Levy v. Home Depot U.S.A., Inc.

Filing 20

MINUTE ORDER denying without prejudice 15 Defendants Motion to Strike Plaintiffs Expert Disclosures, and Brief in Support Thereof, by Magistrate Judge Kristen L. Mix on 2/18/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01762-CMA-KLM
MICHAEL LEVY,
Plaintiff,
v.
HOME DEPOT U.S.A., INC., doing business as The Home Depot, doing business as Home
Depo Co USA,
Defendant.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion to Strike Plaintiff’s Expert
Disclosures, and Brief in Support Thereof [#15] (the “Motion”). Defendant argues that
Plaintiff’s expert disclosures should be stricken because Plaintiff designated more than the
permissible number of experts under the Scheduling Order [#14]; that Plaintiff’s designation
of his treating physicians should be stricken or limited because Plaintiff failed to produce
expert reports as required by Fed. R. Civ. P. 26(a)(2)(B); and that Plaintiff’s non-retained
expert disclosures fail to comply with Fed. R. Civ. P. 26(a)(2)(C), which requires a party to
state the subject matter on which the witness is expected to present evidence. Defendant,
however, has failed to follow Magistrate Judge Mix’s discovery dispute procedures.
Accordingly,
IT IS HEREBY ORDERED that the Motion [#15] is DENIED without prejudice.
IT IS FURTHER ORDERED that no party shall file a contested discovery motion
before following Magistrate Judge Mix’s discovery dispute procedure are as follows:
Step 1:

Counsel must meaningfully confer regarding one or more discovery disputes
pursuant to Local Rule 7.1A. Counsel may choose to confer about only one
dispute at a time or several disputes at once. This decision is up to counsel,
not the Court.
If the dispute relates to taking a deposition, see Step 2.A. below. If the
dispute relates to written discovery, see Step 2.B. below. If the dispute
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relates to any other type of discovery issue, see Step 2.C. below.
Step 2.A.:

If the dispute about taking a deposition is not resolved, counsel for the party
seeking the protective order must send an email addressed to
[e-mail] and to opposing counsel stating that the
parties have a dispute about taking a deposition. The email must also
contain the case number, the name of the party seeking the protective order,
and the name of the deponent. The email should not contain argument about
the merits of the discovery issue. The deposition shall be stayed pursuant
to Local Rule 30.2A when the email is sent. The Court will contact counsel
within three (3) court business days to set a hearing on the dispute. The stay
of the deposition shall remain in effect until the Court issues its ruling.

Step 2.B.:

If the dispute about written discovery (requests for production,
interrogatories, etc.) is not resolved, the moving party must complete the
written discovery dispute chart in the form attached. The moving party must
send the chart, the disputed discovery requests and the disputed responses
to opposing counsel and to the Court at [e-mail].
The Court will contact counsel within three (3) court business days to set a
hearing on the dispute.

Step 2.C.:

If a dispute does not involve written discovery and is not resolved through
conferral with opposing counsel, counsel then must agree on a mutually
convenient time to call the Court for a discovery hearing regarding all
disputes about which they have fully conferred but failed to reach agreement.
Call 303-335-2770.
No attorney can insist on contacting the Court for a discovery hearing at a
time when another attorney is not available. If an attorney is not available for
a conference call to the Court for a discovery hearing when contacted by
opposing counsel, s/he must provide opposing counsel with alternate dates
and times to contact the Court. This eliminates the possibility that one party
will have an unfair advantage over another in preparation for a discovery
hearing.
The Court is not responsible for assuring that multiple counsel for the same
party are on the line for a telephone hearing. The Court requires only one
attorney of record on the line for each party involved in the dispute. If counsel
for a party want co-counsel for the same party to participate in the telephone
hearing, they are responsible for ensuring that co-counsel are available to
participate on the date and time chosen by them for the hearing.
The Court will not continue hearings based on the sudden unavailability of
co-counsel for a party. As long as each party involved in the dispute is
represented by at least one attorney of record, the hearing will proceed.
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Step 3:

When counsel call the Court for the discovery hearing, the Court may
determine, off the record, whether the issue is appropriate for immediate
adjudication. If not, the Court will set the matter for a hearing at a mutually
convenient date and time in the future.

Step 4:

If the matter is appropriate for immediate adjudication, the call will be
transferred to the courtroom and the hearing will be conducted. If the
judge determines that the matter is complex and briefing is required, the
judge will set a briefing schedule. If the judge is not immediately available,
the hearing will be set at a mutually convenient date and time in the future.

Warnings:

The discovery dispute process outlined above may be your only
opportunity to present legal authority supporting your position to the
Court. Hence, be prepared to do so at the time of the hearing.
Filing a disputed discovery motion without permission from the
court will result in the motion being stricken, and may result in the
imposition of sanctions. To the extent that these procedures conflict
with the Local Rules of the Court, these procedures take priority over
the Local Rules.

Dated: February 18, 2014

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