MITCHELL ENTERPRISES, INC., d/b/a MITCHELL ELECTRIC, an Idaho corporation, DANNY G. MITCHELL and TERESA A. MITCHELL, husband and wife, Idaho residents, Plaintiffs,
MR. ELECTRIC CORP., a Texas corporation, THE DWYER GROUP, a Texas corporation, and DOES 1-10, inclusive, Defendants.
MEMORANDUM DECISION AND ORDER RE: MOTION TO DEFER CONSIDERATION OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND TO AMEND THE SCHEDULING ORDER (DOCKET NO. 47)
RONALD E. BUSH, Magistrate Judge.
Currently pending before the Court is Plaintiffs' Motion to Defer Consideration of Defendants' Motion for Summary Judgment and to Amend the Scheduling Order (Docket No. 47). The Court previously granted Plaintiffs' related Motion to Expedite (Docket No. 48), issuing a docket entry order outlining an abbreviated briefing schedule (Docket No. 49). Therefore, having carefully considered the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
The at-issue Motion relates to Defendants' March 29, 2013 motion for summary judgment (Docket No. 34). Relevant here, on or around March 21, 2013, Defendants disclosed a second, supplemental report from their expert, Jerry Hatchett ("Second Hatchett Report"). The Second Hatchett Report was disclosed (1) after the factual/expert discovery deadlines passed, and (2) after Defendants were required to make expert disclosures. Through their Motion, Plaintiffs do not challenge the timeliness of the Second Hatchett Report; rather, Plaintiffs seek (1) to have this Court defer consideration of Defendants' motion for summary judgment under FRCP 56(d) so that they can fully respond to the Second Hatchett Report, and, relatedly, (2) to permit disclosure of an additional expert witness under FRCP 16(b)(4) so the Second Hatchett Report can be addressed on the merits. Defendants oppose Plaintiffs' efforts in these respects, arguing that Plaintiffs fail to meet the requirements of both FRCP 56(d) or FRCP 16(b)(4).
A. FRCP 56(d)
Under FRCP 56(d)(1), the Court may defer consideration of a motion for summary judgment "if the nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition...." See Fed.R.Civ.P. 56(d)(1). FRCP 56(d) requires "(a) a timely application which (b) specifically identifies (c) relevant information, (d) where there is some basis for believing that the information sought actually exists." Sultana Resources, LLC v. Trio Gold Co., 2007 WL 2993849, at *1 (D. Idaho 2007) (quoting Employers Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1129 (9th Cir. 2004)).
According to Plaintiffs' attorney, Matthew Gunn (appearing for the first time on May 2, 2013 following the withdrawal of Plaintiffs' original counsel), "Plaintiffs will be unable to present facts essential to support its opposition to Defendants' [m]otion for [s]ummary [j]udgment if Plaintiffs are not afforded extra time during which their expert may fully evaluate and respond to the entirely new opinions, theories, and explanations set forth for the first time in Jerry Hatchett's second expert report." See Gunn Aff. at § 2 (Docket No. 47, Att. 2). Mr. Gunn then goes on to identify those areas of the Second Hatchett Report that require Plaintiffs' expert's additional consideration/evaluation, including:
§ "Theory that Mitchell created digital artifacts later cited by Mitchell as evidence of a digital intrusion."
§ "Discussion of Zware's integration with QuickBooks accounting software."
§ "Theory that the "Zware.zip" file, containing Mitchell financial files, was not the result of a digital intrusion but rather was created by Mitchell."
§ "Theory that link files referencing Zware were created by Mitchell."
§ "Theory that Defendants and Zware played no role in Mitchell's undisputed and massive loss of data and damaged dispatch software."
§ "Theory that no Mitchell data was misappropriated by Defendants."
§ "A Reasonable Hypothesis' that the damage alleged in Mitchell's Complaint resulted from a combination of user inexperience and error, third-party viewing of ...