USA v. Estate of E. Wayne Hage et al

Filing 264

ORDER Denying 249 Motion to Strike Recently Named Witnesses. Signed by Chief Judge Robert C. Jones on 10/3/11. (Copies have been distributed pursuant to the NEF - EDS)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
UNITED STATES OF AMERICA,

13

)
)
)
)
)
)
)
)
)
)

14

The United States has sued Wayne N. Hage (“Wayne Jr.”) both individually and in his

9
Plaintiff,
10
vs.
11
ESTATE OF E. WAYNE HAGE et al.,
12
Defendants.

2:07-cv-01154-RCJ-LRL
ORDER

15

capacity as executor of the estate of his father, E. Wayne Hage (“Wayne Sr.”), for the

16

unauthorized grazing of cattle on federal land. The Court has denied motions to dismiss and for

17

offensive summary judgment, granted Defendants leave to amend to plead counterclaims, and

18

granted the United States’ motion to dismiss Defendants’ counterclaims in part. The United

19

States has now moved to strike ten recently named witnesses. For the reasons given herein, the

20

Court denies the motion.

21

I.

22

RELEVANT PROCEDURAL HISTORY
On January 6, 2010, the magistrate judge issued the Scheduling Order, requiring all

23

discovery to be completed by June 30, 2010. (See Sched. Order 1, Jan. 6, 2010, ECF No. 125).

24

During a telephonic conference, the magistrate judge extended discovery to September 30, 2010

25

and designation of experts to July 30, 2010. (See Mins., June 7, 2010, ECF No. 155). The

1

magistrate judge then approved a stipulation to extend discovery to October 14, 2010. (See

2

Order, Sept. 13, 2010, ECF No. 176).

3

The Court has continued the trial several times in reaction to the extension of discovery

4

and for other reasons. On May 24, 2011, it continued the trial to October 3, 2011. (See Mins.,

5

May 24, 2011, ECF No. 239). On July 12, 2011, Defendants filed their proposed pretrial order.

6

On July 25, 2011, the United States filed the present motion to strike several witnesses allegedly

7

first disclosed in a supplemental disclosure on July 6, 2011. On August 4, 2011, the Court

8

continued the trial to March 19, 2012 and ordered the parties to submit a new proposed

9

stipulated scheduling order.

10

II.

11

LEGAL STANDARDS
Pretrial disclosures must be made at least thirty days before trial, unless a court orders

12

otherwise. Fed. R. Civ. P. 26(a)(3)(B). Expert testimony must be disclosed at least ninety days

13

before trial. Fed. R. Civ. P. 26(a)(2)(D).

14

III.

15

ANALYSIS
There could have been a late-disclosure violation under Rule 26 directly in this case.

16

Specifically, if the Court had not continued trial until March 19, 2012, Rule 26 would have

17

required most disclosures to be made by September 3, 2011 and expert-witness disclosures to be

18

made by July 5, 2011, the day before the subject disclosures were made. But the trial has been

19

continued and previous versions of the scheduling order have been superseded by the Court’s

20

solicitation of a new proposed stipulated scheduling order. It is not clear what the new

21

scheduling order will say about when disclosures must be made, and the five-and-a-half-month

22

extension greatly reduces any chance of prejudice from a July 6, 2011 disclosure of witnesses.

23

Whatever force it had before, the United States’ argument that the disclosures were made less

24

than three months before trial now has less, because the disclosures were made (at the latest)

25

eight-and-a-half months before trial.

Page 2 of 3

1

Next, it is the Court itself that indicated certain types of expert witnesses would be

2

required at trial to sort out those local ranching customs and practices that will affect the Court’s

3

findings of fact and conclusions of law as to the scope of Defendants’ rights. There is no

4

indication Defendants are attempting to surprise the United States by naming the new expert

5

witnesses.

6

Finally, the United States complains that the July 6, 2011 supplemental disclosure of

7

expert witnesses was accompanied by no expert reports as required by Rule 26(a)(2)(B). But not

8

all expert witness disclosures must include experts’ reports. Witnesses who will not rely on

9

reports related to the facts of the case, but who will provide expertise in a field generally, need

10

not produce reports. See Fed. R. Civ. P. 26(a)(2)(C). However, such a disclosure must still

11

include a statement of the areas of expected testimony and the facts and opinions to which the

12

witness expects o testify. See id. The July 6, 2011 disclosure attached to the United States’

13

motion indicates that Defendants included such information, as does the corrected disclosure of

14

the same date, which is also attached. (See Disclosures, July 6, 2011, ECF No. 249-1; Corrected

15

Disclosures, July 6, 2011, ECF No. 249-2). Based on the new trial date, and unless the new

16

scheduling order requires something different, if Defendants’ experts intend to rely on or

17

introduce expert reports, the expert disclosures must be corrected again and the relevant reports

18

attached no later than December 20, 2011.
CONCLUSION

19
20
21

IT IS HEREBY ORDERED that the Motion to Strike Recently Named Witnesses (ECF
No. 249) is DENIED.

22

IT IS SO ORDERED.

23

Dated this 3rd day of October, 2011.

24
25

_____________________________________
_________________________________
_
__
__
ROBERT C. JONES
R C. JONES
United States District Judge
District
t

Page 3 of 3