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Shauntae Edwards v. Nike Retail Services

November 1, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


In this action, plaintiff Shauntae Edwards alleges causes of action for sexual harassment, hostile work environment, gender discrimination, failure to prevent sexual harassment, and intentional infliction of emotional distress against defendants Nike Retail Services, Inc. and/or Ryan Taylor. (Dkt. No. 1.) Presently pending before the court is defendants' application for an order striking plaintiff's expert disclosures pursuant to Rules 26(a)(2)(B) and 37(c)(1) of the Federal Rules of Civil Procedure, filed on October 26, 2012. (Dkt. No. 40.) That same day, in light of the imminent November 16, 2012 expert discovery completion deadline, the court by minute order set the application for hearing on November 1, 2012 on shortened time. (Dkt. No. 41.) Plaintiff was ordered to file a response to the application no later than 12:00 p.m. on October 30, 2012. (Id.) On October 30, 2012, plaintiff filed an opposition to defendants' application as well as an application for an order striking defendants' expert disclosures under Rules 26(a)(2)(B) and 37(c)(1), and an order requiring "that an all day mediation be completed." (Dkt. No. 42.)

At the November 1, 2012 hearing, attorneys Arthur Navarette and Zane Becker appeared on behalf of plaintiff, and attorney Timothy Nelson appeared on behalf of defendants. (Dkt. No. 43.) After considering the parties' briefing, the parties' oral argument, and appropriate portions of the record, the undersigned grants in part and denies in part both plaintiff's and defendants' applications.


On November 3, 2010, the district judge entered a status (pre-trial scheduling) order providing that:

The parties shall disclose experts and produce reports in accordance with Federal Rule of Civil Procedure 26(a)(2) by no later than June 1, 2011. With regard to expert testimony intended solely for rebuttal, those experts shall be disclosed and reports produced in accordance with Federal Rule of Civil Procedure 26(a)(2) on or before July 1, 2011. All discovery, including depositions for preservation of testimony, is left open, save and except that it shall be so conducted as to be completed by August 1, 2011. The word "completed" means that all discovery shall have been conducted so that all depositions have been taken and any disputes relevant to discovery shall have been resolved by appropriate order if necessary and, where discovery has been ordered, the order has been obeyed. (Dkt. No. 20 at 2-3.) Subsequently, on June 20, 2011, the district judge entered an order continuing the trial date and related dates. (Dkt. No. 24.) That order extended the deadline to disclose experts and produce expert reports to June 1, 2012; the deadline to disclose rebuttal experts and reports to July 2, 2012; and the deadline to complete discovery to August 3, 2012. (Id.) The final pre-trial conference and jury trial were also reset for December 10, 2012, and February 5, 2013, respectively. (Id.)

Thereafter, the undersigned, based on stipulations by the parties, on three occasions extended the deadline to complete discovery pertaining to expert witnesses and treating doctors, most recently until November 16, 2012. (Dkt. Nos. 30, 36, 39.) The parties also stipulated, and the court eventually ordered, a mental examination of plaintiff by Dr. Ronnie Sue Leith (with psychological testing to be administered by Dr. Joanna Berg) to take place on September 19, 2012. (Dkt. No. 36.) In requesting extensions of the deadline to complete expert discovery, the parties represented that they were pursuing settlement discussions and mediation, and wished to avoid the potentially unnecessary costs of deposing expert witnesses and treating doctors. (See Dkt. Nos. 29, 36.) However, the parties also represented that the extensions would not affect any of the other deadlines set by the district judge. (See Dkt. Nos. 29, 36, 39.) Significantly, the parties never requested an extension of the deadlines to disclose experts and rebuttal experts with the accompanying production of reports -- the parties only requested extensions of the deadline to conduct expert discovery, i.e., to depose experts and treating physicians. Accordingly, as noted above, the operative deadlines set by the district judge to disclose experts and reports, and rebuttal experts and reports, remained June 1, 2012, and July 2, 2012, respectively. (Dkt. No. 24 at 2.)

On October 26, 2012, with the looming November 16, 2012 deadline to complete expert witness discovery, an upcoming pre-trial conference before the district judge on December 10, 2012, and a jury trial set for February 5, 2013, defendants filed their ex parte application for an order striking plaintiff's expert disclosures. (Dkt. No. 40.) Defendants contend that plaintiff disclosed three expert witnesses on June 1, 2012 (Craig Pratt [a human resources specialist], Dr. Joy Policar [plaintiff's treating physician], and Robert Johnson [a forensic economist]), but failed to provide reports pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure from any of these witnesses, and failed to provide any detail regarding the subject matter, facts, and opinions to which each expert was expected to testify. (Declaration of Timothy Nelson, Dkt. No. 40-1 ["Nelson Decl."] ¶ 3, Ex. A.) As such, defendants claim that, despite the imminent November 16, 2012 expert discovery completion deadline, they are unable to prepare for depositions of plaintiff's experts. Defendants argue that plaintiff had ample opportunity to provide expert reports since disclosing her experts on June 1, 2012, but failed to do so.

Accordingly, defendants request that the court, as a discovery sanction, strike plaintiff's expert witness disclosures for failure to comply with Rule 26(a)(2)(B), and preclude Mr. Pratt and Mr. Johnson from providing expert testimony at trial. In their brief, defendants also sought to limit Dr. Policar's testimony to her opinions formed in the scope of the treatment that she rendered to plaintiff, although, as discussed below, the parties have since reached an agreement with respect to Dr. Policar's expert report, deposition, and testimony.

Defendants further assert that they disclosed the identity of Dr. Leith as an expert witness on June 1, 2012, but did not provide a report at that time, because Dr. Leith had not yet conducted an independent medical examination of plaintiff. However, Dr. Leith conducted her examination on September 19, 2012, and defendants provided plaintiff with Dr. Leith's report on October 11, 2012. (Nelson Decl. ¶¶ 4, 6, Exs. B, C.) Defendants also designated a rebuttal human resources expert, Paul Finkle, on July 2, 2012. Defendants acknowledge that they have not yet provided a report from Mr. Finkle, but contend that Mr. Finkle, as a rebuttal expert, cannot prepare a report until he knows what opinions plaintiff's human resources expert intends to offer. (Id. ¶ 5.) Defendants also point out that they cannot adequately prepare Mr. Finkle for deposition without any knowledge of what plaintiff's expert will testify to. (Id. ¶ 8.)

In her briefing, plaintiff asserts that she agreed to the above-mentioned extensions of the expert discovery completion deadline with the understanding that defendants would participate in good faith at mediation, but that defendants instead walked out of the October 10, 2012 mediation after approximately 2 hours without making a single offer to plaintiff. (Declaration of Arthur A. Navarette, Dkt. No. 42-1 ["Navarette Decl."] ¶¶ 17-18.) As such, plaintiff requests that the parties be ordered to complete mediation.

Additionally, plaintiff states that it was not until October 11, 2012, the day after the mediation, that defendants finally produced their medical expert reports to plaintiff, even though defendants purportedly already had these reports in their possession prior to the mediation. (Dr. Berg's report is dated September 24, 2012, and Dr. Leith's report, which is based in part on the testing conducted by Dr. Berg, is dated October 4, 2012.) (Navarette Decl.

¶¶ 9-10, 15.) Subsequently, on October 25, 2012, plaintiff requested defendants to stipulate to a further extension of the expert discovery completion deadline to allow plaintiff to obtain expert reports and complete expert discovery. According to plaintiff, defendants refused and instead filed their application to strike plaintiff's expert disclosures without adequately meeting and conferring with plaintiff. (Id. ¶ 21.) Plaintiff argues that defendants on their part also failed to provide plaintiff with their medical expert reports until October 11, 2012, over four months after they were due; that both parties are in ...

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