Mitchell et al v. Flagstaff, City of et al

Filing 105

ORDER denying 97 plaintiffs' request for clarification or alternatively request for extension. Signed by Judge Frederick J Martone on 7/13/2012.(KAR)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 Ruth Bradburn Mitchell, individually and) as personal representative of the Estate of) Kenneth Mitchell; Kenneth Christopher) ) Mitchell, ) ) Plaintiffs, ) ) vs. ) ) City of Flagstaff; Roy Taylor; Jane Doe) ) Taylor, ) ) Defendants. ) CV 11-08140-PCT-FJM ORDER 17 The court has before it plaintiffs' request for clarification or alternatively request for 18 extension (doc. 97) and defendants' response (doc. 101).1 19 Our Rule 16 scheduling order set July 20, 2012 as the deadline for parties "to finally 20 supplement all discovery. . . pursuant to Fed. R. Civ. P. 26(a)(3), of all exhibits to be used 21 and all witnesses to be called at trial" (doc. 25 at 2) (emphasis in original). Plaintiffs ask for 22 clarification whether a computer animation that they plan to develop, which they characterize 23 as a demonstrative exhibit and "an illustration of the conclusions already reached by 24 [p]laintiffs' experts," must be disclosed by July 20, 2012. Mot. at 2. 25 26 27 28 1 Plaintiffs' motion fails to comply with LRCiv 7.2(j)'s requirement that moving counsel certify that they personally consulted with the opposing party prior to filing the motion. 1 The answer is yes. Rule 26(a)(2)(B)(iii), Fed. R. Civ. P. requires that an expert report 2 contain "any exhibits that will be used to summarize or support" the expert's opinions. This 3 includes animations, demonstrative or otherwise, intended to illustrate an expert's 4 conclusions. See Raley v. Hyundai Motor Co., Ltd., CIV-08-0376-HE, 2010 WL 545860, 5 at *3 (W.D.Okla. Feb. 9, 2010) (regardless of whether experts' exhibits were substantive or 6 demonstrative, they were required to be disclosed pursuant to Rule 26(a)(2)(B)(iii), Fed. R. 7 Civ. P.). Rule 26(e)(2), Fed. R. Civ. P. requires that supplementation of information 8 contained in an expert report "must be disclosed by the time the party's pretrial disclosures 9 under Rule 26(a)(3) are due." Our scheduling order set this deadline as July 20, 2012. 10 Alternatively, plaintiffs ask that the July 20, 2012 supplementation deadline be 11 extended "to allow sufficient time for demonstrative exhibits to be prepared with all 12 discovery taken into consideration." Mot. at 4. Scheduling orders "may be modified only 13 for good cause." Fed. R. Civ. P. 16(b)(4). Plaintiffs have not identified good cause for an 14 extension here. The scheduling order is crafted to require final supplementation before the 15 close of all discovery to allow the parties a meaningful opportunity to review each other's 16 materials and prepare any rebuttal. Extending the final supplementation deadline will upset 17 the remaining deadlines. The scheduling order was entered over seven months ago, affording 18 the parties ample time to plan ahead in order to meet the final supplementation deadline. 19 20 21 IT IS ORDERED DENYING plaintiffs' request for clarification or alternatively request for extension (doc. 97). DATED this 13th day of July, 2012. 22 23 24 25 26 27 28 -2-

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