Full opinion text
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT’S MOTION TO STRIKE THE DECLARATIONS OF RONALD S. ALE-PIN AND BRETT L. REED, OVERRULING PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE, AND GRANTING IN PART DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGEMENT MCMAHON, District Judge. Plaintiff, Commercial Data Servers, Inc. (“CDS”) alleges that Defendant International Business Machines Corporation (“IBM”) committed federal and state antitrust violations under the Sherman Act §§ 1, 2 (15 U.S.C.A. §§ 1, 2), the Clayton Act § 3 (15 U.S.C.A. § 14), and the Don-nelly Act (N.Y. Gen. Bus. Law § 340). Plaintiff also brings claims for tortious interference with its relations with two vendors. Defendant denies these allegations, and counterclaims for breach of two contracts and copyright infringement. Defendant has moved for summary judgment under Fed.R.Civ.P. 56, on all of the plaintiffs claims except one claim of tortious interference. Defendant also moves for summary judgment on one of its breach of contract counterclaims. Both the plaintiff and the defendant have also made separate motions regarding the admissibility of evidence submitted by the other. Plaintiff objects to the exhibits submitted by defendant with its Motion for Summary Judgment, on the grounds that the exhibits were not properly authenticated. Defendant moves to strike two expert affidavits submitted by plaintiff with its Motion in Opposition to Summary Judgment, on the grounds that the affidavits are unsubstantiated and speculative, and untimely under Fed. R.Civ.P. 26. The motions are disposed of as follows: (1) I overrule plaintiffs objections to defendant’s exhibits; (2) I deny defendant’s motion to strike plaintiffs expert affidavits; (3) I grant defendant’s motion for summary judgment on Counts II through VI of CDS’s Second Amended Complaint, and deny summary judgement as to Count VII; and (4) I grant defendant’s request for summary judgment on its breach of contract counterclaim. FACTUAL BACKGROUND IBM is a New York corporation that maintains its principal executive offices in Armonk, New York. (Plaintiffs Second Amended Complaint, (“Plaintiffs Sec. Amd. Cmplt.”), ¶ 8.) IBM describes itself as a company that “uses advanced information technology to provide customer solutions through, inter alia, the sale of a variety of computer hardware and software products.” (Defendant’s Amended Answer and Counterclaims, p. 11.) CDS (which is currently doing business under the name “Xbridge Systems, Inc.”) is a California corporation that maintains its principal executive offices in California. (Plaintiffs Sec. Amd. Cmplt., ¶¶ 7, 10.) CDS was formed in 1996 by three former IBM executives. Id. at ¶22. According to CDS’s pleadings, CDS provided its founders with an “opportunity to compete with IBM.” Id. at ¶ 24. Over a number of years, IBM developed the S/390 computing platform, “a component-based computer system consisting of hardware and software products that are compatible and interoperable with the platform’s architecture.” (Plaintiffs Second Amd. Cmplt., ¶ 13.) The primary hardware component of the S/390 system is a central processing unit (“CPU”) board, referred to as the “P/390 Card.” Id. at ¶¶ 13, 26. The P/390 card enables the computer to run OS/390 operating system software, and other predecessor IBM operating system software. Other operating system software, such as software based on the UNIX or Windows NT operating systems, generally cannot run on S/390 platform computers. Likewise, S/390 operating system software and applications generally cannot be used on alternative platform computers. IBM builds and markets its own S/390 computer systems and products. However, it also has agreements with other companies under which they incorporate IBM technology into their products. Plaintiff CDS was one of these companies. In 1996, CDS entered into an Original Equipment Manufacturer (“OEM”) Agreement with IBM, under which CDS was able to purchase the P/390 card and S/390 operating software. Id. at ¶ 26. CDS purchased the software at the entry system level (“ESL”), which was IBM’s most favorable software pricing level. Id. ¶¶ 4, 20. The OEM Agreement allowed CDS to incorporate the P/390 Card into its own product, and licensed CDS to “preload” S/390 operating system software onto these CDS systems. Pursuant to this agreement, in 1997 CDS introduced the CDS 104 system (later renamed CDS 2000). Id. at ¶ 26. In 1997, CDS entered into another agreement with IBM, an Original Provider Agreement (“OPA”), pursuant to which CDS invested in IBM’s efforts to create an improved P/390 card — the “P/390e” card. Id. at ¶ 29. In 1998, the OEM Agreement was amended to allow CDS to purchase the P/390e card. (“OEM” Agreement and amendments, Ex. 23 to Burke Dec.) CDS then developed a product incorporating the P/390e card and the OS/390 operating system, which it marketed as the “CDS 2000e.” (Plaintiffs Sec. Amd. Cmplt. at ¶ 29.) In May 1998, IBM “pre-announced” a new product, the S/390 Integrated Server (also referred to as the “Planter”), scheduled for release in November 1998. Id. at ¶¶ 6, 69. At the same time, IBM also pre-announced an additional S/390 product, with higher processing power (estimated to be two times as fast). Id. Both products was based on the P/390E, and were designed to compete with CDS’s computers. Id. at ¶ 51, 52. IBM released the integrated server in November 1998, as scheduled. In September 1999, IBM released the “Multiprise 3000” servers, which provided processing power approximately six times greater than CDS’s product. IBM stopped offering the S/390 Integrated Server in February 2000. Id. at ¶ 71. The Multiprise products are still on the market. CDS alleges that IBM viewed CDS as a competitive threat and sought to “eliminate” them. Id. at ¶ 6. CDS alleges that the introduction of the S/390 Integrated Server, and subsequent decision to “drop[ ]” the server from the market, was intended to destroy the CDS market opportunity. Id. CDS also alleges that IBM refused to provide CDS with ESL pricing qualification except under anti-competitive terms and conditions which limited the marketing claims that CDS could make regarding its product. Id. at ¶¶ 44-45. IBM also allegedly “threatened” and/or “coerced” two value added resellers (“VARs”), Information Technology Co. (“ITC”) an¿[ Intelliware, in an effort to “prevent CDS from distributing the CDS 2000” through certain distribution channels. Id. at ¶¶ 56-66. PROCEDURAL HISTORY Plaintiffs original complaint in this action was filed on July 7, 2000. Counts I through VI of the original complaint alleged various antitrust violations, Count VII alleged tortious interference with prospective business relations, Counts VIII and IX alleged misappropriation of plaintiffs technology, and Count X alleged breech of the OPA Agreement. Defendant moved to dismiss Counts VIII through X and the Hon. Louis Stanton granted defendant’s motion, albeit with leave to replead. Commercial Data Servers, Inc. v. International Business Machines Corp., 2001 WL 277303 (S.D.N.Y. March 21, 2001)(“CDS' I”). Pursuant to the Court’s Rules for the Division of Business, the case was sent to White Plains and reassigned to me. On May 8, 2001, plaintiff filed its first amended complaint, which repeated the original Counts I through VII and replead-ed Counts VIII and IX, the misappropriation claims dismissed by Judge Stanton. Defendant moved to dismiss the complaint in its entirety. This Court granted defendant’s motion on October 9, 2001. Commercial Data Servers, Inc. v. International Business Machines Corp., 166 F.Supp.2d 891 (S.D.N.Y.2001)(“CDS' IF). The misappropriation claims previously dismissed by Judge Stanton, Counts VIII and IX, were dismissed with prejudice. The antitrust claims, Counts I through VI, were dismissed without prejudice, due to plaintiffs failure to properly allege a relevant market. Id. at 896. The tortious interference claim, Count VII, was dismissed without prejudice, due to plaintiff failure to identify any particular “VARs” that plaintiff had a relationship with who were intimidated by defendant. Id. at 898. On November 13, 2001, plaintiff filed a second amended complaint, realleging with greater specificity the claims that were dismissed without prejudice. Defendant moved a third time under Fed.R.Civ.P. 12(b)(6), this time seeking to dismiss the antitrust claims, Counts I through VI. On March 15, 2002, this Court dismissed Count I for failure to state a claim for per se violation of Section 1 of the Sherman Act. Commercial Data Servers, Inc. v. International Business Machines Corp., 2002 WL 1205740 (S.D.N.Y. March 15, 2002)(“CDS III”). I denied the motion as to the other claims. Thereafter, defendant answered the second amended complaint and asserted three counterclaims: (1) breach of the OPA; (2) breach of the OEM Agreement; and (3) copyright infringement. Discovery in this matter began in the summer of 2001, while the motion to dismiss the first amended complaint was pending. After accommodating the parties by twice extending the close of discovery, I finally ordered that all discovery must be completed on or before February 28, 2002. At the conclusion of discovery, the parties had deposed fourteen individuals and exchanged numerous documentary evidence, including contracts, copies of internal emails, marketing and sales materials, and internal strategy documents. CDS also provided IBM with responses to two sets of Requests for Admission and two sets of Interrogatories. Two days after I ruled on the final motion to dismiss, defendant filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56, seeking judgment in its favor as to the plaintiffs surviving claims against it (Counts II through VII) and as to its counterclaim for breech of the OPA. In addition to IBM’s summary judgment motion, each side has submitted motions challenging the admissibility of supporting documents submitted by its opponent with its summary judgment motion papers. I deal with the evidentiary motions first, and then turn to the merits. DISCUSSION I. Discovery Motions When ruling on a motion for summary judgment, courts need only consider evidence that would be admissible at trial. Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.1997). Each side asserts that materials submitted by the other are not admissible under the Federal Rules of Evidence and/or the Federal Rules of Civil Procedure, and thus should not be considered by this Court in deciding the summary judgment motion. In considering the admissibility of documents, the court appropriately draws all reasonable inferences in favor of the opposing party, as it is the burden of the moving party to prove that there is no genuine issue of material fact. See Wright & A. Miller, Federal Practice and Procedure § 2738, p. 342-45; see also U.S. v. Bell, 27 F.Supp.2d 1191, 1194 (E.D.Cal.1998); Western Land Corp. v. Crawford-Merz Co., 62 F.R.D. 550 (D.Minn.1973). A. CDS’s Objection to Exhibits Submitted by IBM Local Civil Rule 56.1 requires a party seeking summary judgment under Fed. R. Civ. Pro. 56 to include a statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Each statement of material fact must be followed by a “citation to evidence which would be admissible, set forth as required by the Federal Rule of Civil Procedure 56(e).” Accordingly, IBM’s Motion for Summary Judgment is supported by a Statement of Material Facts Pursuant to Local Rule 56.1 (“Statement of Material Facts”) and four volumes of exhibits attached to the Declaration of Kevin A. Burke, Esq., an attorney for IBM (“Burke Declaration”). The Burke Declaration states that true and complete copies of the following documents, all of which are referenced in the Statement of Material Facts, are attached: (1) excerpts of CDS’s Responses to Interrogatories and Requests for Admission; (2) excerpts of deposition transcripts; (3) the expert report of Carl Shapiro; and (4) other documents produced during discovery and referenced in the Statement of Material Facts, some of which were produced by IBM and some of which were produced by CDS. In total, there are eighty exhibits contained in the four volumes attached to the Burke Declaration. Plaintiff objects that the exhibits attached to the Burke Declaration have not been properly authenticated as required under Fed.R.Evid. 901(a). (Plaintiffs Objection to Defendant’s Evidence in Support of its Motion for Summary Judgment, submitted April 12, 2002, p. 1.) Plaintiff argues that Mr. Burke is not someone through whom the documents could be admitted into evidence at trial. Id. Defendant responds that plaintiffs general objection to the exhibits as a whole is improper under Fed.R.Civ.P. 7(b)(1), which requires that motions “shall state with particularity the grounds therefor.” (Defendant’s Response to Plaintiffs Objection to Defendant’s Evidence, submitted April 29, 2002, p. 1.) Defendant further responds that the documents are sufficiently authenticated because their form, their appearance, the circumstances through which they were acquired, and the record evidence indicate reliability. Id. In support of these assertions, defendant submits the Declaration of Keith R. Hummel (“Hummel Declaration”), an attorney for IBM, which attaches portions of deposition transcripts in which CDS witnesses discuss various CDS documents which were attached to the Burke Declaration. Defendant also submits the Declaration of Joanne Richardson (“Richardson Declaration”). Ms. Richardson, an IBM Legal Analyst employed by the company for twenty two years, attests that twenty five of the exhibits are IBM documents maintained in the ordinary course of business that were produced to CDS pursuant to document requests in this litigation. Finally, defendant submits a table, attached as an exhibit to its response to plaintiffs motion, which describes each exhibit in the Burke Declaration and provides the basis for the authentication of the exhibit. (“Authentication Table”). Plaintiff replies that it is unfair for IBM to attempt to authenticate documents in its opposition papers that it did not initially authenticate, and maintains that the exhibits are still are not properly authenticated. (Plaintiffs Reply to Defendant’s Response to Plaintiffs Objection to Evidence, submitted May 16, 2002, p. 2.) As a preliminary matter, I reject Plaintiffs contention that it is “unfair” for IBM to submit, and for the court to consider, the Richardson Declaration. I consider both the Richardson and Hummel Declarations to be supplemental affidavits to the Burke Declaration, and under F.R. Civ. P. 66(e), the Court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. While I agree with defendant that plaintiffs motion is very broad, the grounds are stated with sufficient particularity — plaintiff is objecting to my considering the documents attached to the Burke affidavit on the grounds that they have not been properly authenticated. However, since plaintiff has not objected on a document-by-document basis, I shall respond by discussing the admissibility of categories of documents. See Kendrick v. Sullivan, 766 F.Supp. 1180, 1192 n. 1 (D.D.C.1991) (noting that defendant’s arguments against plaintiffs documentary evidence in opposition to summary judgment were overly broad and concluding that the court was compelled to respond to the motion in general terms). 1) CDS’s Responses to Interrogatories and Requests for Admission The Burke Declaration states that Exhibits 1 through 5 are true and complete copies of CDS’s Responses to Interrogatories and Requests for Admission. Mr. Burke, as an attorney for the firm representing IBM, has personal knowledge that the documents attached were obtained during discovery by the firm. Generally, under Fed.R.Civ.P. 56(c), pleadings, depositions, answers to interrogatories, and admissions on file can be utilized by the court in considering a summary judgment motion. Under F.R. Evid. 901(a), the requirement that documents be authenticated “is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.” Under F.R. Evid. 901(b), testimony of a witness with knowledge provides appropriate authentication. Mr. Burke’s declaration that these documents are true and correct copies of CDS’s responses constitutes testimony by a witness with knowledge of what the firm received from its opponent in response to legitimate discovery requests. In addition, under F.R. Evid. 901(b)(4), authentication is provided by “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances.” Each of the challenged documents contains the caption of the instant case, is signed by the plaintiffs attorney, is available to both parties in the action, and is being submitted to the Court by the defendant’s attorney with a declaration that it is a true copy. Plaintiff, who is clearly in the position to know if the exhibits are not authentic copies of its Responses to Interrogatories and Requests for Admission, has not objected that the exhibits are not authentic, just that they are not authenticated. The characteristics of Exhibits 1-5, and the surrounding circumstances, indicate that these are authentic documents. 2.) Excerpts of Deposition Transcripts The Burke Declaration states that Exhibits 6 through 22 are true and complete copies of excerpts of transcripts from depositions taken in this action. Depositions are expressly recognized by Fed. R.Civ.P. 56(c) as relevant to consideration of a summary judgment motion. Mr. Burke has personal knowledge that the documents are deposition transcripts taken during the discovery period of this action. In fact, either Mr. Burke himself or one of his colleagues from Cravath, Swain & Moore personally attended each of these depositions. Therefore, his declaration that the exhibits are true and correct copies of discovery materials is testimony of a witness with knowledge, which provides authentication under F.R. Evid. 901(b). In addition, I find that the appearance of the documents, each of which includes a cover page and the title page, and the circumstances through which they are presented to the Court in this action, authenticates them under F.R. Evid. 901(b)(4). Finally, I note that according to the cover page of each transcript, plaintiffs counsel appeared at each of these depositions. Plaintiff never claims that the cover page is a fabrication (that plaintiffs counsel was not there) or asserts that its counsel was there and that the transcripts are not accurate depictions of what took place. Again, plaintiff is in a position to know if the documents are not authentic, but makes no such claim. S.) The Expert Report of Carl Shapiro The Burke Declaration states that Exhibit 80 is a true and complete copy of the Expert Report of Carl Shapiro, referenced in IBM’s Statement of Material Facts. Plaintiff does not challenge the admissibility of the defendant’s expert report based on its substance, only for lack of any authentication. Mr. Burke is competent to testify that Exhibit 80 is a true and complete copy of IBM’s expert’s report. At trail, the expert could be expected to testify as to the contents of the report. Further, I note that CDS has itself submitted Mr. Shapiro’s expert report into evidence, as Exhibit 15 to the Declaration of Steven N. Williams. CDS thus challenges a document for lack of authentication, while at the same time submitting an identical copy of the document. Such tactics unnecessarily occupy the Court’s time on matters not touching the merits of this case. Jp.) Additional Documents Produced by IBM and CDS Over two thirds of the exhibits attached to the Burke Declaration are documents produced during discovery by IBM or CDS, including letters, contractual agreements between the parties, and marketing materials. The Authentication Table, attached as an exhibit to defendant’s response to plaintiffs objection motion, provides the basis for authentication of each of these documents. As to the CDS documents, the Authentication Table notes that all of these documents were produced by CDS in the course of discovery, and bear CDS production numbers. In addition, the Table notes that many of the CDS documents are also authenticated by CDS’s Response to IBM’s Second Set of RFAs, or by CDS employees during their depositions. The Hummel Declaration, cross-referenced by the Authentication Table, includes as exhibits the specific deposition excerpts in which certain documents were discussed. It is disingenuous and wasteful for plaintiff to object that its own documents are not authenticated, and thus inadmissible at trial and on summary judgment. The appearance of these documents and the circumstances surrounding this motion— most importantly the fact that the plaintiff is in the best position to know if they are authentic and that they have never claimed that they are not — show that these are authentic documents. See F.R. Evid. 901(b)(4) The IBM documents are authenticated by the sworn Declaration of Joanne Richardson, an IBM employee for over twenty two years, who attests that each of the documents is a true and complete copy of an IBM document maintained by IBM employees in the regular course of business. As discussed above, under F.R. Evid. 901(b), testimony of a witness with knowledge provides appropriate authentication for documents. Ms. Richardson is a witness with knowledge, and her sworn affidavit provides authentication for the IBM documents. I thus find that all of the documents challenged by plaintiff as “unauthenticated” meet either the requirements of Fed.R. Evid 901(b) or 901(b)(4). There is sufficient evidence of their authenticity for the court to consider these documents on this motion for summary judgment. See Bieda v. J.C. Penney Communications, Inc., 1995 WL 437689, *9 n. 2 (S.D.N.Y. July 25, 1995) (denying defendant’s motion to strike plaintiffs documents from consideration in a summary judgment motion when defendants did not challenge the authenticity of the documents, but rather the plaintiffs ability to authenticate them, and finding that there was sufficient evidence of authenticity based on the appearance of the documents, the defendant’s interrogatory responses regarding the documents, and the fact that defendant had produced the documents). The court deems the documents authenticated and considers them. B. IBM’S Motion to Strike CDS Declarations On April 12, 2002, plaintiff filed its opposition to defendant’s motion for summary judgment, along with supporting documents, including the expert affidavits of Ronald S. Alepín and Brett L. Reed. On April 29, 2002, defendant submitted a motion to strike the expert affidavit of Mr. Alepín and a separate, yet very similar, motion to strike the expert affidavit of Mr. Reed. Both motions argue that the affidavits should be stricken on two grounds. First, defendant claims that the opinions expressed in each expert’s affidavit are so different from the opinions expressed in his “Rule 26 Report” (report pursuant to Fed.R.Civ.Pro. 26) that the affidavit is, in essence a new and untimely expert report. Second, defendant claims that each expert’s opinion is unsubstantiated and speculative, and argues that the affidavits should thus be disregarded as conclusory. Plaintiff argues that both declarations are consistent with the underlying expert reports and deposition testimony, and that both experts’ opinions are properly supported. (Plaintiffs Opposition to Defendant’s Motions to Strike Declarations of Ronald S. Alepín and Brett L. Reed, submitted May 16, 2002.) I conclude that Mr. Alepin’s Affidavit is entirely consistent with his timely Rule 26 Report. Mr. Reed’s Affidavit goes well beyond his Rule 26 report. However, I will overlook that for purposes of this motion, because the failure is harmless. Neither affidavit is impermissibly speculative. Fed.R.Civ.P. 26(a)(2)(B) (“Rule 26(a)(2)(B)”) requires that an expert’s report contain “a complete statement of all opinions to be expressed and the basis and reasons therefor...” It is essential that the expert’s opinions be known to the other party, so that they may properly prepare their opposition. As a result, under Fed.R.Civ.P. 37(c)(1) (“Rule 37(c)(1)”), “a party that without substantial justification fails to disclose information required by Rule 26(a)... is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed.” Defendant provides examples of several cases where courts have held that affidavits containing opinions that were not disclosed in a Rule 26 report would be inadmissible at trial, and thus should not be considered on a motion for summary judgment. See Brumley v. Pfizer, Inc., 200 F.R.D. 596, 603-604 (S.D.Tex.2001) (affidavit stricken to the extent that it went beyond opinions expressed in the Rule 26 report); Baker v. Indian Prairie Cmty. Unit, School Dist. No. 204, 1999 WL 988799, *2-*3 (N.D.Ill. Oct. 27, 1999) (“The Court will not allow [Plaintiffs] to ambush Defendants with new expert opinions after the expert disclosure deadline and after they filed or summary judgment.”); Penland v. BIC Corp., 796 F.Supp. 877, 881 (W.D.N.C.1992) (striking expert affidavits filed in opposition to summary judgment because they “contain[ed] purported expert opinion not previously disclosed ... as required by the Federal Rules of Civil Procedure”). I have reviewed the Rule 26 Reports and expert affidavits of both Mr. Alepín and Mr. Reed. In the light most favorable to plaintiff, I find that Mr. Alepin’s affidavit is substantially similar to his Rule 26 Report, that the opinions therein would be admissible at trial (albeit subject to cross-examination), and that the affidavit may be considered on the motion for summary judgment. Mr. Reed’s affidavit, however, offers his opinions on an entirely different topic than the one discussed in his Rule 26 report. The Reed Affidavit opines on switching costs and “lock-in” of IBM customers. All of the opinions and analysis in the Rule 26 Report relate to damages, via lost opportunities to CDS or sales by IBM. Plaintiff insists that “analysis of the lock-in was this [sic] explicitly and implicitly part of his entire analysis of this case,” and that the subject matter is “coextensive.” (Plaintiffs Memorandum in Opposition to Defendant’s Motion to Strike the Expert Affidavits, p. 5.) It may be that Mr. Reed analyzed whether IBM locked-in its customers via high switching costs and simply omitted that analysis from his report. Or it may be that he assumed the fact (lock-in) and proceeded from there. Either way, Mr. Reed’s Rule 26 Report does not discuss the issue of lock-in and does not offer any opinions on that subject, including opinions about how the asserted lock-in came into being. It is simply and solely a damages analysis — number crunching. In contrast, his expert affidavit provides detailed opinions regarding how IBM S/390 customers were allegedly locked into uneconomical IBM systems by high switching costs, how IBM allegedly took advantage of these customers, how IBM engaged in other allegedly “anticom-petitive” conduct, and why the relevant market for anti-trust considerations should be limited to those customers “loeked-in” to the S/390 system. Plaintiff further argues that “the examination of Mr. Reed on [the topic of lock-in] covers many pages of his deposition.” Id. But as defendant correctly notes, deposition testimony on a topic does not cure a failure to provide Rule 26 disclosure. See e.g., Ferriso v. Conway Org. 1995 WL 580197, at *2-3 (S.D.N.Y. Oct. 3, 1995) Moreover, Mr. Reed’s deposition testimony about “lock-in” is very general, and is not couched in the form of opinions about how any lock-in arose or what caused it. He assumes that there is a lock-in effect for the purposes of calculating damages. Whether or not these opinions were “implicitly” part of Mr. Reed’s analysis, he never explicitly discussed them in his Rule 26 Report or at his deposition. The topics of damages and lock-in/switching costs are certainly interrelated in some respects, but they are not “coextensive.” However, failure to comply with Rule 26(a) does not always provide a basis for sanctions under Rule 37(c)(1). As noted above, the text of Rule 37(c)(1) provides that the evidence should be precluded only if the party that failed to disclose the information is “without substantial justification” and if the failure is not “harmless.” Fed.R.Civ.Pro. 37(c)(1). In addition, courts in this Circuit have considered imposition of sanctions under Rule 37 a “drastic remedy” that should only be applied “in those rare cases where a party’s conduct represents flagrant bad faith and callous disregard” of the Federal Rules. See e.g., Johnson Elec. N. Am. v. Mabuchi Motor Am. Corp., 77 F.Supp.2d 446, 458 (S.D.N.Y.1999); Sterling v. Interlake Industries, Inc., 154 F.R.D. 579, 587 (E.D.N.Y.1994). Here the failure is harmless, because Mr. Reed’s Affidavit does not create a genuine issue of material fact that prevents me from granting IBM’s motion. Therefore, the better part of valor is to consider it rather than strike it. Defendant also argues that the Alepín and Reed affidavits consist of “speculative and unsubstantiated assertions” that are not properly supported by “underlying bases or citation” and thus do not satisfy Rule 26(a)(2)(B). Defendant urges the court to conclude that these expert opinions do not create any genuine issues of material fact, and thus should not be considered on summary judgment, citing Raskin, 125 F.3d at 66-68 and Virgin Atlantic Airways, Ltd. v. British Airways, PLC, 69 F.Supp.2d 571, 579-80 (S.D.N.Y.1999). Rather than doing that, I have chosen to consider them — and having done so, I conclude that they do not create any genuine issue of material fact. II. Summary Judgment Standard Defendant has moved for summary judgment pursuant to Fed.R.Civ.P. 56(c), which allows the court to grant judgment in a movant’s favor when there is no genuine issue of material fact. In considering any summary judgment motion, the court draw all reasonable inferences in the non-movant’s favor, but in an antitrust case, “those inferences must be reasonable in light of competing inferences of acceptable conduct.” Tops Markets, Inc. v. Quality Markets, Inc., 142 F.3d 90, 95 (2d Cir.1998) citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) “By avoiding wasteful trials and preventing lengthy litigation that may have a chilling effect on pro-competitive market forces, summary judgment serves a vital function in the area of antitrust law.” Id. citing Matsushita Elec., 475 U.S. at 593-94, 106 S.Ct. 1348 (additional citations omitted). Where the nonmoving party has the burden of proof at trial, “it must go beyond the pleadings to demonstrate the existence of some specific facts that create a genuine issues as to those matters for which it has the burden of proof.” Id. citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). III. The Relevant Product Market CDS alleges that defendant violated the Sherman Act and the Clayton Act, federal antitrust laws, and the Donnelly Act, a New York state antitrust law that mirrors the Clayton Act. The threshold issue in considering each of these antitrust claims is determining the relevant market. Ber-key Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 268 (2d Cir.1979)(“[T]he first step in a court’s analysis must be a definition of the relevant market.”)(citing United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391-93, 76 S.Ct. 994, 100 L.Ed. 1264 (1956)). CDS alleges that the relevant market for purposes of this litigation includes only “low-end IBM mainframe S/390 computers with processing power of 10 MIPS, or less.” (Plaintiffs Sec. Amd. Cmplt. ¶ 74.) CDS’s clarifies that not all users of “10 MIPS, or less” S/390 computers belong in the relevant market. (Reed Aff., ¶ 12.) Rather, CDS claims that the market includes only some sub-set of users who “are locked-in to the IBM platform” due to the high costs of switching to a non-IBM platform. Id. Plaintiff argues that these IBM customers had invested so much time and money in S/390 equipment and software applications written for the S/390 system that they faced prohibitively high switching costs, and were thus “loek[ed]-in” to the S/390 system. Id. at 74-75. At the motion to dismiss stage, this Court found that plaintiff properly alleged that switching costs associated with changing platforms were prohibitive, which gave rise to a theoretically rational explanation for a distinct market at the “low-end.” CDS III, 2002 WL 1205740 at *6-7. Thus, the Court concluded that plaintiffs market definition was “plausible on its face.” But I also noted, “whether plaintiff will succeed in proving the alleged market is a question for a later date.” Id citing Todd v. Exxon Corp., 275 F.3d 191, 204-205 (2d Cir.2001). That “later date” has arrived. And while plaintiffs definition of the relevant market was sufficient as an allegation, plaintiff has failed to advance evidence that creates a genuine issue of material fact concerning the relevant market. A. Standard for Relevant Product Market Definition The relevant product market is “the area of effective competition” within which a firm’s products compete. AD/SAT v. Assoc. Press, 181 F.3d 216, 227 (2d Cir.1999) quoting Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961). The market must include all products “that have reasonable interchangeability for the purposes for which they are produced — price, use and qualities considered”. United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 404, 76 S.Ct. 994, 1012, 100 L.Ed. 1264 (1956); see AD/SAT, 181 F.3d at 227. Products are “reasonably interchangeable” where there is sufficient cross-elasticity of demand, i.e., where consumers would respond to an increase in the price of one product by purchasing another product. See AD/SAT, 181 F.3d at 227. Products need not be identical, however, to be included in the same market, complete functional overlap is not required. See United States v. Grinnell Corp., 384 U.S. 563, 572-73, 86 S.Ct. 1698, 1704-05, 16 L.Ed.2d 778 (1966); E.I. du Pont de Nemours, 351 U.S. at 393, 76 S.Ct. at 1006 (“one can theorize that we have monopolistic competition in every nonstandardized commodity with each manufacturer having power over the price and production of his own product. However, this power ... is not the power that makes an illegal monopoly. Illegal power must be obtained in terms of the competitive market for the product.” (footnote omitted)). B. A Reasonable Trier of Fact Would Have to Conclude that S/390 Platform Computers Are Reasonably Interchangeable with UNIX and Windows NT Platform Computers. IBM argues that the record includes evidence of vigorous competition, based on reasonable interchangeability and cross-elasticity of demand, between S/390conipatible computers and alternative platform computers, primarily those compatible with the UNIX or Windows NT operating systems. IBM documents acknowledge the competitive impact that alternate platform computers, particularly those incorporating UNIX or Windows NT operating systems, had on the sale of S/390 platform computers. (See e.g., “S/390 Strategy” Document, p. 5, September 1995, Ex. 41 to Burke Dec. (“Fierce competition from alternate platforms has eaten into the potential growth of the S/390 workload.”); “Alternate Platform Market Model Survey Data, U.S. and Europe,” January, 1995, Ex. 42 to Burke Dec. (finding that S/390 customers were projecting movement of “significantly more” workload off the S/390 platform over the next few years); “S/390 Strategy Document, p. 1, July, 1996, Ex. 47 to Burke Dee.” (noting accelerating competitive pressures, predicting that UNIX vendors will “continue their strategy” to replace S/390 solutions and predicting that “in the future, the greatest threat will come from NT.”).) CDS itself alleges that IBM’s favorable entry server level (“ESL”) pricing for S/390 products was offered in response to the price competition faced from UNIX and Windows, though it does so while alleging that IBM was seeking to “lock-in” new customers by enticing software developers to write S/390 software applications. (Plaintiffs Second Amd. Cmplt. ¶ 20.) CDS’s own sales and marketing documents identified UNIX and Windows NT based systems as “Substitutes” for CDS’s own S/390-compatible products (“CDS Systems”). (“Commercial Data Servers Marketing Strategy and Implementation Plan,” Ex. 30 to Burke Dec.; “Commercial Data Servers Sales Strategy and Implementation Plan,” Ex. 31 to Burke Dec.) These documents state that S/390-compatible manufacturers were “under severe competitive pressures from UNIX and in the near future this competition will also come from NT”. (Id.) In addition, CDS’s marketing material and private placement memoranda acknowledged cross-platform competition faced by the CDS Systems. (CDS Executive Summary, Ex. 29 to Burke Dec.; CDS Private Placement Memorandum, July 1998, Ex. 32 to Burke Dec.; CDS Private Placement Memorandum, September 1995, Ex. 33 to Burke Dec.; CDS Private Placement Memorandum, September, 1998, Ex. 34 to Burke Dec.) Both CDS and IBM witnesses attested to the existence of vigorous competition between S/390 platform computers and UNIX and Windows platform computers. For example, Ron Hankison, CDS’s corporate designee, testified: We would, no matter where we went, find customers that had an intention or desire to move away from 390 into some other architecture, and we’d run into UNIX and NT as an alternative. (Hankinson Dep., 30:9-13, Ex. 10A to Burke Dec. accord Holstrom Dep., 67:8-22, Ex. 11A to Burke Dec.; Smarling Dep., 35:22-36:2, Ex. 22A to Burke Dec.) Similarly, Robert Port, IBM Manager of S/390 Sales Support, testified: [T]he real competition here was all the other alternative platforms and choices the customer had for deploying their applications. So, I view in this Sun was a competitor, HP is a competitor, DEC is a competitor. Unysis is a competitor. Intel based alternatives, some companies like Compaq were competitors. This was a very, very competitive environment. .. (Port Dep., 172:17-173:3, Ex 17B to Burke Dec.); accord Brogan Dep., 219:6-12, Ex. 7E to Burke Dec. (IBM asserts that all of the competitors identified by Mr. Port sold non-S/390 platform computers.). Mr. Port further stated: The competition was the Unix vendors and the [Windows] NT vendors. Those were the guys we were really competing against. (Port Dep., 229:18-20, Ex. 17D to Burke Dec.) CDS itself alleges that, under certain circumstances (e.g., with respect to new workload), S/390-compatible computers competed directly with UNIX and Windows-compatible computers. See Plaintiffs Second Amd. Cmplt. ¶¶ 18-19 (“competing systems offered by Windows and Unix, among others, were an increasingly tempting alternative”; “Windows NT and UNIX... [represented] cost-effective al-ternativefs].”) CDS even admits that it lost customers to computers compatible with the UNIX and Windows NT operating systems. (CDS’s Responses to IBM’s Second Set of RFAs, Nos. 30, 31 (Ex. 3); Holstrom Dep., 55:16-24, Ex. 11A to Burke Dec.) The record contains ample evidence that this competition is not limited to new customers. Surveys conducted by both IBM and CDS show that customers who had previously purchased S/390 compatible systems migrated to non-S/390 platform computers during the relevant time frame. {See e.g., Results of CDS telemarketing survey, Ex. 45 to Burke Dec.; IBM Surveys, Exs. 49 and 50 to Burke Dec.) Between 1995 and 2000, the number of S/390 platform computers worldwide decreased 18% and the number of customers with S/390-compatible computers decreased 17%. (IBM Data Chart, Ex. 51 to Burke Dec.) The decrease in the installed base was even more pronounced in the “10 MIPS or less” arena on which CDS focuses. Between 1995 and 2000, the number of S/390 platform computers worldwide with processing power of “10 MIPS or less” decreased 60% and the number of customers with S/390 platform computers with processing power of “10 MIPS or less” decreased 59%. (IBM Data Chart, Ex. 55 to Burke Dec.) During this same period, spending on S/390-eompatible computers was decreasing, while spending on non-S/390-compatible computers was increasing. (IBM Server Market Forecast and Analysis, p. 37, Ex. 53 to Burke Dec.) CDS itself found, based on its telemarketing results, that many of the VM, VSE and MVS S/390 customers on which it focused had “already migrated” or were considering migrating to “other vendors/architectures” as the year 2000 approached. • (CDS Internal Presentation, p. 4, Ex. 46 to Burke Dec.) These facts indicate that CDS and IBM were competing in a market that included non-S/390-compatible computers. C. S/390 Customers Are Not “Locked-In”. CDS responds to this evidence of competition by arguing that the relevant market should be limited to existing IBM S/390 customers. If it is appropriate to limit the relevant product market in this way, then there is no question that IBM has market power in the relevant market. IBM is the world’s leading producer of IBM products — -just as The Coca-Cola Company is undoubtedly the leading producer of Coca-Cola. But it is an established maxim that antitrust law protects competition, not competitors. Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). Thus, courts generally conclude that single brands do not constitute separate markets. Mathias v. Daily News, 152 F.Supp.2d 465, 482-83 (S.D.N.Y.2001) (dismissing antitrust claims based on a market definition limited to the “Daily News” newspaper and excluding other newspapers, and recognizing other cases in the Second Circuit rejecting a relevant market based on a single brand name); Re-Alco Indus., Inc. v. Nat’l Center for Health Educ., Inc., 812 F.Supp. 387, 391-92 (S.D.N.Y.1993) (dismissing antitrust claims when plaintiff failed to make a showing why the relevant market should be limited to a particular brand of health education materials) See also, Town Sound & Custom Tops, Inc. v. Chrysler Motors Corp., 959 F.2d 468, 480 (3d Cir.1992) (rejecting a market definition limited to Chrysler cars, finding that Chrysler cars competed with other companies’ automobiles); Domed Stadium Hotel, Inc. v. Holiday Inns, Inc., 732 F.2d 480, 488 (5th Cir.1984) (rejecting market definition limited to Holiday Inn hotel rooms, finding that the relevant market was hotel rooms generally). CDS’s argues, however, that the relevant product market should be limited to existing IBM S/390 customers because they suffer the “lock-in” effect described by the Supreme Court in Eastman Kodak Co. v. Image Technical Services, Inc., et. al., 504 U.S. 451, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). In Kodak, several independent service organizations brought an antitrust action against Kodak after it created a new policy that it would sell Kodak replacement parts only to customers who used Kodak maintenance services to maintain their photocopier and micro-graphic equipment (or maintained their own). Id. at 458, 112 S.Ct. 2072. The Supreme Court, affirming the Ninth Circuit’s reversal of the district court’s grant of summary judgment in favor of Kodak, found that there were genuine issues of material fact as to Kodak’s market power in a properly defined market. Specifically, the Court found that there was a genuine issue as to whether Kodak machines and post-purchase Kodak maintenance services and parts were two distinct products with a “tying arrangement” between them or— as Kodak claimed — one unified market. Id. at 463, 112 S.Ct. 2072. The Court explicitly recognized that a single brand of a product could constitute a separate market for antitrust purposes, explaining that the relevant market was properly determined by the choices available to Kodak equipment owners, and that “[b]ecause service and parts for Kodak equipment are not interchangeable with other manufacturers’ service and parts, the relevant market from the Kodak equipment owner’s perspective is composed of only those companies that service Kodak machines.” Id. at 482, 112 S.Ct. 2072. The Court noted that customers who had already purchased Kodak equipment would tolerate some level of service-price increases, even supra-competitive prices, if the switching costs remained higher than the service prices. Id. at 477, 112 S.Ct. 2072. If the seller could discriminate between these customers and new customers, the company could charge new customers below-marginal costs on equipment and regain the costs through service and warranty packages not available to the “locked-in” customers. Id. The Court found that the respondents (plaintiffs) had offered evidence of high switching costs, and that Kodak itself had confirmed that it varied the package price of equipment/parts/service for existing customers. Id. The Court also considered the difficulty consumers faced in informing themselves of the total cost of the Kodak “package” including equipment, service, and parts — at the time of purchase, due to the difficulty of calculating accurate lifecy-cle pricing for a large, complex machine. Id. at 473, 112 S.Ct. 2072. In the context of this potentially limited relevant market (for Kodak parts alone), the Court concluded that Kodak had failed to demonstrate that the respondents’ inference of market power was unreasonable, particularly in light of the direct evidence that Kodak had raised prices to drive out competition. Id. at 477, 112 S.Ct. 2072. And it was also plausible from the evidence “to infer that Kodak chose to gain immediate profits by exerting that market power where locked-in customers, high information costs, and discriminatory pricing limited and perhaps eliminated any long-term loss.” Id. As a result, the Supreme Court concluded that it was inappropriate for the district court to grant summary judgment in favor of Kodak. Id. While there is no allegation of an illegal tying arrangement in the instant case, plaintiff argues that here, as in Kodak, summary judgment is not appropriate because there is a genuine issue of fact concerning the existence of a “lock-in” effect. (Plaintiffs Opposition to Summary Judgment (“Plaintiffs Opp.”), p. 20.) CDS claims that IBM S/390 customers are locked-in by high switching costs and high information costs and asserts that, “faced with the ‘commercial realties’ of the market, it is apparent that the relevant market at issue is low-end S/390 platforms.” Id. at 20. However, CDS fails to present evidence of any of the elements that the Kodak Court found could indicate “lock-in”: (1) high switching costs faced by a substantial number of customers; (2) high information costs faced by a substantial number of customers; and (3) a substantial ability to exploit “ignorant” customers, i.e., those with high information costs. See, generally, Universal Avionics Sys. Corp. v. Rockwell Int’l Corp., 184 F.Supp.2d 947, 956 (D.Ariz.2001) (applying these factors to determine whether plaintiff had established “lock-in” under Kodak). Absent such evidence, CDS does not raise a genuine issue of fact. 1. CDS does not present evidence showing that a substantial number of customers faced “high switching costs”. “Switching costs” are the additional costs (over and above the market price of the item) incurred by customers who have previously invested in a particular product line. See generally, PSI Repair Servs., Inc. v. Honeywell, Inc., 104 F.3d 811, 818 (6th Cir.1997). In Kodak, the respondent plaintiffs submitted evidence oí “very high switching costs” for existing Kodak customers. Kodak, 504 U.S. at 477, 112 S.Ct. 2072. There was also evidence that customers used Kodak service “even though they preferred ISO service, [and] Kodak service was of higher price and lower quality than the preferred ISO service” Id at 465, 112 S.Ct. 2072. In the instant case, however, CDS has not provided any evidence of customers who wanted to leave ' the IBM S/390 system but were unable to because of high switching costs. In the case of a computer system, the cost of purchasing or programming new software is a potential switching cost. Arguing that locked-in customers face prohibitively high switching costs, CDS cites the Declaration of Robert Fleming (“Fleming Dec.”). Mr. Fleming, the President of a library bibliographic supply company, states that his company used a IBM S/390 operating system (or its predecessors) and software applications for twenty years, and that “due to the complexity of the software ... it was not possible to migrate the software to another non-IBM platform.” (Fleming Dec., ¶ 3, 4.) Unfortunately for CDS, Mr. Fleming goes on to state that eventually his company “successfully migrated” to a CDS operating system, which allows it to run their S/390 applications. (Fleming Dec., ¶ 5.) And Mr. Fleming then reveals that his company is currently “going through a very difficult transition from OS/390 system to a non-IBM network systems,” albeit one involving “very high costs for new hardware and very high costs for software.” (Fleming Dec., ¶ 6.) While Mr. Fleming’s affidavit provides evidence that switching costs may be high and are not incurred lightly, they are apparently not prohibitive, because his company made the switch, despite the costs. CDS also cites to the Declaration of Ron Hankison (“Hankison Dec.”). Mr. Hanki-son, the President of CDS (now Xbridge Systems, Inc.), opines that a “substantial portion of S/390 customers” are locked-in, and IBM customers are “generally unable to cost-effectively migrate their applications to less expensive computing platforms offered by IBM’s competitors.” (Hankinson Dec., ¶ 7, 8.) But Mr. Hankison provides no evidentiary basis for his wholly conclusory statements. In addition to the Fleming and Hankin-son Declarations, CDS seeks to support its claim of “high switching costs” through the expert testimony of Ronald Alepín. While Mr. Alepín concludes in his declaration (“Alepín Dec.”) that, “Customers are unwilling or unable to consider replacing their ... [S/390 systems] because the conversion cost is prohibitive,” he offers no examples to support this opinion. (Alepín Dec., ¶ 11.) Alepín admits that he did not try to identify any S/390 customers who wanted to leave the S/390 platform but were unable to migrate due to high switching costs, or to quantify how many such customers there might be. (Alepín Dep. at 127:5-8, 174:19-175:9.) Likewise, CDS’s other expert, Brett Reed, neither identifies any customers that are allegedly “locked-in” nor quantifies how many such customers there are. In Virgin Atlantic Airways, plaintiff submitted an expert report which purported to explain market facts relevant to the antitrust litigation. The Second Circuit noted that plaintiff had failed to supply the hard data that the expert relied upon, and that the charts and graphs that were offered provided data for an irrelevant time period. Virgin, 257 F.3d at 264. The Circuit concluded that plaintiff failed to meet it burden of showing an actual adverse effect on the relevant market by submitting the speculative report, explaining that, “Expert testimony rooted in hypothetical assumptions cannot substitute for actual market data.” Id. Likewise, the speculative affidavits of Mr. Alepín and Mr. Reed do not overcome for the lack of hard evidence. CDS has failed to identify any specific customers, let alone a substantial number, that allegedly faced switching costs of a magnitude sufficient to make migration impractical. The only concrete evidence regarding the cost of migration in the record comes from IBM documents, in which the defendant estimated the costs to consumers of moving from various platforms. (“PS90E Competitive Analysis,” Ex. H to Reed Dec; “Entry S/390 Concept DCP,” Ex. I to Reed Dec.) However, these documents do not show that switching costs were prohibitive for any identified customers; rather, they generally suggest that the cost of migration is one factor among others that consumers use to determine the most efficient, beneficial, and economical computing solution for their needs. These documents show nothing more than that defendant was concerned about migrating customers, and sought to retain them by providing a competitive alternative. (See, e.g., Ex. I, p. 11-12, explaining that IBM is seeking to provide “a platform which is priced more competitively with alternate platforms” and noting that “The point is that in order to be successful in our established geographies at replacing the install base, we have to be affordable to the customer, be able to demonstrate cost of computing savings, be an economical platform alternative (including migration costs), provide server function in today’s client/server world, and reach the customer.”) Even Mr. Alepín acknowledges that switching costs should be considered in light of the benefits of migration. (Alepin Dep. at 127:5-8, 174:19-175:9). See also SMS Sys. Maint. Servs., 188 F.3d at 22 (“cost of shifting to another [computer] system must take into account the efficiency gains of buying new software — gains that often may dwarf hardware price in dollar terms”). The fact that existing IBM customers would need to spend money to migrate to another computing system does not establish “lock-in.” See e.g. Geneva Pharm. Tech. Corp. v. Barr Lab., Inc., 201 F Supp.2d 236, 273 (S.D.N.Y.2002) (declining to limit a relevant market to one brand and noting that switching costs alone do not establish lock-in under Kodak) (citations omitted). CDS offers no evidence that “high switching costs” made migration to an alternative platform impractical for a substantial number of S/390-compatible customers. 2. CDS does not present evidence showing that “high information costs” prevented a substantial number of customers from making fully informed purchase decisions. “Information costs” prevent customers from obtaining relevant information about the costs and benefits of a product at the time customers initially invest in that product. See, e.g., PSI Repair Servs., 104 F.3d at 818; see generally, Universal Avionics, at 956-57 (to show absence of high information costs, “ ‘[i]t suffices that most buyers know the risks of dealing initially with the defendant rather than with his rivals’ ”) (quoting 10 Areeda et al., Antitrust Law § 1740, at 157 (1996)); Little Caesar Enters., 34 F.Supp.2d at 488-89 (central to the inquiry is “the degree of knowledge ... reasonably available to the buyer[s]” when they initially invest, quoting Areeda, § 1740, at 151). CDS could have supported its allegation of a limited relevant markét by showing that a substantial number of existing S/390 customers were unable to make fully informed purchase decisions regarding the costs and benefits of investing in S/390-compatible computers. However, CDS presents no evidence of high information costs. Again, there is no record evidence that any S/390 customer was unable to make a fully informed decision regarding the attendant costs and benefits of owning, or switching from, an S/390 platform computer, let alone that a substantial number of customers was unable to do so. Unlike defendant Kodak, IBM did not change any policies related to its product after purchase. And there are no allegations in the instant case that customers who bought S/390 systems had difficulty calculating things like lifecycle pricing involving service and warranties, thus preventing them from making an informed decision about what product to purchase. CDS argues that IBM took action “equivalent to Kodak’s change in parts policy” when it “hindered CDS.” (Reed Dec., 18). This argument is based on the theory, advanced by Mr. Reed, that, “Customers who selected IBM in the 1980s or early 1990s (or before) could have reasonably expected that new low-cost IBM S/390compatible technologies made available in 1997 would be made available without undue interference from IBM.” This argument not only relies on an unsupported divination of what IBM customers expected; it also begs the ultimate question of whether IBM committed antitrust violations. Mr. Reed’s statement does not provide evidence that supports his conclusory claim of undue inference. Courts generally consider the viability of Kodak-based limited markets in cases where there is an allegation of an illegal tying arrangement, as there was in Kodak. In such cases, if there is no evidence of “information costs,” federal courts have routinely granted summary judgment against plaintiffs basing claims on alleged “lock-in” markets. See SMS Sys. Maint. Servs., 188 F.3d at 23 (rejecting “lock-in” market in part because computer users know beforehand that their investment in a particular computer architecture will have certain consequences); PSI Repair Servs., 104 F.3d at 820 (holding that a plaintiff “cannot succeed on a Kodak-type theory when the defendant has been otherwise forthcoming about its pricing structure and service policies.”); see also, United Farmers Ass’n, Inc. v. Farmers Ins. Exch., 89 F.3d 233, 238 (5th Cir.1996) (rejecting claim that insurance agents were “locked-in” to particular insurance company because the agents “would clearly have become aware of [the alleged anticompeti-tive] policy long before they faced significant switching costs”); Universal Avionics, 2001 WL 1771185, at 956-57, 959-60 (finding that manufacturers “know that it is costly to switch” avionics suppliers and that “it would be plainly contrary to the ‘economic reality of the market at issue’ to assume that [defendant’s] customers did not know what they were doing” when they initially invested in defendant’s proprietary flight control system (quoting Kodak, 504 U.S. at 467, 112 S.Ct. at 2082)); Laserworks v. Pitney Bowes, Inc., Civ. No. C2-96-1307, 1999 WL 33435671, at *8 (S.D.Ohio Dec.29, 1999) (rejecting “lock-in” market premised on customers’ investment in Pitney Bowes fax machines because customers “were armed with all of the information they needed to make an informed decision” in the foremarket and Pitney Bowes policy was not changed after customers invested in the technology) aff'd 8 Fed.Appx. 380, 2001 WL 392045 (6th Cir.2001); Metzler v. Bear Auto. Serv. Equip. Co., 19 F.Supp.2d 1345, 1359 (S.D.Fla.1998) (rejecting “lock-in” market based on customers’ investment in particular automotive diagnostic equipment where customers were not faced with a “sudden restrictive change in policy” after they had invested in the technology); Wilson v. Mobil Oil Corp., 984 F.Supp. 450, 461 (E.D.La.1997) (rejecting franchise “lock-in” because investors “had sufficient information to evaluate the risks of entering [Defendant’s] franchise before they signed their agreements”). Here, I am faced with an effort to extend Kodak beyond the illegal tying arena, with no evidence in the record about excessive information costs. What the First and Sixth Circuits did in SMS and PSI is equally appropriate here. 3. CDS does not 'present evidence that IBM exploited “locked-in” customers. IBM argues that, even if the record contained evidence of high switching costs and information costs, IBM could not exploit these customers because they could not identify them, as they had no access to the information necessary to conduct a cost/benefit analysis of switching for each individual customer. CDS counters that the “locked-in” — and thus exploitableS/390 customers can be identified simply by the fact that they have remained customers. This arg