Free Declaration - District Court of Arizona - Arizona

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EXHIBIT A J
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Case 2:04-cv-00299-DGC Document 191-2 Filed 10/27/2005 Page 1 014 J

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6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
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9 Meadowlark Lemon, amarried man, ; 0No.
Plaintiff/Counterdefendant, )
10 )
vs. )
ll ) ORDER ‘
Harlem Globetrotters International, Inc.,)
I2 et al., )
13 Defendants/Counterclaimants.; I
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15 On August,3, 2005, the Court held a conference call with the parties. Defense
16 counsel expressed concern about the expert report produced by Plaintiffs’ damages expert
17 on July 22, 2005, explaining that it contained minimal information and expressed no opinion
18 on the subject of damages. Plaintiffs’ counsel explained that Plaintiffs only recently have
19 received relevant damages discovery, including several hundred pages of documents, and
20 that Plaintiffs are continuing to work with Defendants to obtain information necessary to
21 the formation of opinions by Plaintiffs’ experts.
22 The original Case Management Order in this litigation required Plaintiffs to "provide
23 full and complete expert disclosures as required by Rule 26(a)(2)(A)-(C) of the Federal
24 Rules of Civil Procedure no later than February 25, 2005." Doc. #26 fl 5(a). The order
25 further advised the parties that "the Court intends to enforce the deadlines set forth in this 1
26 _ Order, and should plan their litigation activities accordingly? Id. 1[ l0. The Amended Case `
27 Management Order entered after consolidation of these cases contained the same
28 requirement for "full and complete expert disclosures" by February 25, 2005, and the same
ase 2:04-cv—00299-DGC Document 191-2 Filed 10/27/2005 Page 2 014

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l admonition that the deadlines are real. Doc. #79 M 5(a), 10. In an Order dated April 8, 2005, 1
2 the Court extended the deadline for disclosure of Plaintiffs’ expert reports, but again
3 required Plaintiffs to "provide full and complete expert disclosures as required by
4 Rule 26(a)(2)(A)-(C) ofthe Federal Rules of Civil Procedure." Doc. #11412. l
5 As seen by these orders, the Court repeatedly has advised the parties that full and R
6 complete expert reports would be required in accordance with Rule 26(a)(2) and on the {
7 schedule set by the Court. Rule 26(a)(2) in turn requires that expert reports "contain a
8 complete statement of all opinions to be expressed_[by the expert] and the basis and l I
9 reasons therefor." Fed. R. Civ. P. 26(a)(2)(B) (emphasis added). The Advisory Committee
10 Notes to Rule 26 (1993 Amendments) make clear that the report should “set forth the i
11 substance of the [expe1t’s] direct examination, [and] should be written in a manner that i
12 reflects the testimony to be given by the witness .... " I
13 Plaintiffs’ disclosure of July 22, 2005, which contains no opinion on damages (other
14 than the conclusion that damages cannot be calculated on the existing record), clearly does
15 not comply with the Court’s orders or Rule 26(a)(2)(B). .Plaintiffs’ counsel argued during
16 the conference call that they did not have sufficient information to make full disclosures
17 on July 22, 2005, and that relevant discovery is still being provided by Defendants. But
18 even if the Court assumes that Plaintiffs made timely requests for information and that the
19 information was not provided as requested, Plaintiffs’ counsel should have contacted the
20 Court to obtain an adjustment of the existing litigation schedule when they were was
21 unable to comply with the Court’s clear orders. Plaintiffs’ counsel should not have
22 produced an incomplete report in violation ofthe Court’s orders.
23 The Court has considered striking the report of Plaintiffs’ expert and denying
24 Plaintiffs further opportunity for expert disclosures, but this is too harsh a sanction.
25 Instead, the Court will adjust the disclosure schedule slightly, permitting Plaintiffs to file
26 I a report that complies with the Court’s previous orders. Defendants will then be given an I
27 opportunity to file a responsive report. Because this adjustment will consume all of the
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C se 2:04-cv—00299-DGC Document 191-2 Filed 10/27/2005 Page 3 014 `

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1 remaining time in the litigation schedule, Plaintiffs will not be permitted to file a rebuttal i
2 report. Loss of the rebuttal report will be the sanction Plaintiffs incur for their failure to
3 comply with the Court’s orders. A J
4 Plaintiffs and Defendants are cautioned that expert disclosures must be full and
5 complete and must contain all opinions to be expressed by the experts. The parties should i
6 not plan on filing supplemental expert opinions. The supplementation permitted by
7 Rule 26(e)(l) must be made "by the time the parties’ disclosures under Rule 26(a)(3) are i
8 due."e Rule 26(a)(3) in turn states that disclosures must be made at least 30 days before trial i
9 "[u]nless otherwise directed by the court." Fed. R.- Civ. P. 26(a)(3)(C). In this Order and Q
10 previous orders, the Court has otherwise directed. Full and complete expert disclosures l
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11 must be made by the dates set forth below. 1
12 IT IS ORDERED:
13 1. Plaintiffs shall provide full and complete expert disclosures as required by
14 Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than p
15 August 19, 2005. l
16 2. Defendants shall provide full and complete expert disclosures as required by
17 Rule 26(a)(2)(A)-(C) no later than September 16, 2005. i
18 3. Expert depositions shall be completed no later than September 30, 2005.
19 4. All other terms of the Court’s Order of April 8, 2005 (Doc. #114) and the
20 · Amended Case Management Order (Doc. #79) shall remain in effect.
21 DATED this 3“’ day of August, 2005. Q
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27 Llrutcd States District Judge
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