On March 22, 2013, defendants filed a motion pursuant to Fed. R. Civ. P. 37 to exclude the declaration of plaintiffs' expert, Dr. Craig Haney. Defendants contend that they have not received a "meaningful opportunity to depose Dr. Haney" concerning his opinions and that "Plaintiffs' failure to make him available for deposition in advance of the deadline for Defendants' reply brief is not only unfair and prejudicial to Defendants' ability to respond to Plaintiffs' opposition, but it is the equivalent of a denial of due process." Amended Motion to Exclude Testimony of Dr. Craig Haney, filed March 22, 2013 (ECF No. 4490), at 1.
Defendants' motion, which implicitly attacks this court's March 18, 2013 order, without seeking reconsideration of it,*fn1 is without merit. Dr. Haney's expert declaration was filed on March 14, 2013. Expert Declaration of Craig Haney ("Haney Decl.") (ECF No. 4378). In the March 18, 2013 order, this court denied defendants' request to have Dr. Haney made available for deposition by March 19, 2013, but directed plaintiffs to make Dr. Haney available for deposition by no later than March 22, 2013. Order filed March 18, 2013 (ECF No. 4412), at 1. Since March 22, 2013 was the deadline for defendants to file their reply brief, the court authorized defendants to file a supplemental reply based on Dr. Haney's deposition testimony not later than 1:30 p.m. on March 26, 2013. Id.
Defendants have made no showing that plaintiffs did not make Dr. Haney available for deposition pursuant to the court's March 18, 2013 order. Reduced to its essence, defendants' motion is premised solely on their conclusory assertion that even expediting a transcript of the deposition would not leave them sufficient time to use the deposition testimony in a reply brief. See Motion at 3. At most, this might have provided the basis for a request for an additional period of time in which to file the supplemental reply. It is certainly not a basis for striking Dr. Haney's declaration.
Defendants' assertion that plaintiffs' failure to make Dr. Haney available for deposition in advance of the deadline for their reply brief is "equivalent to a violation of due process," is frivolous. First, as explained already, defendants were given additional time to file a supplemental reply brief. Second, on March 22, 2013, defendants filed a ninety-nine page reply brief in support of their motion to terminate this action.*fn2 ECF No. 4487. The reply brief is accompanied by fifty-five declarations (ECF Nos. 4429-4434, 4435-4484), as well as numerous deposition excerpts and other material (ECF No. 4491, Exhs. 1-13). Eleven of those declarations are responsive to Dr. Haney's declaration. See ECF Nos. 4429 (Fischer Decl.); 4430 (Gipson Decl.); 4433 (Sanders Decl.); 4438 (Holland Decl.); 4439 (Walsh Decl.); 4440 (Jensen Decl.); 4458 (Jordan Decl.); 4459 (Cash Decl.); 4480 (Telander Decl.); 4481 (Lizarraga Decl.); and 4482 (Colley Decl.). In addition, in his declaration, Dr. Haney avers that as part of the foundation for his opinion he toured four California prisons and, inter alia, "had numerous conversations with correctional administrators, clinical staff, and line correctional officers, with Defendants' counsel present throughout." Haney Decl. at ¶ 19.
In short, defendants had an opportunity to depose Dr. Haney and an extension of time to incorporate that testimony into a supplemental reply brief. There is no basis for striking his declaration. Accordingly, IT IS HEREBY ORDERED that defendants' March 22, 2013 motion (ECF No. ...