Carr v. County of San Diego et al
ORDER Granting 76 Defendants' Ex Parte Motion to Amend Expert Disclosures. Signed by Magistrate Judge Mitchell D. Dembin on 11/18/2021. (All non-registered users served via U.S. Mail Service) (tcf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No.: 19cv1139-JLS-MDD
COUNTY OF SAN DIEGO, et al.,
DEFENDANTS' EX PARTE
MOTION TO AMEND EXPERT
[ECF No. 76]
On September 17, 2021 in connection with summary judgment
proceedings, the Court granted William Carr’s (“Plaintiff”) motion to strike
the declaration of Lieutenant Criss Cross, finding that Lt. Cross should have
been disclosed as a Federal Rule of Civil Procedure 26(a)(2)(B) expert witness
accompanied by a written report. (ECF No. 72 at 6-9). The Court specifically
found that Defendants’ failure to properly disclose Lt. Cross “was neither
substantially justified nor harmless” at the summary judgment stage. (Id. at
9). Now, Defendants move to amend their expert disclosures to designate Lt.
Cross pursuant to Rule 26(a)(2)(B). (ECF No. 76). Plaintiff opposes
Defendants’ motion. (ECF No. 78).
“If a party fails to provide information or identify a witness as required
in [Federal] Rule [of Civil Procedure] 26(a) . . . , the party is not allowed to
use that information or witness to supply evidence on a motion, at a hearing,
or at a trial, unless the failure was substantially justified or is harmless.”
Fed. R. Civ. P. 37(c)(1).
The Court finds that Defendants’ failure to properly disclose Lt. Cross is
not substantially justified for the reasons stated in the Court’s order granting
Plaintiff’s motion to strike Lt. Cross’s declaration. (See ECF No. 72 at 6-9).
However, the Court now finds that error is harmless. The case is in a
different procedural posture than it was when the Court ruled on Defendants’
motion for summary judgment. At that stage, the Court would have
considered Lt. Cross’s declaration without providing Plaintiff an opportunity
to properly rebut his statements. The parties now have time to remedy the
error prior to the pre-trial conference before United States District Judge
Janis L. Sammartino. This permits the Court and a jury at trial to fully
consider the case on the merits. Accordingly, the Court GRANTS
Defendants’ motion. (ECF No. 76). IT IS FURTHER ORDERED that
discovery is re-opened for the following limited purpose:
Defendants must serve on Plaintiff Lt. Cross’s expert report on or
before December 2, 2021. Any contradictory or rebuttal disclosures to Lt.
Cross’s expert report by Plaintiff within the meaning of Federal Rule of Civil
Procedure 26(a)(2)(D)(ii) shall be disclosed on or before January 14, 2022.
Expert discovery regarding Lt. Cross and any rebuttal expert to
Lt. Cross shall be completed by all parties by February 11, 2022. Any
deposition of Lt. Cross is ORDERED to occur at Defendants’ expense.
All other dates and guidelines remain as previously set. (See ECF No.
IT IS SO ORDERED.
Dated: November 18, 2021
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