IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
August 22, 2011
BARRITA, INC., DBA LA VICTORIA TAQUERIA; NICANDRO BARRITA;
ENS ASSOCIATES INVESTMENTS, LLC; MASOUD SHAHIDI; AND DOES 1 15 THROUGH 10, INCLUSIVE,
The opinion of the court was delivered by: Richard Seeborg United States District Judge
ORDER GRANTING MOTION TO AMEND CASE MANAGEMENT SCHEDULING ORDER AND SETTING CASE MANAGEMENT CONFERENCE
United States District Court For the Northern District of California
counsel of record. At the same time, and based on plaintiff's request, the Court extended the 21 deadlines for completion of non-expert discovery and for pre-trial motions that were previously set 22 in the Amended Case Management Scheduling Order on October 15, 2010. No changes were made 23 to the May 19, 2011 deadline for defendants to disclose expert testimony and reports and the June 16, 2011 deadline to complete expert discovery. Defendants' new counsel entered his appearance 25 on May 18, 2011. On June 28, 2011, defendants served their expert report. In July, defendants also 26 sought to schedule the deposition of plaintiff's expert, but plaintiff declined as the request came 27 after the deadline to complete expert discovery.
Defendants now move for an Order from the Court deeming their expert
disclosure timely and extending the deadline to complete expert
discovery until September 30, 2011.
On May 2, 2011, the Court granted the motion of defendants' prior attorney to withdraw as contends that he will suffer prejudice if expert discovery is extended, as his time to prepare for trial 2 will be shortened. Moreover, plaintiff suggests that defendants' expert should be excluded based on Federal Rule of Civil Procedure Rule 37(c)(1), which provides that a party may not rely on evidence 4 provided by a witness whom it fails to disclose pursuant to Rule 26(a), "unless the failure was 5 substantially justified or is harmless." The deadline for filing dispositive motions, however, has 6 already been moved forward at plaintiff's request to December 8, 2011, without a change in the trial 7 date. Thus, adjusting the expert discovery date does not present a significant change to the existing 8 schedule and defendants' disclosure of their expert on June 28, 2011 is essentially harmless. 9
Accordingly, defendant's expert shall not be excluded based on Rule 37 and the prior Amended Case Management Scheduling Order shall be amended to extend the deadline to complete expert discovery to September 30, 2011. Additionally, a Case Management Conference shall be held on November 17, 2011 at 10:00 a.m. The parties shall file a Joint Case Management Conference at least one week prior to the Conference. The parties may appear personally or file a 14 request to appear by telephone. If any party files such a request, all parties shall appear 15 telephonically and must contact Court Conference at 866/582-6878 at least one week prior to the Conference.
IT IS SO ORDERED.
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