The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANT'S MOTION TO PROHIBIT PLAINTIFF FROM ELICITING EXPERT TESTIMONY FROM IMPROPERLY DISCLOSED WITNESSES, OR ALTERNATIVELY, TO COMPEL PLAINTIFF'S PROPER EXPERT DISCLOSURE AND ALLOW AN ADDITIONAL FORTY-FIVE DAYS WITHIN WHICH DEFENDANT MAY COMPLETE EXPERT DISCOVERY (Document 55)
RELEVANT PROCEDURAL BACKGROUND
On June 9, 2010, Defendant Wal-Mart Stores, Inc. filed its Motion to Prohibit Plaintiff from Eliciting Expert Testimony from Improperly Disclosed Witnesses, or, Alternatively to Compel Plaintiff's Proper Expert Disclosure and Allow Wal-Mart Forty-Five Days Thereafter to Complete Expert Discovery. The matter was originally calendared to be heard July 9, 2010. (Doc. 55-56.)
On June 16, 2010, this Court continued the hearing on the motion to July 23, 2010, due to its unavailability. (Doc. 57.)
On July 2, 2010, Plaintiff Zane Hardin filed his opposition to Defendant's motion. (Docs. 58-59.) On July 16, 2010, Defendant filed it's reply to Plaintiff's opposition. (Docs. 60-61.)
On July 20, 2010, this Court determined the motion was suitable for decision without oral argument; therefore, the July 23, 2010, hearing was taken off calendar and the matter was taken under submission pursuant to Local Rule 230(g).
Defendant moves this Court for an order prohibiting Plaintiff from eliciting expert testimony from improperly disclosed witnesses, or alternatively, to compel Plaintiff to properly disclose experts and permit Defendant an additional forty-five days within which to complete expert discovery. More particularly, Defendant contends Plaintiff's expert disclosure: (1) was late and improperly served, (2) discloses individuals who are not experts, (3) attempts to designate experts from unrelated matters wherein Wal-Mart is a named defendant, and (4) improperly designates fact witnesses as non-retained expert witnesses. (Doc. 55 at 1-5.)
B. Applicable Expert Disclosure Deadlines
This Court's scheduling order issued November 5, 2009, provides as follows:
The parties have already exchanged initial disclosures. The parties are ordered to complete all discovery pertaining to non-experts on or before April 15, 2010. The parties are directed to disclose all expert witnesses, in writing, on or before April 30, 2010. The parties also shall disclose all supplemental experts on or before May 14, 2010. The written designation of experts shall be made pursuant to Fed. R. Civ. P. Rule 26(a)(2), (A) and (B) and shall include all information required thereunder. Failure to designate experts in compliance with this order may result in the Court excluding the testimony or other evidence offered through such experts that are not disclosed pursuant to this order.
The parties are directed to complete all expert discovery on or before June 11, 2010. The provisions of Fed. R. Civ. P. 26(b)(4) and (5) shall apply to all discovery relating to experts and their opinions. Experts must be fully prepared to be examined on all subjects and opinions included in the designation. Failure to comply will result in the imposition of sanctions, which may include striking the expert designation and preclusion of expert testimony. (Doc. 43, emphasis in original.)
1. Timeliness & Service Issues
Defendant contends Plaintiff's expert disclosure was both untimely and improperly served. More particularly, Defendant argues Plaintiff's disclosure was late because it was sent via email on May 1, 2010, rather than via regular mail on April 30, 2010. Additionally, the disclosure document was defective because it was unsigned. (Doc. 55 at 5.) In reply, Plaintiff argues that his expert disclosure "was early" because it was e-mailed on May 1, 2010, and therefore was received earlier than if it had been sent via regular mail on April 30, 2010. (Doc. 58 at 2-3 & Doc. 59, ¶ 7.)
A review of the pleadings demonstrates that Plaintiff failed to comply with the expert disclosure deadline as outlined in this Court's scheduling order. Plaintiff missed the "on or before April 30, 2010," deadline. Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure provides that "[a] party must make these disclosures at the times and in the sequence that the court orders." Plaintiff did not disclose experts "at the times and in the sequence" as provided for in the November 5, 2009, scheduling order. Rather, Plaintiff sent an undated and unsigned expert disclosure, via email on Saturday, May 1, 2010, at 5:38 p.m. (See Doc. 56, Ex. B.)*fn1
Rule 26(g)(1) requires that every disclosure document "must be signed," and further, the signature acts as a certification that the document is complete and correct to the best of the signor's belief. Plaintiff failed to sign the expert disclosure document. Plaintiff merely states that because his disclosure was an attachment to an email "it could not be signed." (Doc. 58 at 2.) This assertion is unpersuasive. This Court's Local Rules provide for electronic signatures and the Court cannot conceive of a reason why an electronic signature could not appear on Plaintiff's expert disclosure even as an attachment to an email. See Local Rule 131.
2. Compliance with Rule 26
Defendant further claims Plaintiff's expert disclosure is inadequate because it designates fact witnesses as expert witnesses, designates unidentified persons in other, unrelated matters involving Wal-Mart as non-retained experts, and otherwise circumvents the requirements of Rule 26. (Doc. 55 at 5.)
Rule 26(a)(2) of the Federal Rules of Civil Procedure provides, in relevant part:
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.*fn2
(B) Written Report. Unless otherwise stipulated or ordered by the court, 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 testimony. The 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 ...