Ruiz-Bueno, III et al v. Scott et al

Filing 163

OPINION AND ORDER. The Court declines to grant Plaintiffs any relief based on the matter raised in their brief of 2/7/2014, requesting an expert site inspection. Signed by Magistrate Judge Terence P Kemp on 2/12/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
John C. Ruiz-Bueno, III, et al.,:
Case No. 2:12-cv-0809
Plaintiffs,

:
JUDGE GREGORY L. FROST

v.

:
Magistrate Judge Kemp

Zach Scott, et al.,

:

Defendants.

:
OPINION AND ORDER

This matter is before the Court to resolve an issue raised
by Plaintiffs during a telephone conference held on February 6,
2014.

At the Court’s direction, each party filed a short

memorandum about the issue on February 7, 2014.

For the

following reasons, the issue will be resolved in the Defendants’
favor.
The issue can be stated simply: should Plaintiffs’ expert
witness be permitted to inspect relevant areas within the
Franklin County jail?

Other things being equal, the answer to

that question would be yes - expert witnesses typically conduct
site inspections when information relevant to their opinions can
be uncovered in that manner, and in this case everyone agrees
that the layout of the jail itself meets the appropriate
relevance standard.

The issue, however, is one of timing.

Defendants say that because the fact discovery cutoff has passed,
it is too late for Plaintiffs to make a Rule 34 site inspection
request.

Plaintiffs say, to the contrary, that this is expert

discovery and their request is timely.

They also make an

equitable argument (which would be relevant only if their request
is untimely) that they began discussing the issue well before the
discovery cutoff, and that resolution of the issue was postponed

because it was not clear until the Court issued an order on
January 30, 2014 that they would be allowed to use an expert
witness.

This latter argument raises a question about whether,

if this is truly fact discovery, Plaintiffs have shown good cause
to allow it to occur after the fact discovery cutoff, and also
how the Court should resolve the factual underpinnings of the
argument, given that three of the attorneys for the defendants
deny that any such discussions ever took place.
One threshold question is whether a site inspection
conducted by an expert (which, if not done by agreement, can
occur only by way of a Rule 34 request) is “fact discovery” or
“expert discovery.”

To some extent, because those terms are not

precisely used or defined in the Federal Rules of Civil
Procedure, the answer may depend on the specific court order or
orders which have been issued in the case.
The original scheduling order in this case (Doc. 17) says
only that “[a]ll fact discovery shall be completed by September
13, 2013, and all expert discovery by February 21, 2014.”
not attempt to explain the difference between the two.

It did

The more

recent order (Doc. 157) extending the expert witness disclosure
date says this: “expert discovery shall conclude on or before
April 29, 2014.”

Although the Court knows what it intended by

this language, that is not determinative; the question is what
reasonable parties would have understood by it.

There are at

least two possible interpretations: first, that the use of the
phrase “expert discovery” means discovery from experts - such as
obtaining their documents and taking their depositions; and,
second, that it means any discovery designed to aid experts in
rendering their opinions.

Defendants favor the first

interpretation, while Plaintiffs advocate for the second.
The case law is relevant only to the extent that it
establishes some common understanding of these terms.
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Plaintiffs

cite Bowe v. Consolidated Rail Corp., 230 F.3d 1357 (6th Cir.
Sept. 19, 2000) as an example of a court’s having treated an
expert site inspection as expert discovery.

The decision cited

does not rule on that issue, but describes the procedural history
of the case in the district court, which included granting a
motion to compel a site inspection.

The docket sheet in that

case shows that the court established a discovery cutoff date of
August 13, 1998 (Case No. 1:97-cv-2916, Doc. 8), and the motion
to compel was filed on December 14, 1998.

It was granted by

marginal entry, so it is impossible to determine the rationale
for the order, but the Court of Appeals decision states that the
plaintiff had requested the site inspection in June of 1998, well
within the fact discovery period, and that Conrail had refused
permission because of a pending summary judgment motion.
*1.

Id. at

Given the lack of explanation as to why the motion to compel

was granted, the history of that case is not terribly helpful in
determining how a reasonable person should construe an order
which draws a distinction between fact and expert discovery.
Plaintiffs also rely on two out-of-circuit cases, Doran v.
7-Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008) and Gottstein v.
Flying J, Inc., 2001 WL 36102290 (N.D. Ala. Sept. 27, 2001).

In

Doran, the Court of Appeals, in ruling on standing issues in an
ADA case, noted in passing that an expert had visited the
premises in question pursuant to a court order; it did not
mention whether the court had even established separate dates for
completing fact and expert discovery.

In Gottstein, there is a

footnote at *3, n.3, mentioning that the deadline for disclosing
expert reports was extended based on the need for a site
inspection; that decision does not mention whether separate fact
and expert discovery deadlines were established, but a review of
the electronic case file for Case No. 00-BU-3252-S shows a
scheduling order (Doc. 10) issued on December 13, 2000, setting a
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single discovery cutoff date of May 11, 2001.

There is no

indication when the site inspection at issue occurred.

Neither

of these cases shed any light on the threshold question under
consideration by the Court.
Both sides cite Sparton Corp. v. United States, 77 Fed.Cl.
10 (2007) on this issue.

There, the court, quoting Shell

Petroleum, Inc. v. United States, 46 Fed.Cl. 583, 584 (2000),
noted that the reason to set separate deadlines for each type of
discovery is “to allow the parties to investigate, completely,
all ‘facts’ before the parties proceeded to expert discovery.”
Sparton Corp., at 14.

It also quoted another Court of Claims

decision, Arkansas Game & Fish Comm'n v. United States, 74
Fed.Cl. 426, 429–30 (2006), for the proposition that “expert
discovery will be carried out through mandatory disclosure of the
reports of experts expected to testify at trial, and through
interrogatories or depositions ....”

Based on these cases, the

Sparton court held that discovery of facts which an expert might
use to support his or her opinions is fact discovery and that a
request for such information made after the fact discovery cutoff
date was untimely.

That case clearly supports Defendants’

position, as does Henry v. Quicken Loans Inc., 2008 WL 4735228,
*6 (E.D. Mich. Oct. 15, 2008), where, in language quoted in
Defendants’ brief, the court held that “[d]efendants cannot use
an expert to develop facts after the close of discovery when
those same facts could have been developed by attorneys during
fact discovery.”

That same decision noted that a fact discovery

cutoff had been established and that “[w]hile the parties could
develop expert data after this date based on the facts developed
as of [the discovery cutoff date], this order did not anticipate
that additional facts would be sought” after that date had
passed.

Id. at *4.

There is additional authority supporting Defendants’
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position.

For example, in ParkerVision, Inc. v. Qualcomm Inc.,

2013 WL 3771226 (M.D. Fla. July 17, 2013), the plaintiff
requested, during the expert discovery phase of the case, certain
information relating to prior testimony given or reports written
by the defendant’s expert witnesses.

It argued that such

information constituted “expert discovery” rather than fact
discovery, but the court found otherwise, stating that “these
discovery materials fall within the ambit of Rule 26(b)(1) for
general fact discovery.”

Id. at *1.

That court interpreted Rule

26(a)(2) and Rule 26(b)(4) to place limits on what constitutes
expert discovery, and it held that an order setting a separate
cutoff “does not provide an extended period of document discovery
related to the disclosed experts; rather, it allows for an
extended period of time to exchange expert reports pertaining to
the current litigation and to complete expert depositions.”

Id.

at *4.
There is some scant authority to the contrary, although the
basis of the ruling made in the one case the Court’s research
located, Windsor Craft Sales, LLC v. VICEM Yat Sanayi ve Ticaret
AS, 2011 WL 4625761 (D. Minn Oct. 3, 2011) is not entirely clear.
The cited opinion upheld a Magistrate Judge’s determination to
allow an inspection of several yachts which were the subject of
the lawsuit.

The request was made during the expert discovery

phase of the case, and the party opposing the request argued that
it was untimely.

The District Judge held that the Magistrate

Judge had not abused her discretion or acted contrary to law by
permitting the inspection, noting that in a case where discovery
had been bifurcated between fact and expert discovery, “Rule 34
does not specify when discovery requests must be made during
bifurcated discovery,” and further concluding that there was good
cause to extend the fact discovery cutoff because the parties had
been diligent about pursuing discovery.
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Reading the transcript

of the hearing on the motion, which is found in Case No.
0:10-cv-00297-ADM-JJG (D. Minn.), it appears that the basis of
the Magistrate Judge’s ruling was not that such an inspection was
expert rather than fact discovery, but that the fact discovery
cutoff should be extended to allow the inspection to occur.

See

Doc. 83 (Transcript of Motions Hearing held on 9/6/2011 before
Magistrate Judge Jeanne J. Graham), at 19 “I think, then, that
there should be an extension”).

The Court has not found a single

case which holds either, as a general matter, that any discovery
request designed to uncover facts for an expert witness to
consider is “expert discovery,” or, as a specific matter, that a
site inspection which will be attended by an expert witness is
“expert discovery.”
The Court finds the cases supporting Defendants’ position to
be persuasive for several reasons.

One is, as Defendants argue,

that much of the information produced during “fact discovery” is
used as a foundation for expert opinions.

It would make little

sense to have separate cutoff dates for fact and expert discovery
if discovery of any information which might form the basis for
expert opinions could be deferred to the “expert discovery”
phase; that phase, which is usually much shorter than the fact
discovery phase, would then turn out to be more extensive, and it
would be very difficult to determine when discovery was really
concluded.
A second reason, which ties into the first, is the time
actually allotted for “expert discovery” in this case.

Under the

initial scheduling order, the Court allowed the parties roughly
seven additional months to complete their fact discovery (which
could have begun a month before the initial pretrial conference
based on the date of the parties’ Rule 26(f) meeting).

By

contrast, the “expert discovery” phase ran from September 13,
2013 to February 21, 2014, a period of about five months, and
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included designation of experts on October 14, 2013 and December
6, 2013.

Had the Court contemplated extensive discovery of facts

which would be used to support the experts’ opinions during this
period, it would not likely have limited Plaintiffs to only one
month to complete such discovery before being required to provide
Defendants with a fully-supported report, especially when most
discovery devices, including a Rule 34 request, have a 30-day
turnaround time.
Third, this Court typically discourages parties from
requesting separate cutoff dates for fact and expert discovery,
essentially for the reason which has led to the current dispute.
It is often the case that after experts either prepare their
reports or are in the process of doing so, they identify
additional factual inquiries they would like to make.

If there

is a single discovery cutoff date, which is usually thirty to
sixty days after the last expert witness disclosure date, the
schedule can accommodate that situation.

If not, the Court will

be faced either with a motion to extend the fact discovery cutoff
date (which must be supported by a showing of good cause) or, as
has happened here, a disagreement about whether the new request
is “fact” or “expert” discovery.

It is likely the Court

expressed this concern during the initial pretrial conference,
because it is not the usual practice of the Court to set separate
discovery cutoffs, but the parties apparently persuaded the Court
to deviate from its usual practice because they all wanted that
structure to the case schedule.

Having asked for such

bifurcation of discovery, however, they are not in a strong
position now to argue in favor of what would amount to a negation
of that concept.
This Court knows exactly what it intended by setting
separate dates for the completion of fact and expert discovery.
The latter type of discovery is devoted to the exchange of expert
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reports and information about those reports, including the
required Rule 26(a)(2) disclosures and depositions of the
experts.

In the Court’s view, site visits are fact discovery

just as much as are document productions and depositions of fact
witnesses, and must be requested during the fact discovery
period.

The Court’s subjective intent is borne out by the case

law, and Plaintiffs should reasonably have understood the order
in that way.

Therefore, they are not entitled to conduct a site

visit under the guise of “expert discovery.”
The remaining question is whether, if the site visit request
is fact discovery, and should have been completed by September
13, 2013, is there any basis for relaxing that deadline to
accommodate the request?

Plaintiffs appear to argue that because

they may have mentioned their intent to ask for an inspection of
the jail at some time during the fact discovery period, good
cause exists to extend the fact discovery cutoff date for this
purpose.
The Court need not review extensively the principles
governing modification of a date established in a Rule 16
scheduling order because it just did so in the Opinion and Order
filed on January 30, 2014.

As noted in that order (Doc. 157, at

4-5), the touchstone of any request to extend such a date is the
diligence of the moving party.
The Court cannot find such diligence here.

There is a vast

difference between mentioning to an opposing party in litigation
the intent to pursue some issue through discovery, and actually
pursuing it.

Any mention which might have been made - and, as

noted, there is a dispute about whether the topic even came up was, at best, a statement of future intent and not a proper
discovery request.

Nothing prevented Plaintiffs from pursuing,

informally at first, and then formally, if that produced no
results, a written request for inspection of the jail under Rule
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34, and from doing so prior to September 13, 2013.

Any belief

that they could do so as part of the expert discovery period
would have been, as discussed above, unreasonable.

Further, it

appears that the first time they ever reduced the request to
writing was in January, 2014, and then only in an email.

Nothing

about this course of conduct demonstrates the type of diligence
needed to obtain extension of the fact discovery cutoff date.
The Court has considered the potential prejudice to
Plaintiffs from the denial of their request, and offers these
observations.

Presumably, Plaintiffs, through questioning

Sheriff Scott and other witnesses, possess at least a basic
understanding of the layout of the jail as that layout is
relevant to this case.

There are sources of information about

that as well that do not depend on discovery, such as
conversations with ex-inmates or others who are familiar with it.
Further, Plaintiffs have represented that the Defendants’ expert
intends to conduct a site visit.

If he does so and expresses

opinions based on that visit, Defendants will be required to
disclose not only his opinions but also “the facts or data” he
considered in reaching those opinions and “any exhibits that will
be used to summarize or support them.”

So, for example, if he

videotapes the visit and intends to use that videotape to support
his opinions, Plaintiffs will have to be given a copy of that
document.

If such information causes their expert to modify his

opinions, they may timely supplement his report.

So Plaintiffs

will not likely be deprived of foundational information needed
for their expert to express opinions even if he does not have the
chance to conduct a site visit himself.

Under all these

circumstances, they have simply not made out a compelling case
for the Court to permit them to engage in this discovery after
the cutoff date.
For all of these reasons, the Court declines to grant
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Plaintiffs any relief based on the matter raised in their brief
of February 7, 2014, requesting an expert site inspection.
Motion for Reconsideration
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.

The motion must specifically designate the order or

part in question and the basis for any objection.

Responses to

objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge

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