Terrebonne Parish NAACP et al v. Jindal et al

Filing 143

RULING: The Defendants' 84 Motion to Strike Expert Report and 86 Motion to Conduct Daubert Hearing are DENIED. The parties shall have 60 days to conduct further expert discovery and depositions related to the supplemental reports. Additionally, both the Plaintiffs' 91 and Defendants' 93 Motions for Summary Judgment are DENIED. Signed by Judge James J. Brady on 10/7/2015. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TERREBONNE PARISH NAACP, ET AL.
CIVIL ACTION
VERSUS
NO. 14-069-JJB-SCR
PIYUSH (“BOBBY”) JINDAL the GOVERNOR
of the STATE OF LOUISIANA, in his official
capacity, ET AL.
RULING
Before the Court are four motions: (1) Motion to Strike Expert Report (doc. 84) filed by
Defendants, Bobby Jindal (“Jindal”) and James D. “Buddy” Caldwell (“Caldwell”) and (2)
Motion to Conduct Daubert Hearing Concerning Plaintiffs’ Proposed Experts and Evidence (doc.
86) filed jointly by the Defendants; (3) Motion for Summary Judgment (doc. 91) filed by the
Plaintiffs; and (4) Motion for Summary Judgment (doc. 93) filed jointly by the Defendants. For
the reasons stated herein, the foregoing motions are DENIED.
I.

Background
This case is a challenge to the use of at-large voting for the 32nd Judicial District Court

to dilute Black voting strength, in violation of Section 2 of the Voting Rights Act of 1965, 52
U.S.C. § 10301, and the Fourteenth and Fifteenth Amendments of the U.S. Constitution. Compl.
1, Doc. 1.
Pursuant to the Court’s Scheduling Order (doc. 46), Plaintiffs were required to submit
their expert reports by January 23, 2015. The scheduling order further provided, “Expert
discovery, including depositions of expert witnesses, shall be completed by June 22, 2015.”
Am. Scheduling Order 2, Doc. 46. Plaintiffs complied with the initial deadline, submitting expert
reports from William Cooper (“Cooper”), Dr. Richard Engstrom, and Dr. Allan J. Lichtman
(“Dr. Lichtman”) on January 23, 2015.
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In Cooper’s initial report, he created a proposed illustrative redistricting plan (the
“Illustrative Plan”) to demonstrate the feasibility of a five-district plan that would comply with
constitutional voting principles. See generally Cooper Decl., Doc. 111-1. In the report, Cooper
stated that the Illustrative Plan “respects the traditional redistricting criteria, including oneperson one-vote, compactness, contiguity, respect for communities of interest, and the nondilution of minority voting strength.” Id. at ¶ 45. However, the underlying basis for these
traditional redistricting criteria, namely Reock and Polsby-Popper scores, were not mentioned in
the initial report. See id. Dr. Lichtman’s initial report discussed the facts relevant to the nine
Senate Factors that are relevant to a claim under Section 2 of the Voting Rights Act. See
generally Lichtman Report, Doc. 111-3.
Both the plaintiffs and defendants subsequently conducted depositions of some of the
expert witnesses during the expert discovery period. In their depositions, the Defendants’ experts
criticized the plaintiffs’ Illustrative Plan and facts relevant to the nine Senate Factors
Dr. Lichtman analyzed in his report.
On the date expert discovery closed, June 22, 2015, the plaintiffs produced supplemental
expert reports of Cooper and Dr. Lichtman. See Cooper Suppl. Decl., Doc. 111-12; Lichtman
Suppl. Report, Doc. 111-13. In his supplemental report, Cooper discusses the traditional
redistricting principles using the Reock and Polsby-Popper scores, which were not mentioned in
the initial report. Dr. Lichtman’s supplemental report responded to criticisms and explained the
facts and principles underlying his opinion. Defendants argue that the supplemental reports
should be struck because the reports contained new information not included in the original
expert reports, and Defendants were therefore prejudiced because they had no additional time to
conduct discovery. Defs.’ Mem. in Supp. of Mot. to Strike 2, Doc. 84-1. Defendants alternatively

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request a Daubert hearing using similar reasons as set forth in the Motion to Strike. Defs.’ Mot.
to Conduct Daubert Hr’g 1, Doc. 86. Moreover, both the Plaintiffs and Defendants have filed
cross motions for summary judgment in this matter (docs. 91, 93). The Court considers the four
motions in turn.
II.

Motion to Strike (Doc. 84)
Defendants contend that: (1) Plaintiffs violated the Scheduling Order and, thus, Federal

Rule of Civil Procedure (“Rule”) 26(a)(2)(D), by producing the supplemental reports on June 22,
2015; and (2) as a sanction for this violation, the supplemental reports should be struck in their
entirety, pursuant to Rule 16(f) and Rule 37(c)(1).1 See Defs.’ Mem. in Supp. of Mot. to Strike
6–17, Doc. 84-1.
1. Timeliness
According to Federal Rule of Civil Procedure (“Rule”) 26(a)(2)(D), a party must disclose
expert testimony “at the times and in the sequence that the court orders.” Pursuant to Rule 37(c),
if a party fails to provide information or identify a witness as required by Rule 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).
Here, the Court’s Scheduling Order unambiguously stated that the Plaintiffs’ expert reports were
due by January 23, 2015. Am. Scheduling Order 2, Doc. 46. Accordingly, the supplemental
reports provided after that date, on June 22, 2015, were not provided at the time and in the
sequence the Court ordered.
The Plaintiffs argue that the Scheduling Order does not prohibit parties from providing
supplemental expert reports because the Scheduling Order stated that “[expert discovery,
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The same factors apply in analyzing the exclusion of evidence under Rule 37 as apply to sanctions under Rule 16.
See Bradley v. United States, 866 F.2d 120, 124–125. Therefore, the Court’s discussion of Rule 37 sufficiently
addresses sanctions under Rule 16.

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including depositions of expert witnesses, shall be completed by June 22, 2015.” See Pls.’ Opp’n
6, Doc. 111 (quoting Am. Scheduling Order 2, Doc. 46) (emphasis added)). According to the
Plaintiffs, the use of the term “including” means the Scheduling Order “contemplated other types
of discovery, beyond depositions, such as supplemental expert reports, during the expert
discovery timeframe.” Pls.’ Opp’n 7, Doc. 111. Additionally, Plaintiffs argue that the
supplemental reports were required under Rule 26(e)(1), and therefore Plaintiffs were justified to
provide the reports on June 22, 2015.
These arguments, however, contradict the express provision in the Scheduling Order
regarding the date for disclosure of expert reports. The Scheduling Order’s specific provision
related to expert reports controls over the more general deadline for the completion of expert
discovery. Moreover, the Scheduling Order would have specifically provided a deadline for
disclosure of supplemental reports had the Court intended for those to be filed after January 23,
2015. Thus, the Court finds that Plaintiffs have failed to provide the supplemental reports of
Cooper and Dr. Lichtman within the deadlines set by the Court.
2. Exclusion of Evidence
In accordance with Rule 37(c)(1), Plaintiffs should not be able to introduce the untimely
supplemental reports and related trial testimony unless Plaintiffs can demonstrate that such
failure was “substantially justified” or is “harmless.” See Fed. R. Civ. P. 37(c)(1). Four factors
are relevant to this determination: (1) the explanation for the failure to comply with the discovery
order; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and
(4) the availability of a continuance to cure such prejudice.” See Betzel v. State Farm Lloyds, 480
F.3d 704, 707 (5th Cir. 2007); Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d
546, 572 (5th Cir. 1996).

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As to the first factor, the Plaintiffs argue they were substantially justified in providing the
supplemental reports on June 22, 2015, because the Scheduling Order does not prohibit such
reports. For the reasons discussed above, however, the Court finds this argument unpersuasive.
Rather than produce the supplemental reports at the close of expert discovery, the Plaintiffs
should have sought leave to file an additional report or to modify the Scheduling Order. Thus,
the first factor weighs in favor of excluding the reports.
The second factor, the importance of the testimony, weighs strongly against exclusion.
Cooper’s and Dr. Lichtman’s testimony about the facts and principles underlying their expert
opinions are clearly important to the Plaintiffs’ case.
The third and fourth factors weigh against exclusion. In Cooper’s original report, he
stated that the Illustrative Plan complied with traditional redistricting principles. In his
supplemental report, Cooper further elaborated on the traditional redistricting principles
underlying the Illustrative Plan by including the Reock and Polsby-Popper scores.
Dr. Lichtman’s supplemental report responded to criticisms and explained the facts and
principles underlying his opinion. The untimely production of these reports may indeed be
prejudicial to the defendants, as the time for expert discovery has closed. However, the Pretrial
Order is not due in this matter until December 21, 2015, and the trial is not scheduled to take
place for another six months, starting on March 28, 2016. Thus, there is ample time for the Court
to reopen expert discovery for 60 days to allow further depositions of Cooper and Dr. Lichtman,
without affecting the trial date. During the reopened discovery period, Defendants will have the
opportunity to learn more about the information contained in the supplemental reports and clarify
any information found therein. Therefore, any prejudice to the Defendants is cured by allowing
them to redepose the Plaintiffs’ experts.

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After careful consideration of the four relevant factors, the Court finds that although the
supplemental reports were not timely produced, the Plaintiffs have sufficiently shown that such
failure is harmless. Any prejudice to the Defendants as a result of the untimely reports will be
cured by reopening expert discovery and allowing for the redepositions of Plaintiffs’ experts.
Accordingly, the reports should not be excluded under Rules 37, nor is there a basis for imposing
sanctions under Rule 16. Therefore, the Defendants’ Motion to Strike (doc. 84) is DENIED.
III.

Motion to Conduct Daubert Hearing (Doc. 86)
The Defendants also filed a Motion for Daubert Hearing (doc. 86) as an alternative

request, using similar reasons as set forth in their Motion to Strike. In addition, the Defendants
moved for a Daubert hearing pursuant to Federal Rule of Evidence Rule 403, which provides
that evidence may be excluded if it involves unfair prejudice, undue delay, or waste of time. For
the reasons stated above, the Court finds that Defendants have failed to demonstrate that a
Daubert hearing is warranted or that the reports should be excluded on Rule 403 grounds
because any prejudice will be cured by reopening expert discovery. Accordingly, the
Defendants’ Motion to Conduct Daubert Hearing (doc. 86) is DENIED.
IV.

Motions for Summary Judgment (docs. 91 and 93)
Considering the foregoing, the Court finds that summary judgment is inappropriate at this

time. Moreover, after reviewing and carefully considering hundreds of pages of briefs and
supporting exhibits, the Court finds that the cross motions present numerous issues that are
inherently inappropriate for summary judgment. The Court finds, using its discretionary powers
as to the order of proceedings and considering that this matter is set for bench trial in
approximately six months, that judicial efficiency and economy call for handling these issues at

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trial. Accordingly, both the Plaintiffs’ (doc. 91) and Defendants’ (doc. 93) Motions for Summary
Judgment are DENIED.
V.

Conclusion
For the reasons stated herein, the Defendants’ Motion to Strike Expert Report (doc. 84)

and Motion to Conduct Daubert Hearing (doc. 86) are DENIED. The parties shall have 60 days
to conduct further expert discovery and depositions related to the supplemental reports.
Additionally, both the Plaintiffs’ (doc. 91) and Defendants’ (doc. 93) Motions for Summary
Judgment are DENIED.
Signed in Baton Rouge, Louisiana, on October 7, 2015





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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