On March 1, 2013, the parties filed a document styled Joint Statement Re Discovery Dispute (Joint Statement) (ECF 4364). By this document, defendants move to compel plaintiffs to produce their five experts for deposition by March 15, 2013, and to produce their experts' reports at least two days before the scheduled depositions. Plaintiffs seek a protective order prohibiting defendants from compelling depositions of plaintiffs' experts or production of draft expert reports or, in the alternative, limiting the time for any expert depositions to after March 15, 2013, when the experts' reports will have been filed with the court.
The dispute at bar arises in connection with defendants' motion to terminate this action and to vacate the judgment and orders entered herein pursuant to Fed. R. Civ. P. 60(b)(5) (hereafter "termination motion"). Defendants' termination motion was filed on January 7, 2013 (ECF 4275). Because defendants seek termination under 18 U.S.C. § 3626(b), thereby implicating the automatic stay provisions of 18 U.S.C. § 3626(e)(2) and (3), on January 29, 2013 this court issued an order setting the following schedule for proceedings on defendants' termination motion so that it can be timely*fn1 heard:
1. Defendants shall cooperate fully in discovery propounded by plaintiffs so that all discovery required to respond to the motion to terminate, including but not limited to depositions of all individuals who have tendered declarations in support of said motion, has been completed by March 1, 2013.
2. Plaintiff's Opposition to defendants' motion to terminate is due no later than March 15, 2013, at 4:30 p.m.; [and]
3. Defendants' Reply, if any, is due no later than March 22, 2013, at 4:30 p.m.
Order filed January 29, 2013 (ECF 4316), at 4. Oral argument on the motion is set for March 27, 2013. Id.
Defendants contend that considerations of fundamental fairness require that they be given an opportunity to review plaintiffs' expert reports and depose those experts, and to do so with sufficient time remaining to prepare their reply brief. Plaintiffs counter that defendants worked with their own experts, with no notice to plaintiffs, for a period of eighteen months prior to filing the termination motion and that plaintiffs have had only six weeks to conduct discovery, expert inspections, expert report writing, and prepare their opposition to the motion and that there is not enough time to make the experts available for deposition in advance of March 15, when their reports will be filed with plaintiffs' opposition to the termination motion. Plaintiffs also contend that "[d]efendants sent multiple attorneys and CDCR officials to all of plaintiffs' expert prison tours" and that defense counsel received a copy of every document provided to plaintiffs' experts on those tours. Joint Statement at 2.
After review of the record, and good cause appearing, IT IS HEREBY ORDERED that:
1. Defendants' March 1, 2013 motion to compel expert depositions and reports on or prior to March 15, 2013 is denied;
2. Plaintiffs' March 1, 2013 motion for a protective order is granted in part in that plaintiffs will not be required to produce expert reports or make their experts available for deposition on or prior to March 15, 2013; and
3. The provisions of paragraph 2 notwithstanding, plaintiffs shall produce any expert reports they ...