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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ruth Bradburn Mitchell, individually and)
as personal representative of the Estate of)
Kenneth Mitchell; Kenneth Christopher)
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Mitchell,
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Plaintiffs,
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vs.
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City of Flagstaff; Roy Taylor; Jane Doe)
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Taylor,
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Defendants.
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CV 11-08140-PCT-FJM
ORDER

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The court has before it plaintiffs' request for clarification or alternatively request for
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extension (doc. 97) and defendants' response (doc. 101).1

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Our Rule 16 scheduling order set July 20, 2012 as the deadline for parties "to finally
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supplement all discovery. . . pursuant to Fed. R. Civ. P. 26(a)(3), of all exhibits to be used
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and all witnesses to be called at trial" (doc. 25 at 2) (emphasis in original). Plaintiffs ask for
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clarification whether a computer animation that they plan to develop, which they characterize
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as a demonstrative exhibit and "an illustration of the conclusions already reached by
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[p]laintiffs' experts," must be disclosed by July 20, 2012. Mot. at 2.
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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.

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The answer is yes. Rule 26(a)(2)(B)(iii), Fed. R. Civ. P. requires that an expert report

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contain "any exhibits that will be used to summarize or support" the expert's opinions. This

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includes animations, demonstrative or otherwise, intended to illustrate an expert's

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conclusions. See Raley v. Hyundai Motor Co., Ltd., CIV-08-0376-HE, 2010 WL 545860,

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at *3 (W.D.Okla. Feb. 9, 2010) (regardless of whether experts' exhibits were substantive or

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demonstrative, they were required to be disclosed pursuant to Rule 26(a)(2)(B)(iii), Fed. R.

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Civ. P.). Rule 26(e)(2), Fed. R. Civ. P. requires that supplementation of information

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contained in an expert report "must be disclosed by the time the party's pretrial disclosures

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under Rule 26(a)(3) are due." Our scheduling order set this deadline as July 20, 2012.

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Alternatively, plaintiffs ask that the July 20, 2012 supplementation deadline be

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extended "to allow sufficient time for demonstrative exhibits to be prepared with all

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discovery taken into consideration." Mot. at 4. Scheduling orders "may be modified only

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for good cause." Fed. R. Civ. P. 16(b)(4). Plaintiffs have not identified good cause for an

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extension here. The scheduling order is crafted to require final supplementation before the

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close of all discovery to allow the parties a meaningful opportunity to review each other's

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materials and prepare any rebuttal. Extending the final supplementation deadline will upset

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the remaining deadlines. The scheduling order was entered over seven months ago, affording

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the parties ample time to plan ahead in order to meet the final supplementation deadline.

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IT IS ORDERED DENYING plaintiffs' request for clarification or alternatively
request for extension (doc. 97).
DATED this 13th day of July, 2012.

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