Arthur J. Gallagher & Co. v. O'Neill
ORDER AND REASONS granting 84 Motion for Extension of time to disclose expert witnesses. ORDERED that ONeill submit his expert report by November 28, 2017. Signed by Judge Martin L.C. Feldman on 11/15/2017. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ARTHUR J. GALLAGHER & CO.
BRIAN D. O’NEILL
ORDER AND REASONS
Before the Court is Brian O’Neill’s expedited motion for an
extension of time to disclose expert witnesses. For the following
reasons, the motion is GRANTED.
Brian O’Neill worked for Arthur J. Gallagher & Co. On April
19, 2007, O’Neill executed an Executive Agreement that prohibited
O’Neill from soliciting or providing service to some of Gallagher’s
customers for two years in the event that O’Neill left the company
for any reason. Additionally, O’Neill signed the 2011 Long-Term
Incentive Plan Stock Option Award Agreement on April 5, 2013, which
prohibited O’Neill from competing with Gallagher or disclosing any
confidential information after his departure from the company. 1
The Court’s background section does not constitute a finding on
the facts of the case or the content of the contracts. It is simply
intended to provide an overview of the context in which the instant
thereafter, he accepted a position with Marsh USA, a competitor of
Gallagher sued O’Neill on April 3, 2017, alleging that he
proceeded through most of discovery, although the process has been
vexatious and bitter. 2 Before the Court now is O’Neill’s motion
for an extension of time to disclose expert witnesses. The motion
was filed on November 3, 2017, the day the disclosure was due.
Because the motion was expedited, Gallagher filed its response on
November 10, 2017.
Rule 16(b)(4) of the Federal Rules of Civil Procedure provides
that the scheduling order “may be modified only for good cause and
with the judge’s consent.” “To show good cause, the party seeking
to modify the scheduling order has the burden of showing ‘that the
deadlines cannot reasonably be met despite diligence of the party
needing the extension.’” Squyres v. Heico Companies, L.L.C., 782
F.3d 224, 237 (5th Cir. 2015) (quoting Filgueira v. U.S. Bank Nat’l
Ass’n, 734 F.3d 410, 422 (5th Cir. 2013)). When determining whether
there is good cause under Rule 16, courts consider four factors:
The parties have filed eight contested motions relating to just
discovery, including several motions for contempt, motions to
quash, and a motion to recover attorney’s cost. All sides might
wish to become better acquainted with 28 U.S.C. § 1927.
“(1) the explanation for the failure to timely [comply with the
scheduling order]; (2) the importance of the [modification]; (3)
potential prejudice in allowing the [modification]; and (4) the
availability of a continuance to cure such prejudice.” Id. (quoting
Meaux Surface Productions, Inc. v. Fogleman, 607 F.3d 161, 167
(5th Cir. 2010) )(alterations in original).
In weighing each factor, the Court holds that granting an
extension is appropriate. First, the Court considers O’Neill’s
explanation for failing to timely comply with the scheduling order.
O’Neill contends that an extension is necessary because Gallagher
has not provided him with past-due discovery, and without that
information, he cannot properly consult with an expert. On July
production of documents to Gallagher. Gallagher objected to 18 of
the 19 interrogatories and failed to answer 17 out of 23 requests
supplement the responses, but O’Neill still found them largely
Gallagher’s reluctance to respond to the requests was not in
isolation. O’Neill’s employer, Marsh USA, also refused to produce
requested documents without making significant redactions. After
Gallagher filed three motions for contempt, the Court granted in
camera inspection of the documents and subsequently ordered that
Marsh produce them.
responses on October 25, 2017, which was to be heard by Magistrate
Judge Wilkinson. In its November 8, 2017 Order and Reasons, the
Court granted O’Neill’s motion in part and denied it in part.
However, the Court found that Gallagher failed to adequately
respond to most of the contested interrogatories and requests. For
instance, the Court ordered that Gallagher respond to production
requests that ask for all documents that support its contention
that it suffered monetary damages as a consequence of O’Neill
production are due on November 22, 2017, and the responses to the
interrogatories are due December 8, 2017, the deadline to complete
all discovery. O’Neill contends that this information is necessary
for the expert to address Gallagher’s alleged damages.
Gallagher challenged O’Neill’s explanation, contending that
O’Neill has enough information to complete its expert report.
Gallagher pointed to the production reports outlining revenue
generated by the accounts at issue for the past two years and
Gallagher’s expert reports, which were submitted on October 6,
2017. Instead, it asserted that O’Neill simply miscalculated the
deadline, and once he realized his error, he moved for an extension
of time. But the Court need not determine whether attorney error
was the partial or whole motivation for seeking an extension. Nor
is it in the best place to determine exactly what information is
necessary for the experts to complete their report. O’Neill’s
appear relevant to his expert report: Gallagher’s ability to prove
solicited clients protected by the employee agreements has a
significant bearing on how to assess Gallagher’s damages claim.
Likewise, O’Neill’s ability to consider this discovery information
modification to the scheduling order is too. Accordingly, the first
two factors weigh in O’Neill’s favor.
Third, Gallagher claims that it would be prejudiced by the
modification because receiving the report late could prevent it
from concluding discovery by the December 8th deadline and risk
delaying the trial date. Gallagher does not provide any specifics
as to how an extension would prevent it from timely concluding
discovery. But to allow O’Neill to consider Gallagher’s response
to the requests for production in its expert reports—even just
allotting him two business days—would continue the deadline to
disclose expert witnesses until Tuesday, November 28th, leaving
the plaintiff with just over a week to conclude all further
discovery. Likewise, the scheduling order mandates that all pretrial motions must be filed in sufficient time to allow a hearing
on the motion no later than 28 days prior to trial. Considering
the Court’s available submission dates and the local rules, the
parties would be required to submit any dispositive motions no
later than December 5th, so the Court could consider them for the
December 20th submission date. The plaintiff would only have one
week to assess the expert reports and file any dispositive motions.
Even though the plaintiff did not detail how the extension would
prejudice it, the Court can reasonably conclude that allowing the
defendant to submit their expert reports several weeks after the
previously agreed upon deadline would disrupt the plaintiff.
As to the related fourth factor, a minor continuance of the
discovery deadline may be available to mitigate, but not cure, any
prejudice. A continuance may help the parties complete discovery,
but the parties will still have to file all pre-trial motions by
December 5th. The Court will not consider delaying the pre-trial
conference and the trial date to modify a scheduling order on these
grounds. Nor will the Court tolerate the parties useless pointcounterpoint unprofessional conduct.
Although the final two factors favor Gallagher, the Court
finds that the importance of allowing O’Neill to consider the
answers to its discovery requests outweigh the claimed prejudice
Gallagher argued. The Court’s November 8, 2017 Order and Reasons
found that many of Gallagher’s responses “largely fail to answer
responded to the discovery requests or appropriately supplemented
them when O’Neill requested it to, it could avoid tight deadlines.
Accordingly, IT IS ORDERED: that O’Neill’s motion for an
extension of time to disclose expert witnesses is GRANTED. IT IS
FURTHER ORDERED: that O’Neill submit his expert report by November
28, 2017. 4
New Orleans, Louisiana, November 15, 2017
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
Again, counsel are warned that their apparent enmity will possibly be deemed
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