ORDER VACATING SEPTEMBER 24, 2012, HEARING AND ORDER ON DEFENDANTS' MOTION FOR RECONSIDERATION (Doc. No. 104)
Currently set for hearing and decision on September 24, 2012, is Defendants' motion for reconsideration of a Magistrate Judge's ruling. The Court has reviewed the moving papers and has determined that this matter is suitable for decision without oral argument. Local Rule 230(h). Therefore, the Court will vacate the September 24, 2012, hearing and instead issue this order, which resolves the motion for reconsideration.
Defendants argue that the Magistrate Judge erred by denying their motion under Rule 37(c)(1) to preclude Plaintiffs' expert witness Ronnie Williams. Defendants contend that the Magistrate Judge erred: (1) in finding that there is a meet and confer requirement under Rule 37(c)(1); (2) in refusing to make letter briefs that were submitted in conjunction with modifying the scheduling order a part of the official record; and (3) in finding that Williams's expert report met the requirements of Rule 26(a)(2) even though no publications were identified, and it is unclear if the cases listed were cases in which Williams had testified in the last four years.
1. Review of Magistrate Judge's Order
A district court may refer pretrial issues to a magistrate judge under 28 U.S.C. § 636 (b)(1). See Bhan v.NME Hosp., Inc., 929 F.2d 1404, 1414 (9th Cir. 1991). If a party objects to a non-dispositive pretrial ruling by a magistrate judge, the district court will review or reconsider the ruling under the "clearly erroneous or contrary to law" standard. Fed. R. Civ. Pro. 72(a); Osband v. Woodford, 290 F.3d 1036, 1041 (9th Cir. 2002); Grimes v. City of San Francisco, 951 F.2d 236, 240-41 (9th Cir. 1991). A magistrate judge's factual findings are "clearly erroneous" when the district court is left with the definite and firm conviction that a mistake has been committed. Security Farms v. International Bhd. of Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997); Green v. Baca, 219 F.R.D. 485, 489 (C.D. Cal. 2003). However, the district court "may not simply substitute its judgment for that of the deciding court." Grimes, 951 F.2d at 241. The "contrary to law" standard allows independent, plenary review of purely legal determinations by the magistrate judge. See Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3rd Cir.1992); Green, 219 F.R.D. at 489; see also Osband, 290 F.3d at 1041. "An order is contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure." Knutson v. Blue Cross & Blue Shield of Minn., 254 F.R.D. 553, 556 (D. Minn. 2008); Surles v. Air France, 210 F.Supp.2d 501, 502 (S.D. N.Y. 2001); see Adolph Coors Co. v. Wallace, 570 F.Supp. 202, 205 (N.D. Cal. 1983). A magistrate judge's pre-trial discovery orders are generally considered nondispositive orders. Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990).
Rule 26(a)(2) provides in pertinent part:
(B) Witnesses Who Must Provide a 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 daw basis and reasons for them;
(ii) the facts or data 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. ...