The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it defendants' motion to extend discovery deadlines; extend expert deadlines; and limit the scope of Hofman's final expert report. The motion is fully briefed and at issue. For the reasons explained below, the Court will deny the motion.
Defendants' Proposed Schedule
The defendants seek to extend the fact discovery deadline by four months, from February 25, 2011, to June 24, 2011. Under this revised schedule, the plaintiffs' expert reports would be due on July 25, 2011, a month after discovery closed. The defense would be required to file its expert reports thirty days later -- on August 25, 2011 -- if the court followed the interval that now exists under the present schedule. But defendants request a longer interval -- three months -- between plaintiffs' deadline for filing expert reports and their own. This would place the deadline for defense expert reports on October 25, 2011.
For rebuttal expert reports, defendants propose allowing plaintiffs the same interval of four months that exists under the present schedule, making them due February 15, 2012. This will require that the other deadlines -- for the close of expert discovery and the filing of dispositive motions, among others -- to be pushed out. To accommodate these extensions, the defendants propose moving trial from November 7, 2011, to May 7, 2012.
The reasons defendants advance for those extensions, and the Court's analysis of those reasons, is set out below.
Defendants claim that the fact discovery deadline must be extended because discovery disputes remain unresolved. The defendants point out that they filed motions to compel on many of these issues, and express understandable skepticism that the Court can rule on them quickly. But in fact the Court has decided most of those motions. See Memorandum Decisions & Orders (Dkts. 1846, 1858 & 1871).
One of those decisions granted a motion to compel the production of tax returns. The plaintiffs' counsel states that he is diligently working to comply with that order. While the BLM argues that full production will not be accomplished by the discovery deadline, the Court is confident that plaintiffs' production will meet that deadline.
The one significant motion to compel that remains is defendants' motion to compel plaintiffs to supplement discovery, filed on December 23, 2011. The briefing was not yet complete as this decision is being written, and the Court will resolve the motion expeditiously when the briefing is complete. The motion largely seeks additional documents that were identified in depositions. For many of those documents, the plaintiffs have no objection other than that production is burdensome and defendants may already have them in their possession. After a preliminary glance, it appears that at least some of the alleged deficiencies may have been resolved, and the motion as a whole does not raise substantial issues that require a continuance of the discovery deadline.
The defendants also complain about the number of depositions set for February -- about 12 -- and argue that they leave no time for follow-up. They also point out that while some of these depositions may involve minor claims, at least one -- the Wada Farms claim -- ranks in the top three claims and another -- the Nature's Best Produce claim -- raises a novel damage theory. However, defendants have a unique opportunity to prepare for these depositions, as they are receiving Hofman's preliminary expert report on damages for each of these plaintiffs, along with any supplemental discovery responses, about two weeks in advance of each deposition. This schedule worked well for one of the largest claims, that of Steve Young. While Young did identify in his deposition an additional 5,600 e-mails that he had not previously produced, those have now been produced in a searchable format, and Young could be deposed again if those e-mails appear significant.
The Young example points to the solution here. If some follow-up becomes necessary -- say, due to the need to inquire about specific matters revealed for the first Memorandum Decision & Order - 3 time at the deposition -- the Court would allow a focused and limited discovery after the deadline, upon a showing of its necessity by counsel. Frankly, the Court would expect counsel to agree (without the need for Court intervention) to allow for follow-up if the February depositions contain surprises. This has not been a significant problem ...