Whitewater West Industries, LTD. v. Pacific Surf Designs, Inc. et al

Filing 140

ORDER granting in part and denying in part 121 Motion for Order Proposed Pretrial Order due by 2/4/2019. Final Pretrial Conference set for 2/11/2019 10:30 AM before Judge Roger T. Benitez. Mandatory Settlement Conference set for 11/5/2018 09:30 AM before Magistrate Judge Barbara Lynn Major. Signed by Magistrate Judge Barbara Lynn Major on 6/12/2018. (anh)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 10 11 ORDER GRANTING IN PART DEFENDANTS’ MOTION TO CONTINUE EXPERT REPORT DEADLINE Plaintiff, 8 9 Case No.: 17CV1118-BEN(BLM) WHITEWATER WEST INDUSTRIES, LTD., v. PACIFIC SURF DESIGNS, INC. AND FLOW SERVICES, INC., [ECF No. 121] Defendants. 12 13 14 AND RELATED COUNTERCLAIMS 15 16 On May 8, 2018, Defendants filed an Ex Parte Application to Extend Expert Report 17 Deadline. See ECF No. 121 (“Mot.”). Defendants seek an order continuing the remaining 18 pretrial deadlines. Mot. at 2. Defendants are seeking ex parte relief because the current 19 deadline for expert reports is May 18, 2018. Id. In support, Defendants argue that Plaintiff still 20 has at least 7500 documents to produce that are responsive to Defendants’ January 2018 ESI 21 requests and which Defendants need prior to conducting various depositions and discussions 22 with their experts. Id. Defendants note that while Plaintiff originally agreed to produce the 23 documents the week of April 23, 2018, it has not done so and instead promised to produce them 24 on May 8, 2018. Id. In further support, Defendants argue that because the only dates provided 25 by Plaintiff for the deposition of Plaintiff’s president, Mr. Geoff Chutter, are May 16-18, 2018, 26 Defendants are unable to have their expert use Mr. Chutter’s testimony in his or her opening 27 report with the current deadline. Id. at 2-3, 5. Finally, Defendants argue that if its pending 28 motion to compel is granted, Plaintiff will be required to produce additional documents and 1 17CV1118-BEN(BLM) 1 witnesses for deposition. Id. at 3, 5-6. Defendants note that having their expert produce a 2 report now and simply supplement it later after discovery is produced is inefficient and “not 3 practicable” without a continuance of the deadlines. Id. at 7. 4 On May 9, 2018, Plaintiff filed an opposition to the motion. See ECF No. 122 (“Oppo.”). 5 Plaintiff contends that the motion was filed in violation of the Local Rules and Chambers Rules 6 because Defendants failed to inform Plaintiff of their plan to file the instant ex parte motion and 7 failed to meet and confer regarding the motion.1 Oppo. at 2-4. Plaintiff also contends that 8 Defendants were aware of the “purportedly new reasons” to continue the deadlines in this matter 9 when they submitted the joint motion to continue the fact discovery deadline on April 26, 2018. 10 Id. at 5. Plaintiff states that there is no good cause for the requested relief because Defendants’ 11 failure to timely retain their expert is the motivation behind the request, not Plaintiff’s failure to 12 comply with discovery. Id. at 5-6. Plaintiff notes that Defendants failed to provide any details 13 regarding how the pending discovery relates to their expert reports and that one of Defendants’ 14 experts has already submitted a report while the other expert is solely a rebuttal expert to 15 Plaintiff’s damages expert.2 Id. at 6. Plaintiff contends that the requested relief is due in part 16 to Defendants’ belated May 1, 2018 disclosure of expert James Carmichael, which is not good 17 cause for continuing the case deadlines. Id. at 7. Plaintiff further contends that Defendants 18 were aware of the pending ESI requests, but did not claim they were relevant to expert discovery 19 until after they retained Mr. Carmichael. Id. Additionally, Plaintiff notes that the fact that 20 Defendants were aware of Mr. Chutter and chose to wait to notice his deposition for April 27, 21 2018, the end of fact discovery at that time, does not demonstrate diligence, and that 22 Defendants’ pending motion to compel [see ECF No. 105] does not reference expert discovery 23 and only seeks an extension of the fact discovery deadline. Id. at 9-10. Finally, Plaintiff contends 24 25                                                         27 Plaintiff notes that Defendants’ failure to comply with the Local Rules constitutes a sanctionable act and requests that at the very least, the Court “remind Defendants of their professional responsibilities to the Court and counsel.” Id. at 5, n.1. 28 2 26 1 Plaintiff notes that none of the pending discovery requests relate to damages. Oppo. at 6. 2 17CV1118-BEN(BLM) 1 that Defendants have not shown good cause to continue all dates and requests that if the Court 2 is inclined to grant Defendants’ request, that the continuance be limited to two weeks and apply 3 to Plaintiff and Defendants equally. Id. at 11-12. 4 On May 11, 2018, Defendants filed Supplemental Evidence in Support of Ex Parte 5 Application to Extend Expert Report Deadline. See ECF No. 123 (“Mot. Supp.”). Defendants 6 dispute Plaintiff’s contention that it made a full and complete production on May 8, 2018. Id. at 7 3. In support, Defendants argue that Plaintiff produced 13,123 documents which was “well 8 beyond the 7,500 documents that Plaintiff had represented” and that the documents were 9 delivered on 9:44 p.m. on May 8, 2018 with a URL to download a zip file that was too 10 cumbersome to download, requiring Plaintiff to send a flash drive with the load file to 11 Defendants’ office on May 9, 2018. Defendants further argue that this large late production 12 provides additional good cause for the requested extension. Id. 13 On May 11, 2018, Plaintiff filed a Response to Defendants’ Notice of Supplemental 14 Authority. ECF No. 124. Plaintiff contends that Defendants’ Supplemental Evidence amounts to 15 “an unauthorized reply brief” and compels Plaintiff to respond to Defendants’ “deliberate 16 mischaracterization of Plaintiff’s ESI production.” 17 Supplemental Evidence does not actually present any new evidence, (2) it produced fewer 18 documents than anticipated, not more, and (3) Defendants did not try to access the file transfer 19 link until after the flash drive was delivered. 20 Defendants should be sanctioned. Id. at 5-6. Id. at 2. Id. at 2-5. Plaintiff notes that (1) the Plaintiff further contends that 21 Once a Rule 16 scheduling order is issued, dates set forth therein may be modified only 22 “for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also ECF No. 82 at 23 8 (stating that dates and times “will not be modified except for good cause shown”). The Rule 24 16 good cause standard focuses on the “reasonable diligence” of the moving party. Noyes v. 25 Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir. 2007) (citing Johnson v. Mammoth Recreations, 26 Inc., 975 F.2d 604, 609 (9th Cir. 1992)); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-95 27 (9th Cir. 2000) (stating Rule 16(b) scheduling order may be modified for “good cause” based 28 primarily on diligence of moving party). Essentially, “the focus of the inquiry is upon the moving 3 17CV1118-BEN(BLM) 1 party’s reasons for seeking modification.” Johnson, 975 F.2d at 609. However, a court also 2 may consider the “existence or degree of prejudice to the party opposing the modification. . . .” 3 Id. 4 5 In light of the Court’s discovery order [see ECF No. 133], the Court finds good cause and CONTINUES all remaining dates for all parties as follows: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Description Rule 26(a)(2)(A) and (B) Disclosures Rule 26(a)(2)(D) Supp. Disclosures Expert Discovery Completion Pretrial Motion Filing Deadline Confidential Settlement Statement Mandatory Settlement Conference Pretrial Disclosures L.R. 16.1(f)(4) Meeting of Counsel Plaintiff’s Proposed Pretrial Order due to Defendants Proposed Final Pretrial Conference Order Final Pretrial Conference 22 23 24 Current Date May 18, 2018 New Date August 17, 2018 June 8, 2018 September 7, 2018 July 6, 2018 October 5, 2018 July 20, 2018 October 19, 2018 August 3, 2018 October 26, 2018 August 13, 2018 at 9:30 a.m. September 17, 2018 September 24, 2018 October 1, 2018 November 5, 2018 at 9:30 a.m. October 8, 2018 October 15, 2018 at 10:30 a.m. February 4, 2019 January 14, 2019 January 21, 2019 January 28, 2019 February 11, 2019 at 10:30 a.m. IT IS SO ORDERED. Dated: 6/12/2018 25 26 27 28 4 17CV1118-BEN(BLM)

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