Dowling et al v. Arpaio et al

Filing 243

ORDER that the Arpaio Defendants' 199 Motion to Strike Portions of D.P. Van Blaricom's Supplemental Expert Report is denied; the parties shall have until 12/16/11 to depose Plaintiffs' expert, D.P. Van Blaricom; vacating oral argum ent on Defendants' 199 Motion to Strike and continuing oral argument on the follow pending motions: the Arpaio Defendants' Second 211 Motion for Summary Judgment, the Maricopa County Defendants' Second 212 Motion for Summary Jud gment, Plaintiffs' 227 Motion to Strike 232 Statements of Fact, and the Maricopa County Defendants' 237 Motion to Strike Plaintiffs' Omnibus Statement of Facts from 1/17/12 to 03/05/12 at 11:00 a.m. in Courtroom 503, 401 W. Washington Street, Phoenix, AZ 85003. Signed by Judge James A Teilborg on 11/17/11. (see attached pdf for complete details) (ESL)

1

WO

2
3
IN THE UNITED STATES DISTRICT COURT
4
FOR THE DISTRICT OF ARIZONA
5
6
7
8
9
10
11
12
13
14

Sandra Dowling and Dennis Dowling,)
)
husband and wife,
)
)
Plaintiffs,
)
)
vs.
)
)
Sheriff Joseph Arpaio and Ava Arpaio,)
husband and wife; Maricopa County Board)
of Supervisors; Maricopa County, a)
Municipal entity; John Does I-X; Jane)
Does I-X; Black Corporations I-V; and)
)
White Partnerships I-V,
)
)
Defendants.
)
)

No. CV 09-01401-PHX-JAT
ORDER

15
16
Pending before the Court is the Arpaio Defendants’ Motion to Strike Portions of D.P.
17
Van Blaricom’s Supplemental Expert Report (Doc. 199). The Maricopa County Defendants
18
have filed a Joinder thereto (Doc. 200). Plaintiffs have filed a Response (Doc. 205) and
19
Defendants have filed a Reply (Doc. 206 and Doc. 207-Joinder Reply). The Court now rules
20
on the Motion.
21
I.

BACKGROUND

22
On July 5, 2011, Plaintiffs provided Defendants with a Fourth Supplemental
23
Disclosure Statement, which included an updated report from their expert, D.P. Van
24
Blaricom. The report contained a new paragraph that was not contained in Mr. Van
25
Blaricom’s previous expert reports. Defendants argue that this new paragraph (¶ 10) should
26
be stricken because it adds new opinions not previously disclosed and is, thus, untimely and
27
in violation of the expert disclosure deadlines set by this Court.
28
It is uncontested that Plaintiffs timely disclosed Mr. Van Blaricom’s original report

1

and the first supplement thereto.1 Similarly, Defendants timely disclosed their rebuttal expert

2

report.2 On March 3, 2011, Defendants took the deposition of Mr. Van Blaricom. Defendant

3

Sheriff Arpaio was deposed on June 8, 2011, Supervisor Stapley was deposed on May 12,

4

2011, and Supervisor Wilcox was deposed on April 21, 2011.

5

Plaintiffs argue that the new paragraph of Mr. Van Blaricom’s report is not untimely,

6

but is the proper subject of a supplemental disclosure statement because it is based on new

7

information obtained during the depositions of Sheriff Arpaio and Supervisors Stapley and

8

Wilcox.

9

II.

LEGAL STANDARD

10

With regard to expert reports,

11

the party’s duty to supplement extends both to information included in the
report and to information given during the expert’s deposition. Any additions
or changes to this information must be disclosed by the time the party’s pretrial
disclosures under 26(a)(3) are due.

12
13
14

Fed. R. Civ. P. 26(e)(1).

15

Defendants argue that the additional information provided in the expert report

16

“exceeds the bounds of permissible supplementation” envisioned by Rule 26(e) and thus the

17

new information should be excluded under Federal Rule of Civil Procedure 37(c)(1), which

18

provides

19
20

[i]f a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.

21
22

In response, Plaintiffs argue that Rule 26(e) envisions the circumstance where

23

Plaintiffs have gained new information throughout the discovery process and have amended

24
25
1

26
27
28

Both reports were disclosed by the October 25, 2010 expert disclosure deadline set
by this Court.
2

The rebuttal expert report was disclosed by the February 28, 2011 rebuttal expert
disclosure deadline.
-2-

1

their expert report solely in response to that new information, which was not available prior

2

to the additional discovery.

3

Here, the expert disclosure deadline occurred before Plaintiffs were able to depose

4

Sheriff Arpaio and Supervisors Stapley and Wilcox.

5

information obtained during these depositions led to the supplementation of its expert report.

6

Defendants contend that this argument should be rejected because “[i]f Plaintiffs wanted Mr.

7

Van Blaricom to opine regarding policy and practice, then they should have conducted the

8

necessary discovery before their expert disclosure deadline.” Notably, Defendants do not

9

argue that this information was somehow available to Plaintiffs before the expert discovery

10

deadline. Further, Plaintiffs have provided the Court with ample evidence that they worked

11

diligently to take the depositions of Arpaio and Supervisors Stapley and Wilcox. Under

12

such circumstances, the Court cannot find that Plaintiffs were able to conduct the necessary

13

discovery before their expert disclosure deadline.

Plaintiffs argue that the new

14

Plaintiffs argue that Defendants should have anticipated supplementation of their

15

expert report, because, in a timely disclosed version of Mr. Van Blaricom’s report, he noted

16

“[a]lthough discovery had not yet been completed to enable my review of all relevant

17

documents, my deposition was taken by defense counsels Lisa Wahlin and Larry Crown on

18

March 30, 2011.” (Doc. 205-1 at 3, ¶ 5). While this could have signaled to Defendants that

19

Mr. Van Blaricom’s opinion would be supplemented in the future based on further discovery,

20

it also suggests that Plaintiffs may have anticipated that their expert would supplement his

21

report based on further discovery. In both cases, the safest course of action for both Plaintiffs

22

and Defendants would have been to bring this anticipated problem to the Court’s attention

23

before discovery closed.

24

However, the Court does not believe Plaintiffs have acted in bad faith and

25

acknowledges that other district courts have reach disparate conclusions on this issue.3 As

26
27
28

3

Both Plaintiffs and Defendants have cited to decisions by various district courts that
support their positions. See Docs. 199, 205, and 206.
-3-

1

applied to the facts in this case, the Court does not believe that a Rule 37(c) sanction would

2

be appropriate. However, Defendants have argued that they will be prejudiced if the Court

3

does not exclude the additional paragraph of Mr. Van Blaricom’s expert report. Defendants

4

have requested that, if the Court finds that exclusion is inappropriate under Rule 37(c), the

5

Court reopen discovery so that Defendants may depose Mr. Van Blaricom on this limited

6

information and allow them to amend their rebuttal expert report. The Court finds that, as

7

applied to the facts of this case, this procedure is appropriate.

8

Accordingly,

9

IT IS ORDERED that the Arpaio Defendants’ Motion to Strike Portions of D.P. Van

10
11
12
13
14

Blaricom’s Supplemental Expert Report (Doc. 199) is denied.
IT IS FURTHER ORDERED that the parties shall have until December 16, 2011
to depose Plaintiffs’ expert, D.P. Van Blaricom.4
IT IS FURTHER ORDERED that the parties shall have until January 9, 2012 to
make rebuttal expert disclosures.5

15

IT IS FURTHER ORDERED that Defendants shall have until January 16, 2012 to

16

supplement their motions for summary judgment. This supplement shall not exceed five

17

pages and shall only contain facts and law relating to new information obtained during the

18

deposition and/or rebuttal expert disclosure that are the subjects of this Order.

19

IT IS FURTHER ORDERED that Plaintiffs shall have until January 23, 2012 to

20

respond to any supplemental motion for summary judgment. The response shall not exceed

21

five pages.

22

IT IS FURTHER ORDERED that Defendants shall have until January 30, 2012 to

23

reply in support of any supplemental motion for summary judgment. The reply shall not

24
25
26

4

The deposition shall be limited solely to new information contained in Mr. Van
Blaricom’s amended report.
5

27
28

Rebuttal expert disclosures shall be limited solely to new information contained in
Mr. Van Blaricom’s amended report and/or new information obtained during the deposition
of Mr. Van Blaricom regarding information contained in the amended report.
-4-

1

exceed five pages.

2

IT IS FINALLY ORDERED vacating oral argument on Defendants’ Motion to

3

Strike (Doc. 199)6 and continuing oral argument on the follow pending motions: the Arpaio

4

Defendants’ Second Motion for Summary Judgment (Doc. 211), the Maricopa County

5

Defendants’ Second Motion for Summary Judgment (Doc. 212), Plaintiffs’ Motion to Strike

6

232 Statements of Fact (Doc. 227), and the Maricopa County Defendants’ Motion to Strike

7

Plaintiffs’ Omnibus Statement of Facts (Doc. 237) from January 17, 2012 to March 5, 2012

8

at 11:00 a.m. in Courtroom 503, 401 W. Washington Street, Phoenix, AZ 85003. To assist

9

the court reporter, the parties shall prepare and bring to the oral argument a Table of

10

Authorities, in alphabetical order, which includes all of the authorities on which the parties

11

will rely at oral argument. The Table of Authorities shall not exceed the scope of the parties

12

pleadings.

13

DATED this 17th day of November, 2011.

14
15
16
17
18
19
20
21
22
23
24
25
26
27

6

28

motion.

The Court notes that neither Plaintiffs or Defendants requested oral argument on this
-5-