Ballas v. Greenhouse Software, Inc. et al
Filing
175
ORDER granting in part and denying in part 173 Letter Motion for Discovery The deadline to complete all expert discoveryexcept for expert discovery concerning the replacement for Dr. Baer, which will be addressed by separate orderis March 31, 2 025. By this date, depositions of and document productions by the Treating Physicians and Plaintiffs experts Dr. Ashwin Malholtra, Daniel Wolstein, PhD, James Lambrinos, PhD, and Eric Heiberg, PE shall be completed. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 173 as GRANTED IN PART and DENIED IN PART. SO ORDERED. (Signed by Magistrate Judge Henry J Ricardo on 1/28/2025) (ar)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
1/28/2025
KRISTIN BALLAS,
Plaintiff,
ORDER
-v-
22-CV-10332 (HJR)
GREENHOUSE SOFTWARE, INC., ET AL.,
Defendants.
HENRY J. RICARDO, United States Magistrate Judge.
A dispute has arisen regarding whether Defendants are entitled to depose
three physicians—Dr. Matthew Costa, Dr. Bushra Malik, and Dr. Joseph Ellwood
(collectively, the “Treating Physicians”)—as part of expert discovery. They are all
“treating physicians,” meaning that they provided Plaintiff medical treatment or
evaluation and have or have had an ongoing treatment relationship with Plaintiff.
Plaintiff says that the Treating Physicians are fact witnesses who should
have been deposed during fact discovery and that it is too late for Defendants to
depose them now. ECF No. 173. Defendants say (a) the Treating Physicians are
properly regarded as expert witnesses and should be made available for deposition
now or, alternatively, (b) if the Treating Physicians are fact witnesses, Plaintiff
should be precluded from offering their testimony at trial due to the failure to
disclose them during fact discovery. ECF No. 174.
Federal Rule of Civil Procedure 26(a)(1)(A)(i) requires parties to provide in
their initial disclosures the names and contact information of individuals likely to
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have discoverable information and the subjects of that information that the
disclosing party may use to support its claims or defenses. Plaintiff’s initial
disclosures did not identify the Treating Physicians as individuals likely to have
discoverable information. But neither did Plaintiff hide the ball entirely: Plaintiff
listed the Treating Physicians or their facilities as sources of medical records in her
initial disclosures. See ECF No. 173-1. But this disclosure arguably fulfilled the
requirements of 26(a)(1)(A)(ii)—providing a description by category or location of
documents the disclosing party may use to support its claims or defenses—as
opposed to the requirements of 26(a)(1)(A)(i).
It appears that the first time Plaintiff expressly stated that she intended to
offer testimony from the Treating Physicians at trial was by emails dated
September 5, 2024 and September 24, 2024. ECF No. 173-3 at 1, 7. These
disclosures were made in the context of identifying experts after the close of fact
discovery. ECF No. 118 (setting the deadline to complete non-expert discovery on
May 15, 2024); ECF No. 161 (setting the deadline for Plaintiff’s expert disclosures
on October 1, 2024). Indeed, Plaintiff expressly characterized the Treating
Physicians as experts within the meaning of Rule 26(a)(2)(C). ECF No. 173-3 at 1,
7. Plaintiff later resisted having the Treating Physicians’ depositions taken.
Plaintiff cannot have it both ways. If Plaintiff wanted these doctors to be
deposed, if at all, during fact discovery, she should have identified them as
witnesses she “may use to support [her] claims” under Rule 26(a)(1)(A)(i). Contrary
to Plaintiff’s suggestion, this failure of disclosure cannot be cured simply by
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amending her initial disclosures. Defendants have been prejudiced by not being
told during fact discovery that Plaintiff intended to rely on these witnesses at
trial. But Plaintiff would be prejudiced if these witness are precluded from
testifying. As treating physicians, their testimony is likely to be relevant and
important to Plaintiff’s case. The fairest solution that minimizes prejudice is to
allow Plaintiff to offer these witnesses at trial, but only after Defendants have an
opportunity to depose them.
Plaintiff says she has not retained these witnesses, does not “control” them,
and cannot make them available for deposition. Accepting these representations as
true, Defendants are granted leave to serve subpoenas to compel the Treating
Physicians’ deposition testimony and the production of any documents evidencing
the facts or data considered in forming their opinions. These depositions and
related document productions shall be completed by March 31, 2025.
CONCLUSION
The deadline to complete all expert discovery—except for expert discovery
concerning the replacement for Dr. Baer, which will be addressed by separate
order—is March 31, 2025. By this date, depositions of and document productions by
the Treating Physicians and Plaintiff’s experts Dr. Ashwin Malholtra, Daniel
Wolstein, PhD, James Lambrinos, PhD, and Eric Heiberg, PE shall be completed.
The Clerk of Court is respectfully directed to terminate the motion at ECF
No. 173 as GRANTED IN PART and DENIED IN PART.
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