Terrebonne Parish NAACP et al v. Jindal et al

Filing 172

RULING granting 71 Motion For an Order Acknowledging That a Witness was Listed Timely by the State Defendants and/or For an Order Extending Deadline to Declare Expert Witnesses. Plaintiffs are granted leave to depose Romig and Hefner within 30 days, or such longer time as the parties may agree upon or as may be allowed by the court. Signed by Magistrate Judge Stephen C. Riedlinger on 12/11/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

TERREBONNE PARISH BRANCH
NAACP, ET AL.

CIVIL ACTION

VERSUS

NUMBER 14-69-JJB-SCR

PIYUSH (“BOBBY”) JINDAL, THE
GOVERNOR OF THE STATE OF
LOUISIANA, IN HIS OFFICIAL
CAPACITY, ET AL
RULING ON MOTION PERMITTING DISCLOSURE OF EXPERT WITNESSES
Before the court is the Motion For an Order Acknowledging That
a Witness was Listed Timely by the State Defendants and/or For an
Order Extending Deadline to Declare Expert Witnesses, filed by
defendants Bobby Jindal, in his official capacity as Governor for
the State of Louisiana, and James D. “Buddy” Caldwell, in his
official capacity as Attorney General of the State of Louisiana
(Defendants).

Record document number 71.

Plaintiffs Terrebonne

Parish Branch NAACP, Reverend Vincent Fusilier, Sr., Lionel Myers,
Wendell

Desmond

Shelby,

Jr.,

and

Daniel

Turner

filed

an

opposition.1
Defendants filed this motion seeking an order deeming Angele
Romig and Mike Hefner as expert witnesses disclosed in accordance

1

Record document number 75.
Defendants
memorandum. Record document number 78.

filed

a

reply

with the Scheduling Order.2
witnesses

were

timely

Defendants argued that these expert

disclosed

to

the

plaintiffs.

In

the

alternative, the defendants sought an extension of the expert
witness disclosure deadline so they may identify Romig and Hefner
as their expert witnesses.
All of the arguments and evidentiary submissions have been
considered.

The parties do not dispute that Romig and Hefner were

timely disclosed as expert witnesses by former defendant Tom
Schedler, the Secretary of State of the State of Louisiana.
Defendants’ disclosure of expert witnesses and production of expert
reports were required by March 23, 2015.3

On May 12, 2015, the

plaintiffs voluntarily dismissed defendant Schedler.4

Defendants

subsequently served their Third Amended and Supplemental Initial
Disclosures formally identifying Romig and Hefner as their expert
witnesses on May 18, 2015.5
Defendants did not specifically named Romig and Hefner as an
expert witnesses for them until after the deadline set in the
Scheduling Order. Inferences drawn from statements made in Romig’s
expert report and the use of Romig’s report by the defendants’
disclosed

experts

are

insufficient

to

satisfy

the

2

Record document number 25.

3

Record document number 25, Scheduling Order.

4

Record document number 69.

5

Record document number 71-10.
2

disclosure

requirement under Rule 26(a)(2), Fed.R.Civ.P.
However, under Rule 37(c)(1), Fed.R.Civ.P., a party who fails
to provide information or identify a witness as required by Rule
26(a) or (e) may be allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial, if the
failure was substantially justified or is harmless.

The record

shows

disclosure

that

the

defendants’

failure

to

serve

a

identifying Romig and Hefner as expert their witnesses prior to the
March

23,

2015

deadline

was

substantially

justified

and

is

harmless.
While each of the defendants in this case may have distinct
defenses to the plaintiffs’ claims, the available information
supports finding that there was coordination among the defendants
regarding discovering and establishing the facts and evidence including expert evidence - needed to support their respective
defenses.

Until defendant Schedler was voluntarily dismissed from

this case, it was reasonable for the defendants to anticipate that
they could rely on mutually beneficial evidence generated by
Schedler’s identified experts to support their own defenses. Thus,
the defendants’ failure to serve an official, timely disclosure
identifying these expert witnesses was substantially justified.
Plaintiffs were timely made aware that Romig and Hefner would
be offered as experts in this case.

Plaintiffs also timely

received their expert reports and scheduled their depositions.

3

While

these

defendants

experts
in

a

were

formal

plaintiffs’ claims,

not

specifically

disclosure,

given

identified
the

nature

by

the

of

the

overlap of the expert evidence was at least

likely to occur and in fact was apparent from some of the expert
reports.

Until the depositions of these experts were cancelled by

the plaintiffs in May 2015, the plaintiffs were preparing to
address the information and opinions provided by Romig and Hefner.
Permitting the technically late disclosure of Romig and Hefner as
expert

witnesses

for

the

defendant

plaintiffs nor upset the trial date.6

should

not

prejudice

the

They have sufficient time to

depose Romig and Hefner if they choose to do so.

Therefore, the

court concludes that, in the unique circumstances presented here,
the defendants’ late disclosure of Romig and Hefner as expert
witnesses for them too is harmless.
Accordingly, the Motion For an Order Acknowledging That a
Witness was Listed Timely by the State Defendants and/or For an
Order Extending Deadline to Declare Expert Witnesses filed by the
filed by defendants Bobby Jindal, in his official capacity as
Governor for the State of Louisiana, and James D. “Buddy” Caldwell,
in his official capacity as Attorney General of the State of
Louisiana, is GRANTED.

Neither Angele Romig nor Mike Hefner is

barred from testifying as an expert witness because they were not

6

The trial is set for March 28 - April 1, 2012. The pretrial
conference is set for January 21, 2016.
4

specifically identified as an expert witness for these defendants
within the time allowed by the Scheduling Order.
Plaintiffs are granted leave to depose Romig and Hefner within
30 days, or such longer time as the parties may agree upon or as
may be allowed by the court.
Baton Rouge, Louisiana, December 11, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

5