Vieste, LLC et al v. Hill Redwood Development, LTD. et al

Filing 335

Order by Magistrate Judge Donna M. Ryu granting 329 Plaintiffs' Administrative Motion for Relief from Expert Disclosure and Discovery Deadlines.(dmrlc1, COURT STAFF) (Filed on 6/3/2011)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
NORTHERN DISTRICT OF CALIFORNIA
8
9
VIESTE, LLC, ET AL.,

No. C-09-04024 JSW (DMR)

Plaintiffs,
11
For the Northern District of California

United States District Court

10
v.
12

ORDER GRANTING PLAINTIFFS’
ADMINISTRATIVE MOTION FOR
RELIEF FROM EXPERT DISCLOSURE
AND DISCOVERY DEADLINES

HILL REDWOOD DEVELOPMENT, ET AL.,
13
14
15

Defendants.
___________________________________/
On May 27, 2011, Plaintiffs filed a motion for administrative relief pursuant to Civil Local

16

Rule 7-11. Plaintiffs’ motion seeks permission for late disclosure of an expert report on alter ego

17

issues; Defendants filed a response. See Docket Nos. 329-332. The matter is deemed submitted for

18

immediate determination without hearing. Civil L.R. 7-11(c).

19

The deadline for disclosing experts was February 22, 2011, followed by a March 22, 2011

20

cut-off for completion of expert discovery. Docket No. 129. Plaintiffs did not disclose Dr. Nisha

21

Mody’s expert report on alter ego issues until May 6, 2011. Plaintiffs argue that late disclosure is

22

justified by Defendants’ actions in withholding pertinent discovery until March and April 2011,

23

providing incorrect and misleading discovery responses, instructing deponents not to answer

24

questions relating to alter ego issues, and engaging in other discovery abuses. Plaintiffs contend that

25

these discovery failures resulted in Plaintiffs’ inability to engage an expert on this subject until after

26

the disclosure deadline, and that Dr. Mody’s opinions were provided to Defendants without undue

27

delay and more than ninety days before trial.

28

1

Defendants argue that Plaintiffs pursued alter ego issues since at least June 2010, but did not

2

raise the prospect of disclosing an expert on the topic, did not seek relief from the February 22, 2011

3

expert disclosure deadline, and should not be excused from their obligation to meet that deadline.

4

Defendants contend that Plaintiffs timely identified Dr. Mody as a damages expert, but failed to put

5

Defendants on notice that Dr. Mody would also offer opinions on alter ego liability. Finally,

6

Defendants argue that expert opinion on the subject of alter ego is improper under Federal Rule of

7

Evidence 702.

8

As to the question of the timing of Dr. Mody’s May 6, 2011 report, there is ample good

discovery abuses in this case. See Docket Nos. 192, 315, and 334. Among other things, this Court

11
For the Northern District of California

cause supporting Plaintiffs’ delay. Defendants have been sanctioned on three separate occasions for

10

United States District Court

9

noted that Defendants repeatedly violated court-ordered deadlines to produce discovery which

12

impeded Plaintiffs’ ability to conduct alter ego discovery, to engage in expert discovery, and to

13

prepare for summary judgment and trial. Docket No. 334.

14

Defendants argue, however, that Plaintiffs should at least have raised the prospect of an alter

15

ego expert. Plaintiffs could have given timely notice of their intent to name an alter ego expert, and

16

then sought additional time to identify the expert and produce a written report. Under other

17

circumstances, Defendants’ point would be well-taken. Defendants correctly note that the disclosure

18

rules exist at least in part to avoid opportunities for a party to “sandbag” the opposition. However,

19

in the context of this case, Plaintiffs should be given the benefit of the doubt. Plaintiffs have not

20

tried to hide the ball. Defendants concede that Plaintiffs have vigorously pursued the alter ego

21

doctrine for the better part of a year. Plaintiffs’ failure to leave a timely place holder for an alter ego

22

expert is a predictable consequence of Defendants’ significant documented discovery abuses.

23

In granting administrative relief from the expert disclosure deadline, this Court expressly

24

does not rule on the merits of whether the expert report should be excluded under Federal Rule of

25

Evidence 702, or any other basis. Such issues are more appropriately determined by the trial judge

26

in this matter.

27
28

2

1

Plaintiffs’ motion for administrative relief is GRANTED. Plaintiffs shall tender Dr. Mody

2

for deposition regarding expert opinions on the subject of alter ego at a mutually agreeable place and

3

time.

4

Dated: June 3, 2011

I

7

DONNA M. RYU
United States Magistrate Judge

8

NO

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3

A

H

ER

LI

RT

9

u

a M. Ry

onn
Judge D

FO

6

ERED

ORD
T IS SO

R NIA

S
UNIT
ED

5

RT
U
O

S DISTRICT
TE
C
TA

N

F
D IS T IC T O
R

C