order
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`remain in full force and effect.” R. 89.
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`Multiject and Elder moved to exclude Plaintiffs’ expert on the grounds that Plaintiffs
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`failed to properly disclose Lockhart because they did not produce an expert report. That same
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`day, Defendants filed motions for summary judgment. The district court granted the motion to
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`exclude and the motions for summary judgment.
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`The district court excluded Lockhart as Plaintiffs’ expert witness because Plaintiffs failed
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`to comply with their obligation to produce an expert report. And the court found that Plaintiffs’
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`failure to comply with its disclosure obligations was neither substantially justified nor harmless.
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`The district court then granted Defendants’ motions for summary judgment, finding that
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`Plaintiffs had “failed to put forth any expert evidence that identifies any specific portions of the
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`code that they claim are protectible.” R. 106, PageID 4118.
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`After Plaintiffs appealed, we dismissed the appeal for lack of appellate jurisdiction,
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`holding that the district court’s decision was not final because the court had not disposed of
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`Multiject and Elder’s amended counterclaim. RJ Control II, 2023 WL 2785764, at *2.
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`The district court then dismissed the pending counterclaim without prejudice. Plaintiffs
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`timely appealed.
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`No. 23-1591
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`RJ Control Consultants, Inc., et al. v. Multiject, LLC, et al.
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`Page 5
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`II.
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`We begin with some of the basics of copyright law. The U.S. Constitution authorizes
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`Congress to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their
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`respective Writings and Discoveries.” U.S. Const. art. I, § 8, cl. 8. With that authority, Congress
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`has passed laws granting exclusive copyrights to “original works of authorship fixed in any
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`tangible medium of expression.” 17 U.S.C. § 102(a). The term “original” means “the work was
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`independently created by the author” and “possesses at least some minimal degree of creativity.”
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`Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991) (citation omitted).
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`Copyright protection “grants an author an exclusive right to produce his work . . . to encourage
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`the production of works that others might reproduce more cheaply.” Google LLC v. Oracle Am.,
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`Inc., 141 S. Ct. 1183, 1195 (2021).
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`Although a copyright owner enjoys various exclusive rights, see 17 U.S.C. § 106, “[t]he
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`mere fact that a work is copyrighted does not mean that every element of the work may be
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`protected,” Feist Publ’ns, 499 U.S. at 348. To that end, Congress has placed limits on copyright
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`protection: “In no case does copyright protection for an original work of authorship extend to
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`any idea, procedure, process, system, method of operation, concept, principle, or discovery,
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`regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
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`17 U.S.C. § 102(b). Thus, “copyrights protect ‘expression’ but not the ‘ideas’ that lie behind it.”
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`Google, 141 S. Ct. at 1196; see Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d
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`522, 534 (6th Cir. 2004), abrogated on other grounds by eBay Inc. v. MercExchange, L.L.C., 547
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`U.S. 388 (2006). And, as we have explained, “the task of separating expression from idea in this
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`setting is a vexing one.” Lexmark, 387 F.3d at 535.
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`The Computer Software Copyright Act of 1980 extended copyright protection to
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`computer programs. Google, 141 S. Ct. at 1196. The Act defines a “computer program” as “a
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`set of statements or instructions to be used directly or indirectly in a computer in order to bring
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`about a certain result.” 17 U.S.C. § 101.
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`If a person improperly copies the work of a copyright owner, the copyright owner can
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`seek relief by pursuing a copyright-infringement claim. To succeed on a copyright-infringement
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`No. 23-1591
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`RJ Control Consultants, Inc., et al. v. Multiject, LLC, et al.
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`Page 6
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`claim, the claimant must prove two elements: “(1) ownership of a valid copyright, and (2)
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`copying of constituent elements of the work that are original.” Feist Publ’ns, 499 U.S. at 361.
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`The second element, at issue here, “tests whether any copying occurred (a factual matter) and
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`whether the portions of the work copied were entitled to copyright protection (a legal matter).”
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`Lexmark, 387 F.3d at 534. To determine if a work is entitled to copyright protection, courts
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`consider several “qualifications,” including two that are relevant here: the doctrines of merger
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`and “scenes a faire.” Premier Dealer Servs., Inc. v. Allegiance Adm’rs, LLC, 93 F.4th 985, 989–
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`90 (6th Cir. 2024). We discuss these doctrines in more detail in Part III.C below.
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`III.
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`
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`On appeal, Plaintiffs raise three issues: (1) whether we lacked jurisdiction to decide RJ
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`Control I; (2) whether the district court abused its discretion in excluding Lockhart as an expert
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`witness following Plaintiffs’ failure to provide an expert report; and (3) whether the district court
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`erred in granting summary judgment to Defendants. We take each issue in turn.
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`A.
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`
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`RJ Control I. Plaintiffs seek vacatur of our decision in RJ Control I. As mentioned
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`above, in RJ Control II, we dismissed Plaintiffs’ appeal for lack of jurisdiction because, at the
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`time of the appeal, Multiject and Elder’s amended counterclaim remained pending in the district
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`court. 2023 WL 2785764, at *2. This necessarily means that we also lacked appellate
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`jurisdiction when we decided RJ Control I because the amended counterclaim was pending at the
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`time of that decision as well. Therefore, we will vacate our decision in RJ Control I. Still, we
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`affirm the district court’s grant of summary judgment to Defendants on Plaintiffs’ copyright-
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`infringement claim related to the technical drawings for the reasons provided in RJ Control I, as
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`Plaintiffs do not argue that the RJ Control I’s decision on that claim was erroneous. 981 F.3d at
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`454–57.
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`
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`Plaintiffs also request that we vacate “all dispositive rulings by the district court based
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`on” RJ Control I. D. 37 at p.37. But there is no basis for doing so. And Plaintiffs offer none.
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`The district court had jurisdiction at the time(s) it issued any “dispositive rulings.”
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`

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`No. 23-1591
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`RJ Control Consultants, Inc., et al. v. Multiject, LLC, et al.
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`Page 7
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`B.
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`Motion to Exclude Plaintiffs’ Expert. Next, we consider whether the district court abused
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`its discretion in disqualifying Plaintiffs’ proposed expert witness. We review the exclusion of
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`expert testimony under Federal Rule of Civil Procedure 37(c)(1) for an abuse of discretion.
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`Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., P.C., 388 F.3d 976, 983 (6th Cir. 2004).
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`The “district court abuses its discretion when it relies on clearly erroneous findings of fact, when
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`it improperly applies the law, or uses an erroneous legal standard.” Bisig v. Time Warner Cable,
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`Inc., 940 F.3d 205, 218 (6th Cir. 2019) (quoting Stough v. Mayville Cmty. Schs., 138 F.3d 612,
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`614 (6th Cir. 1998)).
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`Federal Rule of Civil Procedure 26(a)(2)(A) requires parties to disclose expert witnesses.
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`If a party relies on a retained expert witness (like Lockhart), in addition to disclosing the expert,
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`the party must produce an expert report that includes the expert’s qualifications, opinions, and
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`the information the expert relied on for his opinion. Fed. R. Civ. P. 26(a)(2)(B).
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`Rule 26(a)(2) also outlines timing requirements for expert disclosures. The default
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`deadline for expert disclosures is “at least 90 days before the date set for trial or for the case to be
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`ready for trial.” Fed. R. Civ. P. 26(a)(2)(D)(i). The district court can modify the default
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`deadline by court order. Fed. R. Civ. P. 26(a)(2)(D).
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`The district court ordered the parties to disclose their experts by February 26, 2021.
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`Plaintiffs timely served their expert disclosures on Defendants by that deadline, identifying
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`Lockhart as their retained “expert in industrial control system design, engineering, and
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`integration including, but not limited to, control panel design, implementation, programming,
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`performance, and integration as well as concept development and evaluation.” R. 93-8, PageID
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`3341–42. But Plaintiffs did not produce an expert report. Instead, Plaintiffs stated that “[f]urther
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`substance and basis of Mr. Lockhart’s opinions will be provided once the [district c]ourt rules on
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`Plaintiff’s Motion to Compel Discovery [ECF No. 54], in accordance with the Court’s further
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`scheduling order(s), and in accordance with Fed. R. Civ. P. 26(a)(2) and Fed. R. Civ. P. 26(e).”
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`Id. at 3342.
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`No. 23-1591
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`RJ Control Consultants, Inc., et al. v. Multiject, LLC, et al.
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`Page 8
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`Plaintiffs never supplemented their expert disclosure or produced an expert report. And
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`though the district court later extended the deadline to complete discovery, it did not extend the
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`expert-disclosure deadline.
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`Because Plaintiffs failed to properly disclose Lockhart as an expert, the district court
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`excluded him under Rule 37(c)(1). That rule bars a party from using information or a witness “to
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`supply evidence on a motion, at a hearing, or at a trial” when the party fails to comply with Rule
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`26(a)’s requirements. Fed. R. Civ. P. 37(c)(1). The exclusion of such evidence is “automatic
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`and mandatory” unless the offending party can show that its nondisclosure was substantially
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`“justified or harmless.” Dickenson, 388 F.3d at 983 (quoting Musser v. Gentiva Health Servs.,
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`356 F.3d 751, 758 (7th Cir. 2004)); Roberts ex rel. Johnson v. Galen of Va., Inc., 325 F.3d 776,
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`782 (6th Cir. 2003).
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`We have explained that district courts should consider five factors when assessing
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`substantial justification and harmlessness. Those factors are:
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`(1) the surprise to the party against whom the evidence would be offered; (2) the
`ability of that party to cure the surprise; (3) the extent to which allowing the
`evidence would disrupt the trial; (4) the importance of the evidence; and (5) the
`nondisclosing party’s explanation for its failure to disclose the evidence.
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`Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015) (quoting Russell v. Absolute Collection
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`Servs., Inc., 763 F.3d 385, 396–97 (4th Cir. 2014)). “District courts have broad discretion in
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`applying these factors and need not apply each one rigidly.” Bisig, 940 F.3d at 219 (citation
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`omitted).
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`In considering these factors, we hold that the district court did not abuse its discretion in
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`excluding Lockhart as Plaintiffs’ expert.
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`1. Surprise to the Opposing Party
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`Plaintiffs contend that the Defendants should not have been surprised about Lockhart’s
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`identity and anticipated testimony based on their expert disclosure. Although Defendants were
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`aware of Lockhart’s identity and the general areas of his alleged expertise, they had no idea
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`about the nature of Lockhart’s anticipated testimony, other than he intended to cover “the
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`

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`No. 23-1591
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`RJ Control Consultants, Inc., et al. v. Multiject, LLC, et al.
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`Page 9
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`Plaintiffs’ code that was used in each control system . . . , industry standard practices for control
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`systems and other external considerations, as well as the unique nature of Plaintiffs’ code.” R.
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`93-8, PageID 3342. Plaintiffs assert that their disclosure was sufficient because they provided
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`Lockhart’s “opinion regarding RSW and Multiject’s infringing use of RJ Control’s software
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`code.” D. 37 at p.29. But this misconstrues Plaintiffs’ disclosure, which did not provide the
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`substance of any of Lockhart’s opinions or the bases and reasons for those opinions. Without
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`more, it would be difficult for Defendants to combat Lockhart’s opinions at trial. Indeed, the
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`rules require more. See Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008) (“‘Disclosure of
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`expert testimony’ within the meaning of the federal rule contemplates not only the identification
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`of the expert, but also the provision of a written report containing ‘a complete statement of all
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`opinions’ and ‘the basis and reasons therefor.’” (quoting Fed. R. Civ. P. 26(a)(2)(B))).
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`Additionally, as the district court pointed out, Defendants would not have had an
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`opportunity to depose Lockhart if the court denied the motion to exclude his testimony because
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`the discovery period had long been closed. See Fed. R. Civ. P. 26(b)(4)(A). Therefore,
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`Lockhart’s trial testimony would have been a complete surprise to Defendants. The first Howe
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`factor favors Defendants.
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`2. Ability to Cure Surprise & Disruption of Trial
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`Factors two and three also favor Defendants. The district court found that reopening
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`discovery was the only way to cure the surprise to Defendants. Even though the district court
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`had not set a trial date when it excluded Lockhart, it found that reopening discovery would cause
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`disruptions because its “trial docket [was] extremely congested due to circumstances arising
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`from the ongoing global pandemic,” such that the court’s “calendar restrictions [did] not permit
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`the luxury of setting cases for trial when motion practice is all that might be necessary to bring
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`the case to an efficient resolution.” R. 106, PageID 4109. Indeed, “trial courts have inherent
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`power to control their dockets. The timing of trials and docket control are matters best left to the
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`discretion of the trial court.” Anthony v. BTR Auto. Sealing Sys., Inc., 339 F.3d 506, 516–17 (6th
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`Cir. 2003) (citations omitted).
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`

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`No. 23-1591
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`RJ Control Consultants, Inc., et al. v. Multiject, LLC, et al.
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`Page 10
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`Keep in mind, this is not a scenario where Plaintiffs provided the expert report late. They
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`never provided the report. This means the district court would have had to reopen discovery
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`more than a year after the discovery deadline to allow Plaintiffs to produce the report and
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`provide Defendants an opportunity to depose Lockhart. The parties have been litigating this case
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`since 2016, and reopening discovery would reward Plaintiffs for their inability to obey the
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`district court’s orders while punishing Defendants. Cf. EQT Prod. Co. v. Magnum Hunter Prod.,
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`Inc., 768 F. App’x 459, 469 (6th Cir. 2019) (finding that allowing expert testimony would
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`require the non-defaulting party “to bear the effort and expense necessary to cure [the plaintiff’s]
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`failure to disclose,” which “would arguably reward [the plaintiff] for its untimeliness and does
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`nothing to deter similar conduct from future litigants”); Reese, 527 F.3d at 1265 (affirming the
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`district court’s exclusion of expert affidavit when disclosure “almost seven weeks after the close
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`of discovery foreclosed the defendants’ opportunity to depose [the expert] and to obtain an
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`expert of their own”).
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`Even though we have held that being able to cross-examine an expert during trial helps to
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`remedy surprise and limit disruptions during trial, EQT Prod., 768 F. App’x at 469 (citing Howe,
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`801 F.3d at 749), cross-examination here would not be meaningful unless the court reopened
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`discovery, which it was not obligated to do.
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`3. Importance of the Evidence
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`We have said that “this factor can cut both ways. The more important the proof, the
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`greater the effect of preclusion, but also the greater the harm in tardy disclosure.” Bisig, 940
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`F.3d at 220 (quotation omitted). The district court determined that it needed expert evidence to
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`resolve Plaintiffs’ copyright-infringement claim. Even if expert evidence is not always
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`indispensable to the resolution of copyright claims, Plaintiffs needed expert evidence to rebut the
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`expert testimony Defendants presented in support of their motions for summary judgment, which
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`the district court granted. See, e.g., EQT Prod., 768 F. App’x at 469 (finding that evidence was
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`crucial when the plaintiff “lost on a substantial portion of its claim” because of the exclusion of
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`evidence). This factor also weighs in Defendants’ favor.
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`No. 23-1591
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`RJ Control Consultants, Inc., et al. v. Multiject, LLC, et al.
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`Page 11
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`4. Explanation for Nondisclosure
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`Plaintiffs offer several reasons why their failure to provide an expert report was harmless
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`or substantially justified. None has merit.
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`First, Plaintiffs argue that no harm or prejudice resulted from their failure because
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`Defendants also did not produce reports for their experts. Plaintiffs’ reliance on the fact that
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`none of the parties provided expert reports does not show harmlessness or substantial
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`justification for its failure to do so, particularly considering Defendants were not required to
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`produce expert reports because they did not disclose any retained experts.
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`Second, Plaintiffs argue that Defendants should have done more outreach to obtain
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`Lockhart’s expert report. But Plaintiffs’ attempt to place the onus on Defendants ignores
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`Plaintiffs’ responsibility to abide by the district court’s orders and provide the required
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`disclosures. After all, Plaintiffs chose to disclose Lockhart as an expert witness, and it was
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`Plaintiffs’ responsibility to manage and prosecute their case.
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`Third, Plaintiffs claim it was “impossible for Plaintiffs’ expert to have reviewed and
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`analyzed this discovery to include in any report” by the expert-disclosure deadline because the
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`magistrate judge had not yet ruled on Plaintiffs’ motion to compel discovery of copies of “the
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`code that was used in each control produced by RSW.” R. 98, PageID 3369. This argument also
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`falls short: Rogers created the source code at issue and admitted he always had possession of it.
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`Thus, as the district court found, “the undisputed record contradicts [Plaintiffs’] assertion that
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`their experts’ analysis of the codebase was delayed or obstructed by any late discovery
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`production.” R. 106, PageID 4112. And Lockhart did not need the code copies to identify
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`portions of the source code that were protectable. At best, Lockhart could use the code copies to
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`determine whether Defendants copied portions of the source code. But that does not answer the
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`question of the protectability of the code.
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`Fourth, Plaintiffs’ argument that they operated in good faith that they had until 90 days
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`before trial to provide the report under Rule 26(a)(2)(D)(i)’s default expert-disclosure deadline is
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`unavailing. As mentioned above, the default deadline applies only when there is no stipulation
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`or court order addressing the deadline. See Fed. R. Civ. P. 26(a)(2)(D)(i). Here, the district
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`No. 23-1591
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`RJ Control Consultants, Inc., et al. v. Multiject, LLC, et al.
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`Page 12
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`court entered a scheduling order setting February 26, 2021, as the expert-disclosure deadline.
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`The district court’s deadline governed, not the default deadline in the rules. Even though the
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`district court modified some discovery deadlines, it never modified the expert-disclosure
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`deadline. And Plaintiffs never requested an extension of that deadline. Under these
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`circumstances, Plaintiffs were not substantially justified in failing to provide the report.
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`Fifth, Plaintiffs contend that they “reasonably misinterpreted” Rule 26(a)(2) and the
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`district court’s orders and made an “honest mistake” as to when the report was due, rendering
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`any error harmless and excusing them from the automatic sanctions of Rule 37(c)(1). R. 98,
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`PageID 3369, 3371. But even if Plaintiffs made an honest mistake about when the report was
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`due, their failure to provide the report was not harmless. Although Defendants had notice that
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`Lockhart was Plaintiffs’ proposed expert witness, Defendants had no information about
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`Lockhart’s qualifications, opinions, and the bases for such opinions. See Howe, 801 F.3d at 747.
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`*
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`*
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`*
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`In sum, application of the Howe factors supports the district court’s decision to exclude
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`Lockhart as an expert witness. Plaintiffs have failed to show that the district court abused its
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`discretion in disqualifying Lockhart, as the court did not rely on clearly erroneous factual
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`findings, misapply the law, or use an erroneous legal standard.
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`C.
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`Copyright-Infringement Claim. Plaintiffs contend that the district court erred in granting
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`Defendants’ motions for summary judgment. We review a district court’s grant of summary
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`judgment de novo. Joe Hand Promotions, Inc. v. Griffith, 49 F.4th 1018, 1021 (6th Cir. 2022).
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`Summary judgment is proper “if the movant shows that there is no genuine dispute as to any
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`material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
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`In response to a properly supported motion for summary judgment, the nonmoving party “must
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`set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
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`Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted).
`
`

`

`No. 23-1591
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`RJ Control Consultants, Inc., et al. v. Multiject, LLC, et al.
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`Page 13
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`
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`The resolution of Plaintiffs’ copyright-infringement claim turns primarily on whether
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`Plaintiffs needed expert evidence to defeat Defendants’ motions for summary judgment. We
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`have never held that we require expert evidence in all cases of copyright infringement of
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`software code, and we will not do so today. We instead leave the decision “to the discretion of
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`the trial court under Federal Rule of Evidence 702.” Stromback v. New Line Cinema, 384 F.3d
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`283, 295 (6th Cir. 2004); see also Kohus v. Mariol, 328 F.3d 848, 857 (6th Cir. 2003) (“Rather,
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`we leave it to the discretion of the district court to decide to what extent, if any, expert opinion,
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`regarding the highly technical nature of computer programs, is warranted in a given case.”
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`(quoting Comp. Assocs. Int’l, Inc. v. Altai, Inc., 982 F.3d 693, 713 (2d Cir. 1992))). We have,
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`however, opined that when considering the doctrines of merger and scenes a faire as they relate
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`to a complex technology, “expert testimony is desirable, if not required.” Premier Dealer, 93
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`F.4th at 990 (quotation omitted); Kohus, 328 F.3d at 856. And the district court is in the best
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`position to determine whether it requires expert testimony. See Kohus, 328 F.3d at 857 (“Expert
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`testimony will usually be necessary to educate the trier of fact in those elements for which the
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`specialist will look.”).
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`Here, the district court acted within its discretion by requiring expert testimony. The
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`court determined that “without expert testimony the plaintiff will have difficulty or it may be
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`even impossible for the plaintiff to establish a factual predicate for his argument that the software
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`code is protectable.” R. 113, PageID 4193. In doing so, the district court did not misconstrue
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`our guidance on the use of expert evidence. See Kohus, 328 F.3d at 856 (noting that expert
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`testimony would “likely be required” in that case to distinguish expression from idea under the
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`merger doctrine); Premier Dealer, 93 F.4th at 990.
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`Plaintiffs argue that the district court violated their due-process rights by failing to inform
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`them that expert evidence was required because “it was the duty of the court to give adequate
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`notice to the parties that such expert evidence would be necessary.” This argument fails as
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`Plaintiffs provide no jurisprudential support for it. And they do not acknowledge that the district
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`court had the discretion to require expert evidence under our caselaw. See, e.g., Kohus, 328 F.3d
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`at 856; Stromback, 384 F.3d at 295 (noting the district court’s discretion in allowing expert
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`testimony, especially where the subject matter is “complex or technical, such as a computer
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`

`

`No. 23-1591
`
`RJ Control Consultants, Inc., et al. v. Multiject, LLC, et al.
`
`Page 14
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`
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`program”). Also, the Federal Rules of Civil Procedure and Rules of Evidence provided Plaintiffs
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`further notice of their obligations regarding expert testimony.
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`And if that were not enough, Plaintiffs had multiple warnings that they may need expert
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`evidence in this case. The district court questioned (more than once) how it could determine
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`copyrightability of the software program without expert evidence. Plaintiffs also must have
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`known they needed i