Woodson v. Rodriguez et al

Filing 128

ORDER REGARDING APRIL 14, 2011 JOINT DISCOVERY LETTER 124 . Signed by Judge Beeler on 4/28/11. (lblc2, COURT STAFF) (Filed on 4/28/2011)

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UNITED STATES DISTRICT COURT

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Northern District of California

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Oakland Division
THOMAS RAY WOODSON,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 07-04925 CW (LB)

Plaintiff,

ORDER REGARDING APRIL 14, 2011
JOINT DISCOVERY LETTER

v.
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J. RODRIGUEZ, et al.,

[ECF No. 124]

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Defendants.
_____________________________________/

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I. INTRODUCTION
This case involves Plaintiff Thomas Ray Woodson’s claim that prison guards at Salinas Valley

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State Prison used excessive force in violation of the Eighth Amendment and 42 U.S.C. § 1983

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during a search of his cell in March 2006. See Complaint, ECF No. 1.1 The district court referred

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discovery disputes to this court.

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II. PENDING DISCOVERY DISPUTE
On April 14, 2011, the parties filed a joint discovery letter. 4/14/11 Joint Letter, ECF No. 124.

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Defendants ask the court to strike a report by Mr. Woodson’s medical expert, Dr. Steven Graboff,

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and subsequent deposition testimony by Dr. Graboff regarding the report. Id. at 5. Mr. Woodson

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contends the report is a reply to Defendants’ medical expert rebuttal report and therefore,

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Citations are to the Clerk’s Electronic Case File (ECF) with pin cites to numbers at the top
(as opposed to the bottom) of the page.
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appropriate. Id. at 6-12.

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III. DISCOVERY DISPUTE
The discovery deadline for medical expert reports was February 18, 2011 and the expert rebuttal
deadline was March 9, 2011. 2/15/11 Order, ECF No. 111 at 3; 3/10/11 Order, ECF No. 117.2
Mr. Woodson retained Dr. Steven Graboff as his medical expert, and Defendants retained Dr.

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Robert Bowman. 4/14/11 Joint Letter, ECF 124 at 2. The parties exchanged initial medical expert

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reports by the February 18, 2011 deadline. Id. On March 10, the district court granted a stipulation

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to extend the deadline for expert rebuttal reports by one day to March 9. 3/10/11 Order, ECF No.

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117 at 1-2. Defendants produced Dr. Bowman’s rebuttal report on March 9, 2011. 4/14/11 Joint

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On March 15, 2011, Mr. Woodson’s counsel contacted Defendants’ counsel to request an

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For the Northern District of California

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Letter, ECF No. 124 at 2.

extension of time to submit a “reply report” by Dr. Graboff. Id. at 2. Defendants declined the

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request. Id. That same day, Mr. Woodson attempted to directly serve Defendants with a copy of Dr.

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Graboff’s six-page “reply report,” but Defendants’ counsel rejected service. Id. at 2, 8. Plaintiff

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again attempted to provide a copy of Dr. Graboff’s report to Defendants’ counsel shortly before Dr.

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Graboff’s deposition on March 23, 2011, but Defendants counsel again declined service. Id.

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At the deposition, Mr. Woodson’s counsel again offered Defendants’ counsel the opportunity to

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review the report when she admitted it into evidence. Id. Once more, Defendants’ counsel refused

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to review the report because the deadline for rebuttal reports had expired and Mr. Woodson’s

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counsel had not timely requested an extension. Id. at 2. When Plaintiff’s counsel began questioning

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Dr. Graboff about the report, Defendants’ counsel left the deposition. Id. at 2.

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Defendants now ask the court to strike Dr. Graboff’s reply report and his deposition testimony
regarding the report. Id. at 5.

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1. Defendants’ Argument

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Defendants argue this court should strike Dr. Graboff’s additional report and limit his testimony

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These are the final dates. The parties stipulated to modifying the original dates several

times.
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to the opinions expressed in his original report because the additional report was untimely. Id. at 3.

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The deadline for disclosing rebuttal expert reports was March 9, 2011, but Mr. Woodson did not

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attempt to produce what he now classifies as a reply report until March 15, 2011. Id. at 3, 5.

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Defendants argue that Mr. Woodson failed to request additional time from the court and has offered

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no explanation for the late production. Id.

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Defendants further argue that the late production was prejudicial because they were unable to

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investigate the additional opinions in the report prior to Dr. Graboff’s deposition. Id. at 5.

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Furthermore, because Defendants produced their rebuttal report on time, Dr. Graboff had the

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opportunity to review the rebuttal report and prepare a response. Id.

improper because the Federal Rules of Civil Procedure do not contemplate such a report. Id. at 3.

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Defendants also contend that Mr. Woodson’s categorization of the report as a “reply report” is

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The report is thus only proper if it is a supplemental report submitted under Rule 26(e)(2). Id. Even

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if it is a supplemental report, it is improper because the court did not issue an order requiring Mr.

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Woodson to file a supplemental report, Mr. Woodson did not assert that Dr. Graboff’s original report

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was inaccurate or incomplete, and the additional report was not in response to any further discovery.

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Id. at 3-4.

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If the court does not strike the report, Defendants ask to further depose Dr. Graboff regarding the
contents of the report at Mr. Woodson’s expense. Id. at 5-6.

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2. Mr. Woodson’s Argument

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Mr. Woodson contends that Dr. Graboff’s report is not a supplemental report under Rule 26(e),

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rather, it is a “reply report.” Id. at 6. He categorizes it as “simply a short, written disclosure of Dr.

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Graboff’s opinions regarding Dr. Bowman’s March 9, 2011 Rebuttal Report.” Id. The purpose of

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the report was not to disclose new opinions or exceed the scope of proper expert discovery under the

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Rules. Id. Instead, Mr. Woodson sought merely to disclose Dr. Graboff’s thoughts regarding Dr.

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Bowman’s rebuttal report in writing for purposes of full disclosure. Id.

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Mr. Woodson also argues that Defendants have not suffered any prejudice because he gave them

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numerous opportunities to review the report prior to Dr. Graboff’s deposition. Id. at 8.

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Furthermore, Mr. Woodson attempted to produce the report only five days after Defendants
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submitted Dr. Bowman’s rebuttal report and ten days before Dr. Graboff’s deposition, thus

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providing Defendants ample opportunity to review it prior to the deposition. Id. Therefore,

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Defendants’ caused whatever prejudice they allegedly suffered. Id. Unless the court finds that

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Defendants suffered prejudice, Mr. Woodson urges the court to prohibit further depositions of Dr.

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Graboff because Defendants counsel could have finished the deposition but elected to leave before it

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was over. Id. at 10.

Under Federal Rule of Civil Procedure 26(a)(2)(D), absent a stipulation or court order, parties

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must make their expert disclosures “at the times and in the sequence the court orders.” A court may

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exclude information or witnesses from supplying evidence on a motion, at a hearing, or at a trial if a

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party violates the court’s scheduling orders, unless the violation is harmless. Fed. R. Civ. P. 37

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For the Northern District of California

3. Court’s Ruling

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(c)(1).

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The district court granted the parties’ stipulation to extend the deadline to submit rebuttal reports

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for their medical experts to March 9, 2011. 3/10/11 Order, ECF No. 117. Defendants timely

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produced their expert rebuttal report, but Mr. Woodson did not, and instead produced a reply report

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after the deadline. The district court’s original case management order and all of the subsequent

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stipulations modifying those dates do not contemplate reply reports.

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Mr. Woodson’s untimely filing of the report was harmless. The purpose of expert disclosures

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are to help counsel “prepare intelligently for trial and to solicit the views of other experts.” See

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Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010) (citation omitted). Mr.

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Woodson contends – and Defendants do not contest – that the report “elaborates on previously

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disclosed opinions and does not introduce new information.” 4/14/11 Joint Letter, ECF No. 124 at

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7. Thus, in so far as the reply report helps Defendants (1) prepare for Dr. Graboff’s deposition and

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trial and (2) solicit the views of their experts by more specifically articulating Dr. Graboff’s

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previously expressed opinions, Defendants have not suffered any harm by the untimely production.

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If anything, had Defendants accepted service, the reply report would have helped them prepare for

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Dr. Graboff’s deposition. Though Mr. Woodson attempted to produce the report six days after the

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rebuttal expert deadline, Defendants still had ten days to review the report and prepare for Dr.
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Graboff’s deposition. That Defendants’ counsel refused service does not change this fact. What is

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more, trial is not scheduled to begin until August 5, 2011 so Defendants have approximately six

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months to review the reply report and prepare for trial. Lastly, because the reply report offers no

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new opinions or information, either party could have inquired into its substance even if Mr.

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Woodson had not produced it. Accordingly, Mr. Woodson’s late production of the reply report was

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harmless. The court DENIES Defendants’ motion to strike it.

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The court also DENIES Defendants’ request to strike Dr. Graboff’s deposition testimony

reply report was harmless and therefore, exclusion is unwarranted, Mr. Woodson’s counsel was

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permitted to ask Dr. Graboff questions about the substance of the report. If Defendants wish to

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question Dr. Graboff about any of the information contained in that portion of the deposition, they

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following Defendants’ counsel’s departure from the deposition. Because the late production of the

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may do so, but they may only ask questions relating to the reply report. Also, because Defendants’

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counsel had the opportunity to depose Dr. Graboff regarding the substance of the report but elected

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to leave the deposition, Defendants must bear the costs of any further deposition.

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This disposes of ECF No. 124.

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IT IS SO ORDERED

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Dated: April 28, 2011
_______________________________
LAUREL BEELER
United States Magistrate Judge

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