Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On August 3, 2005, the Court held a conference call with the parties. Defense ) ) Plaintiff/Counterdefendant, ) ) vs. ) ) Harlem Globetrotters International, Inc.,) et al., ) ) D efendant s /Counterclaimants. ) ) M eadowlark Lemon, a married man, No. CV-04-0299-PHX-DGC CV-04-1023-PHX-DGC IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

ORDER

counsel expressed concern about the expert report produced by Plaintiffs' damages expert on July 22, 2005, explaining that it contained minimal information and expressed no opinion on the subject of damages. Plaintiffs' counsel explained that Plaintiffs only recently have

received relevant damages discovery, including several hundred pages of documents, and that Plaintiffs are continuing to work with Defendants to obtain information necessary to the formation of opinions by Plaintiffs' experts. The original Case M anagement Order in this litigation required Plaintiffs to "provide full and complete exp ert disclosures as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than February 25, 2005." Doc. #26 ¶ 5(a). The order

further advis ed the parties that "the Court intends to enforce the deadlines set forth in this Order, and should plan their litigation activities accordingly." Id. ¶ 10. The Amended Case M anagement Order entered after consolidation of these cases contained the same

requirement for "full and complet e exp ert disclosures" by February 25, 2005, and the same

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admonition that the deadlines are real. Doc. #79 ¶¶ 5(a), 10. In an Order dated April 8, 2005, the Court extended the deadline for dis clos ure of Plaintiffs' expert reports, but again required Plaintiffs to "provide full and complete expert disclosures as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure." Doc. #114 ¶ 2. As seen by these orders, the Court rep eat edly has advised the parties that full and complete expert reports would be required in accordance with Rule 26(a)(2) and on the schedule set by the Court. Rule 26(a)(2) in turn requires that exp ert reports "contain a

complete statement of all op inions to be expressed [by the expert] and the basis and reasons therefor." Fed. R. Civ. P. 26(a)(2)(B) (emphasis added). The Advisory Committee N otes to Rule 26 (1993 Amendments) make clear that the report should "set fort h t he substance of the [expert's] direct examination, [and] should be written in a manner that reflects the testimony to be given by the witness . . . ." Plaintiffs' disclosure of July 22, 2005, which contains no opinion on damages (other than the conclusion that damages cannot be calculated on the existing record), clearly does not comply with the Court's orders or Rule 26(a)(2)(B). Plaintiffs' couns el argued during the conference call that they did not have sufficient information to make full disclosures on July 22, 2005, and that relevant dis covery is s t ill being provided by Defendants. But even if the Court assumes that Plaintiffs made timely requests for information and that the informat ion was not provided as requested, Plaintiffs' counsel should have contacted the Court to obtain an adjustment of the existing litigation s chedule when they were was unable to comply with the Court's clear orders. Plaintiffs' counsel should not have

produced an incomplete report in violation of the Court's orders. The Court has cons idered striking the report of Plaintiffs' expert and denying Plaintiffs further opportunity for expert disclosures, but this is too harsh a sanction. Instead, the Court will adjust the disclosure schedule slightly, permitting Plaintiffs to file a report that complies with the Court's previous orders. Defendant s w ill then be given an opportunit y to file a responsive report. Because this adjustment will consume all of the
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remaining time in the litigation schedule, Plaintiffs will not be permitted to file a rebuttal report. Loss of the rebut t al rep ort will be the sanction Plaintiffs incur for their failure to comply with the Court's orders. Plaintiffs and Defendant s are cautioned that expert disclosures must be full and complete and mus t contain all opinions to be expressed by the experts. The parties should not plan on filing supplemental expert opinions. The supplement at ion permitted by

Rule 26(e)(1) must be made "by the time the parties' disclosures under Rule 26(a)(3) are due." Rule 26(a)(3) in turn states that disclosures must be made at leas t 30 day s before trial "[u]nless ot herw ise directed by the court." Fed. R. Civ. P. 26(a)(3)(C). In this Order and previous orders, the Court has otherwise directed. must be made by the dates set forth below. IT IS ORDERED: 1. Plaintiffs shall provide full and complete expert disclosures as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than August 19, 2005. 2. Defendants shall provide full and complete expert disclosures as required by Rule 26(a)(2)(A)-(C) no later than S eptember 16, 2005. 3. 4. Expert depositions shall be completed no later than S eptember 30, 2005. All other terms of the Court's Order of A p ril 8, 2005 (Doc. #114) and the Amended Case M anagement Order (Doc. #79) shall remain in effect. DATED this 3rd day of August, 2005. F ull and complete expert disclosures

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