Wilcox v. Bibin

          MEMORANDUM DECISION AND ORDER RE: MOTION TO STRIKE DISCLOSURES OF EXPERT WITNESS MICHAEL LARSON AND EXCLUDE HIS TESTIMONY AT TRIAL (DOCKET NO. 39) MOTION FOR FILINGS MADE UNDER SEAL (DOCKET NO. 43)

          HONORABLE RONALD E. BUSH, CHIEF U.S. MAGISTRATE JUDGE.

         Now pending before the Court are: (1) Defendants/Counterclaimants' Motion to Strike Disclosures of Expert Witness Michael Larson and Exclude His Testimony at Trial (Docket No. 39); and (2) Plaintiff/Counterdefendant's Motion for Filings Made Under Seal (Docket No. 43). Having carefully considered the record and otherwise being fully advised, the undersigned enters the following Memorandum Decision and Order:

         BACKGROUND

         On October 14, 2015, the parties submitted a stipulated Litigation Plan, proposing an August 1, 2016 deadline for Plaintiff/Counterdefendant Craig Wilcox (“Plaintiff”) to “disclose expert witnesses/reports.” See Lit. Plan (Docket No. 16). U.S. District Judge Edward J. Lodge ultimately incorporated the August 1, 2016 deadline for Plaintiff's expert disclosures into the Court's October 23, 2015 Scheduling Order. See Sched. Order (Docket No. 17) (“Disclosure of Experts: The Plaintiff shall disclose expert witnesses and the expected testimony of those witnesses on or before August 1, 2016.”) (emphasis in original). Relevant here, the Scheduling Order also provided:

Rules Governing Disclosures of Expert Witnesses: Within the deadlines for the disclosure of expert witnesses set out above, the parties shall also provide, for each expert disclosed, the report described in Fed.R.Civ.P. 26(a)(2)(B), as modified by Local Rule 26.2(b). Supplementation to the expert witness report shall be done in accordance with Fed.R.Civ.P. 26(e)(1). Pursuant to Local Rule 26.2(b), expert witnesses will not be allowed to offer any opinion not disclosed in the mandatory Rule 26 disclosures, supplementation, or deposition. This includes rebuttal experts. No undisclosed expert rebuttal opinion testimony will be allowed at trial.

Id. (emphasis in original).

         Other than previously identifying Michael Larson as his expert (“as well as his theories”), Plaintiff never provided formal expert disclosures by the August 1, 2016 deadline. Opp. to Mot. to Strike, p. 2 (Docket No. 46). In turn, within their September 6, 2016 Motion for Partial Summary Judgment, Defendants/Counterclaimants Michael Bibin and Michael J. Bibin and Associates CPA, P.A. (“Defendants”) “mov[ed] the Court to exclude all expert witnesses to be disclosed by Plaintiff.” Mot. to Exclude and Mot. for Partial Summ. J., p. 2 (Docket No. 37).

         Plaintiff then disclosed Mr. Larson as their sole expert on September 27, 2016, and included an eight-page report signed by him with 226 pages of attachments. See Pl.'s Expert Witness Discl. (Docket No. 44). Defendants then moved to specifically strike “Plaintiff's disclosure of Expert Witness Michael Larson, all attending documents pertaining thereto, and exclude his testimony at trial” via the at-issue Motion, arguing that “the disclosure is untimely and Plaintiff did not seek an extension of time.” Mot. to Strike, p. 2 (Docket No. 39).^[1]

         DISCUSSION

         Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure states in relevant part that a party must disclose to the other parties the identify of any witness it may use at trial to present evidence under Federal Rule of Evidence 702 . . . .” Fed.R.Civ.P. 26(a)(2)(A). Parties must disclose their experts “at the times and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). The disclosure must be accompanied by a written report; that report must contain: “(I) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.” Fed.R.Civ.P. 26(a)(2)(B) (I-vi).

         “The purpose of these disclosure requirements is ‘to prevent surprise testimony by ensuring that opposing parties are aware of the nature of the expert opinions prior to trial.'” Hilborn v. Metro. Grp. Prop. and Cas. Ins. Co., 2014 WL 2506303, *3 (D. Idaho 2014) (quoting DR Sys., Inc. v. Eastman Kodak Co., 2009 WL 2982821, *3, n.2 (S.D. Cal. 2009)). “If a party fails to provide information nor identify a witness as required by the [R]ule, the party is not allowed to use that information or witness to supply evidence at trial unless the failure was substantially justified or is harmless.” Hilborn, 2014 WL 2506303 at *3 (citing Fed.R.Civ.P. 37(c)(1)). “Rule 37(c)(1) ‘gives teeth to [the Rule 26(a) disclosure] requirements by forbidding the use at trial any information not properly disclosed under Rule 26(a).” Hilborn, 2014 WL 2506303 at *3 (quoting Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9^thCir. 2001)). “Rule 37(c)(1) is recognized as a broadening of the sanctioning power and a rule that is ‘self-executing' and ‘automatic.'” Id. Moreover, because of the automatic nature of this sanction, courts are not required to make a finding of willfulness or bad faith prior to excluding expert testimony at trial. See Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9^th Cir. 2008).

         The trial court has wide latitude in using its discretion to issue sanctions under Rule 37(c)(1). See Yeti by Molly, 259 F.3d at 1106. The burden is on the disclosing party to show that the delay was substantially justified or harmless. See id. at 1106-07 (holding it is implicit in Rule 37(c)(1) that burden is on party facing sanctions to prove harmlessness). Despite the severity of this exclusionary sanction, it may be appropriate “even when a litigant's entire cause of action or defense has been precluded.” Id. at 1106 (citing Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 248 F.3d 29, 34 (1^st Cir. 2001)).

         Here, it is undisputed that Plaintiff failed to properly disclose his expert, Mr. Larson, by the August 1, 2016 deadline - that is, though apparently identifying Mr. Larson as his expert previously, Plaintiff did not submit any expert report from Mr. Larson as of August 1, 2016. Even so, Plaintiff argues that his neglect in this respect is both substantially justified and harmless and, thus, Defendants' efforts to strike Mr. Larson's disclosure/testimony should be rejected.

         First, Plaintiff appears to claim that his untimely expert disclosure is substantially justified, owing to “a clerical oversight due to calendaring . . . .” Opp. to Mot. to Strike, p. 3 (Docket No. 46); see also Griggs Aff., ¶ 3 (Docket No. 46, Att. 1) (“Rather than entering August 1, 2016 (the deadline for expert disclosure in the discovery plan), my office used the deadline for discovery, September 30, 2016, as the deadline for disclosure of expert reports as well. I do not know the reason for that as the person who did the calendaring at that time has been gone for several months.”). There is no question that, with busy and hectic litigation practices, such things happen on occasion. However, such an omission, without more, cannot constitute substantial justification for violating an expert disclosure deadline. See, e.g., Baltodano v. Wal-Mart Stores, Inc., 2011 WL 3859724, *2 (D. Nev. 2011) (discussing factors that “may properly guide a district court in determining whether a violation of a discovery deadline is justified, ” before concluding: “Inadvertent mistakes and unintentional oversights are not substantial justifications for delay.”) (citing R & R Sails Inc. v. Ins. Co. of State of Penn., 251 F.R.D. 520, 526 (S.D. Cal. 2008)) (emphasis added); Jennings v. Bell Helicopter Textron Inc., 2013 WL 5306638, *2 (S.D. Cal. 2013) (“internal error ...