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Areas Usa Sjc, LLC v. Mission San Jose Airport

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


November 1, 2012

AREAS USA SJC, LLC, PLAINTIFF,
v.
MISSION SAN JOSE AIRPORT, LLC; ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge United States District Court

*E-filed: November 1, 2012*

NOT FOR CITATION

ORDER DENYING PLAINTIFF'S MOTION TO EXCLUDE DEFENDANTS' EXPERT WITNESSES [Dkt. 92]

Areas USA SJC, LLC ("Areas") moves the Court for an order barring defendants Mission San Jose Airport, LLC and Mission Yogurt, Inc. (collectively "Mission") from presenting any 16 expert witness testimony from Stanley Jackson, Dan Ludwig, Rod Tafoya, or Mark Schafer. 17 Mission opposes the motion. The matter is deemed submitted without oral argument. See Civ. L. R. 7-1(b). Upon consideration of the moving and responding papers, Areas' motion is denied.

As a basis for its motion, Areas claims that Mission failed to provide expert reports for these 20 witnesses, as required by Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. Mission 21 counters that Rule 26(a)(2)(C), not Rule 26(a)(2)(B), governs these witnesses and that Rule 22 26(a)(2)(C) does not require the submission of expert reports. Rule 26(a)(2)(B) requires a witness 23 to provide a written report "if the witness is one retained or specially employed to provide expert 24 testimony in the case or one whose duties as the party's employee regularly involve giving expert 25 testimony." Fed. R. Civ. P. 26(a)(2)(B). The parties do not dispute that Jackson and Ludwig work 26 for Legends Group and that Mission hired Legends Group as a project manager before this litigation 27 began. These individuals were therefore not retained to provide expert testimony and their duties do 28 not regularly involve giving expert testimony. The same goes for Tafoya and Schafer, who work for Mission itself. Accordingly, the expert testimony of these individuals is governed by Rule 2 26(a)(2)(C), which requires a disclosure, but no written reports. Areas does not dispute the 3 sufficiency of Mission's disclosures under Rule 26(a)(2)(C). As Mission's expert disclosures did 4 not run afoul of any duty to provide written reports, Areas' motion to exclude witnesses on that 5 basis is DENIED.

IT IS SO ORDERED.

C11-04487 HRL Notice will be electronically mailed to: Karin Bohmholdt bohmholdtk@gtlaw.com Scott Bertzyk bertzyks@gtlaw.com Denise Mayo mayod@gtlaw.com Daniel Rockey daniel.rockey@hro.com 4 Meryl Macklin meryl.macklin@bryancave.com Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

20121101

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