The opinion of the court was delivered by: James Larson United States Magistrate Judge
ORDER DENYING MOTION TO STRIKE REBUTTAL EXPERT REPORT, DENYING SANCTIONS, EXTENDING EXPERT DISCOVERY CUT-OFF (Docket # 464)
Ultratech filed and submitted a letter to this Court asking the Court to "remedy an attempt by Defendant Tamarack Scientific Co., Inc.('Tamarack') to submit an untimely expert rebuttal report in violation of both F.R.C.P. Rule 26 and this Court's Scheduling Order." Ultratech also requests an order for evidentiary sanctions and an award of attorney fees and expenses. The parties met and conferred in person but were unable to resolve their dispute. All discovery in this case has been referred to this Court by the district court (Hon. Charles R. Breyer) as provided by 28 U.S.C. §636(b) and Civil Local Rule 72-1.
The Scheduling Order provides for exchange of expert reports. The parties stipulated to one-week extensions of each of the two dates: to January 21, 2005 for expert reports where the party has the burden of proof at trial and February 22, 2005 for "rebuttal expert reports."
On January 21, 2005, Ultratech served an expert report for Dr. William Oldham. Tamarack served an expert report for Mr. Robert Fischer.
On February 21, 2005, Tamarack served no rebuttal expert reports. Ultratech served the rebuttal reports of Dr. Oldham and Mr. Fairborz Rostami in response to the Fischer report.
On March 21, 2005, the date expert discovery closed, at 7 p.m., Tamarack served the expert report of Dr. Berthold Horn (the "Horn report"). Ultratech objected on March 22. Tamarack responded that Rule 26 allowed thirty days for service of rebuttal reports after any expert report, including rebuttal reports.
Ultratech contends that Tamarack has unilaterally altered the schedule from a twotiered expert report exchange to a three-tiered expert report exchange. Ultratech contends that the holding in the Akeva case "dooms the position taken by Tamarack." Akeva, LLC v Mizuno, 212 F.R.D. 306, 309 (M.D.N.C. 2002) ( "Because there was a court approved discovery plan in this case, the Court looks to Rule 16(f) to determine violations for not disclosing expert reports at the time required under the scheduling order, and to determine sanctions. At this stage, the question is not whether the defendants have been prejudiced, but whether plaintiff has shown good cause for its failure to timely disclose.") Id. (internal citations omitted).
Ultratech predicts an endless ping-pong of expert reports, every thirty days, if the Court adopts Tamarack's logic. Ultratech also cries prejudice, that Tamarack's delay in producing the Horn report makes it impossible for Ultratech to take his deposition without leave of court. Ultratech also contends that the Horn report goes to the invalidity of the '813 patent, an issue on which Tamarack has the burden of proof, and that it should have been produced by the January deadline. Ultratech denies that the Horn report is really a response to one of Ultratech's experts, Mr. Rostami.
Ultratech asks the Court to strike the Horn report and exclude both the report itself and Dr. Horn's testimony from trial. Giladi v. Berish Strauch, 2001 U.S. Dist. LEXIS 4645, AT *8-*9 (S.D.N.Y. 2001). Ultratech urges this Court to use its authority under Rules 16 and 37 to issue evidence preclusion sanctions against Tamarack. Yeti by Molly, Ltd. v. Deckers Outdoor Corp, 259 F.3d 1101, 1106 (9th Cir. 2001). Ultratech also asks the Court to award its fees and expenses for traveling to Orange County to meet and confer with Tamarack over this dispute.
Tamarack rejects Ultratech's objections for two reasons:
1. Judge Breyer did not override Rule 26(a)(2)(C) in his Scheduling Order, nor did he ...