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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ORDER GRANTING IN PART
DEFENDANTS’ MOTION TO CONTINUE
EXPERT REPORT DEADLINE

Plaintiff,

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Case No.: 17CV1118-BEN(BLM)

WHITEWATER WEST INDUSTRIES, LTD.,

v.
PACIFIC SURF DESIGNS, INC. AND FLOW
SERVICES, INC.,

[ECF No. 121]

Defendants.

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AND RELATED COUNTERCLAIMS

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On May 8, 2018, Defendants filed an Ex Parte Application to Extend Expert Report

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Deadline. See ECF No. 121 (“Mot.”).

Defendants seek an order continuing the remaining

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pretrial deadlines. Mot. at 2. Defendants are seeking ex parte relief because the current

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deadline for expert reports is May 18, 2018. Id. In support, Defendants argue that Plaintiff still

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has at least 7500 documents to produce that are responsive to Defendants’ January 2018 ESI

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requests and which Defendants need prior to conducting various depositions and discussions

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with their experts. Id. Defendants note that while Plaintiff originally agreed to produce the

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documents the week of April 23, 2018, it has not done so and instead promised to produce them

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on May 8, 2018. Id. In further support, Defendants argue that because the only dates provided

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by Plaintiff for the deposition of Plaintiff’s president, Mr. Geoff Chutter, are May 16-18, 2018,

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Defendants are unable to have their expert use Mr. Chutter’s testimony in his or her opening

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report with the current deadline. Id. at 2-3, 5. Finally, Defendants argue that if its pending

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motion to compel is granted, Plaintiff will be required to produce additional documents and
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witnesses for deposition. Id. at 3, 5-6. Defendants note that having their expert produce a

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report now and simply supplement it later after discovery is produced is inefficient and “not

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practicable” without a continuance of the deadlines. Id. at 7.

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On May 9, 2018, Plaintiff filed an opposition to the motion. See ECF No. 122 (“Oppo.”).

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Plaintiff contends that the motion was filed in violation of the Local Rules and Chambers Rules

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because Defendants failed to inform Plaintiff of their plan to file the instant ex parte motion and

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failed to meet and confer regarding the motion.1 Oppo. at 2-4. Plaintiff also contends that

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Defendants were aware of the “purportedly new reasons” to continue the deadlines in this matter

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when they submitted the joint motion to continue the fact discovery deadline on April 26, 2018.

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Id. at 5. Plaintiff states that there is no good cause for the requested relief because Defendants’

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failure to timely retain their expert is the motivation behind the request, not Plaintiff’s failure to

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comply with discovery. Id. at 5-6. Plaintiff notes that Defendants failed to provide any details

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regarding how the pending discovery relates to their expert reports and that one of Defendants’

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experts has already submitted a report while the other expert is solely a rebuttal expert to

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Plaintiff’s damages expert.2 Id. at 6. Plaintiff contends that the requested relief is due in part

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to Defendants’ belated May 1, 2018 disclosure of expert James Carmichael, which is not good

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cause for continuing the case deadlines. Id. at 7. Plaintiff further contends that Defendants

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were aware of the pending ESI requests, but did not claim they were relevant to expert discovery

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until after they retained Mr. Carmichael. Id. Additionally, Plaintiff notes that the fact that

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Defendants were aware of Mr. Chutter and chose to wait to notice his deposition for April 27,

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2018, the end of fact discovery at that time, does not demonstrate diligence, and that

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Defendants’ pending motion to compel [see ECF No. 105] does not reference expert discovery

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and only seeks an extension of the fact discovery deadline. Id. at 9-10. Finally, Plaintiff contends

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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.

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Plaintiff notes that none of the pending discovery requests relate to damages. Oppo. at 6.
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that Defendants have not shown good cause to continue all dates and requests that if the Court

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is inclined to grant Defendants’ request, that the continuance be limited to two weeks and apply

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to Plaintiff and Defendants equally. Id. at 11-12.

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On May 11, 2018, Defendants filed Supplemental Evidence in Support of Ex Parte

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Application to Extend Expert Report Deadline. See ECF No. 123 (“Mot. Supp.”). Defendants

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dispute Plaintiff’s contention that it made a full and complete production on May 8, 2018. Id. at

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3. In support, Defendants argue that Plaintiff produced 13,123 documents which was “well

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beyond the 7,500 documents that Plaintiff had represented” and that the documents were

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delivered on 9:44 p.m. on May 8, 2018 with a URL to download a zip file that was too

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cumbersome to download, requiring Plaintiff to send a flash drive with the load file to

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Defendants’ office on May 9, 2018. Defendants further argue that this large late production

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provides additional good cause for the requested extension. Id.

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On May 11, 2018, Plaintiff filed a Response to Defendants’ Notice of Supplemental

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Authority. ECF No. 124. Plaintiff contends that Defendants’ Supplemental Evidence amounts to

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“an unauthorized reply brief” and compels Plaintiff to respond to Defendants’ “deliberate

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mischaracterization of Plaintiff’s ESI production.”

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Supplemental Evidence does not actually present any new evidence, (2) it produced fewer

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documents than anticipated, not more, and (3) Defendants did not try to access the file transfer

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link until after the flash drive was delivered.

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Defendants should be sanctioned. Id. at 5-6.

Id. at 2.

Id. at 2-5.

Plaintiff notes that (1) the

Plaintiff further contends that

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Once a Rule 16 scheduling order is issued, dates set forth therein may be modified only

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“for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also ECF No. 82 at

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8 (stating that dates and times “will not be modified except for good cause shown”). The Rule

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16 good cause standard focuses on the “reasonable diligence” of the moving party. Noyes v.

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Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir. 2007) (citing Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604, 609 (9th Cir. 1992)); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-95

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(9th Cir. 2000) (stating Rule 16(b) scheduling order may be modified for “good cause” based

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primarily on diligence of moving party). Essentially, “the focus of the inquiry is upon the moving
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party’s reasons for seeking modification.” Johnson, 975 F.2d at 609. However, a court also

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may consider the “existence or degree of prejudice to the party opposing the modification. . . .”

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Id.

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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:

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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

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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

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