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Lopez v. Chertoff

August 4, 2009

JUAN CARLOS VALADEZ LOPEZ, PLAINTIFF,
v.
MICHAEL CHERTOFF, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge

YAKOV GRINBERG'S MOTION ORDER DENYING DEFENDANT TO STRIKE PLAINTIFF'S EXPERT REPORTS [151]

Defendant Yakov Grinberg's Motion to Strike Plaintiff's Expert Reports was set for hearing on July 24, 2009. Having taken the matter under submission on July 23, 2009, and having reviewed all papers submitted pertaining to this motion the Court, NOW FINDS AND RULES AS FOLLOWS:

The Court DENIES Defendant Yakov Grinberg's Motion to Strike Plaintiff's Expert Reports.

On September 11, 2008, the parties submitted a Joint Discovery report to the Court [Doc. 89.] The document listed the following under the heading "Discovery Plan":

The parties have agreed to the following general discovery plan, based on the assumption that trial of this matter would be set to commence on November 2, 2009, a date assumed to be compatible with the court's trial calendar: - April 8, 2009: discovery cutoff and cutoff for filing discovery motions; - April 29, 2009: cutoff for disclosure of experts and experts' reports; - May 29, 2009: cutoff for disclosure of rebuttal expert(s) and report(s); - June 26, 2009: cutoff for expert depositions; and - July 17, 2009: cutoff for filing dispositive motions.

[Doc. 89 at 3.] (emphasis in original). The Court did not adopt this discovery plan. See L.R. 83-143.

However, on October 14, 2008, this Court issued an order listing the following:

- April 8, 2009 as the Discovery cut-off; - June 26, 2009 as the Expert Cut-off; - July 17, 2009 as Motion Cut-off; - September 14, 2009 as the Final Pretrial Conference; and - October 13, 2009 as the Jury Trial. [Doc. 94.]

On June 26, 2009, Plaintiff disclosed Masson, Mehr, Snedeler, and Karnik as experts. According to the Court's Order, June 26, 2009 was the final date for all expert discovery, including depositions and rebuttal disclosures.

Federal Rule of Civil Procedure 26(a)(2)(A) states, 26(a)(1), a party must disclose to the other In addition to the disclosures required by Rule parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.

Fed. R. Civ. Pro. 26(a)(2)(A). This disclosure,

Must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert Fed. R. Civ. Pro. 26(a)(2)(B). testimony.

According to Federal Rule of Civil Procedure 37(c)(1), if a party violates Rule 26(a), "the party is not allowed to use that information or witness to supply evidence at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ Pro. 37(c)(1).

A court can impose Rule 37 sanctions even where the sanctioned party never explicitly violated a court order and without a showing of bad faith. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). "Courts have upheld the use of the [Rule 37] sanction even when a litigant's entire cause of action or defense has been precluded." Id. ...


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