Carr v. County of San Diego et al

Filing 80

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)

Download PDF
1 2 3 UNITED STATES DISTRICT COURT 4 SOUTHERN DISTRICT OF CALIFORNIA 5 6 WILLIAM CARR, Case No.: 19cv1139-JLS-MDD Plaintiff, 7 8 v. 9 COUNTY OF SAN DIEGO, et al., Defendants. 10 ORDER GRANTING DEFENDANTS' EX PARTE MOTION TO AMEND EXPERT DISCLOSURES [ECF No. 76] 11 12 13 On September 17, 2021 in connection with summary judgment 14 proceedings, the Court granted William Carr’s (“Plaintiff”) motion to strike 15 the declaration of Lieutenant Criss Cross, finding that Lt. Cross should have 16 been disclosed as a Federal Rule of Civil Procedure 26(a)(2)(B) expert witness 17 accompanied by a written report. (ECF No. 72 at 6-9). The Court specifically 18 found that Defendants’ failure to properly disclose Lt. Cross “was neither 19 substantially justified nor harmless” at the summary judgment stage. (Id. at 20 9). Now, Defendants move to amend their expert disclosures to designate Lt. 21 Cross pursuant to Rule 26(a)(2)(B). (ECF No. 76). Plaintiff opposes 22 Defendants’ motion. (ECF No. 78). 23 “If a party fails to provide information or identify a witness as required 24 in [Federal] Rule [of Civil Procedure] 26(a) . . . , the party is not allowed to 25 use that information or witness to supply evidence on a motion, at a hearing, 26 or at a trial, unless the failure was substantially justified or is harmless.” 27 Fed. R. Civ. P. 37(c)(1). 1 19cv1139-JLS-MDD 1 The Court finds that Defendants’ failure to properly disclose Lt. Cross is 2 not substantially justified for the reasons stated in the Court’s order granting 3 Plaintiff’s motion to strike Lt. Cross’s declaration. (See ECF No. 72 at 6-9). 4 However, the Court now finds that error is harmless. The case is in a 5 different procedural posture than it was when the Court ruled on Defendants’ 6 motion for summary judgment. At that stage, the Court would have 7 considered Lt. Cross’s declaration without providing Plaintiff an opportunity 8 to properly rebut his statements. The parties now have time to remedy the 9 error prior to the pre-trial conference before United States District Judge 10 Janis L. Sammartino. This permits the Court and a jury at trial to fully 11 consider the case on the merits. Accordingly, the Court GRANTS 12 Defendants’ motion. (ECF No. 76). IT IS FURTHER ORDERED that 13 discovery is re-opened for the following limited purpose: 1. 14 Defendants must serve on Plaintiff Lt. Cross’s expert report on or 15 before December 2, 2021. Any contradictory or rebuttal disclosures to Lt. 16 Cross’s expert report by Plaintiff within the meaning of Federal Rule of Civil 17 Procedure 26(a)(2)(D)(ii) shall be disclosed on or before January 14, 2022. 2. 18 Expert discovery regarding Lt. Cross and any rebuttal expert to 19 Lt. Cross shall be completed by all parties by February 11, 2022. Any 20 deposition of Lt. Cross is ORDERED to occur at Defendants’ expense. All other dates and guidelines remain as previously set. (See ECF No. 21 22 23 24 74). IT IS SO ORDERED. Dated: November 18, 2021 25 26 27 2 19cv1139-JLS-MDD

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?