Sundance Energy Oklahoma LLC v. Dan D Drilling Corporation

Filing 85

ORDER granting 68 Plaintiff's Motion to Strike Daniel Reineke's expert Report, as more fully set out. Signed by Honorable David L. Russell on 11/6/14. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
SUNDANCE ENERGY
OKLAHOMA, LLC, d/b/a
SEO, LLC,
Plaintiff,
v.
DAN D. DRILLING
CORPORATION,
Defendant.

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Case No. CIV-13-991-R

ORDER
Before the Court is the Motion of Sundance Energy Oklahoma, LLC and
Sundance Energy, Inc. to Strike Daniel Reineke’s Expert Report. Doc. No. 68.
Defendant’s deadline for filing its final list of expert witnesses and submitting its expert
reports was September 15, 2014. Doc. No. 43, at 1. On September 15, the parties
privately agreed to a ten-day extension of Defendant’s deadline, thus requiring Defendant
to submit the above materials by September 25. Doc. No. 68, at 2; Doc. No. 78, at 2.
Defendant did not ask the Court to amend the Scheduling Order in accordance with this
agreement. Defendant did not file its final expert list by September 25, but rather
included Daniel Reineke on its final witness list filed on September 29, designating him
as an expert. Doc. No. 62, at 4. Additionally, Defendant did not submit Reineke’s expert
report to Plaintiff until October 2. Doc. No. 68, at 3; Doc. No. 78, at 2. Thus, Defendant
missed the Scheduling Order’s deadline for submitting expert reports by seventeen days
and the parties’ private deadline by seven days.

Analysis
Under FED. R. CIV. P. 26(a)(2), a party that seeks to call an expert witness at trial
must provide the opposing party with a written expert report by the time ordered by the
Court. Generally, “when a party fails to comply with Rule 26(a)’s disclosure
requirements, that party ‘is not allowed to introduce the expert witness’s testimony … at
trial.’” ClearOne Commc’ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1176 (10th Cir. 2011)
(citations omitted). But the offering party may still call the expert witness at trial if the
failure to abide by Rule 26(a) was “substantially justified or is harmless.” FED. R. CIV. P.
37(c)(1). To determine whether the failure to comply is justified or harmless the Court
weighs four factors: “(1) the prejudice or surprise to the party against whom the
testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to
which introducing such testimony would disrupt the trial; and (4) the moving party’s bad
faith or willfulness.” ClearOne, 653, F.3d at 1176 (citing Jacobsen v. Deseret Book Co.,
287 F.3d 936, 953 (10th Cir. 2002)).
A. Prejudice & Ability to Cure
Plaintiff argues that it is prejudiced by Defendant’s failure to comply with Rule
26(a) because the deadline for filing a Daubert motion has passed, and Plaintiff could not
have filed such a motion without Mr. Reineke’s report and without the opportunity to
depose him. Doc. No. 68, at 6. The deadline for filing Daubert motions was September
30, 2014. Doc. No. 43, at 2. Defendant states that when the parties agreed to the ten-day
extension, Plaintiff’s “counsel was told that Dan D would register no objection to
Sundance/SEO having [an] extension of time to file a Daubert motion if warranted.” Doc.
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No. 78, at 3-4. Because Defendant expects that expert depositions will not be taken until
late November, it concludes that “no one is in [a] position to file a Daubert motion.” Id. at
4.
Under FED. R. CIV. P. 16(b)(4), “[a] schedule may be modified only for good
cause and with the judge’s consent.” Good cause exists when the deadline “cannot
reasonably be met despite the diligence of the party seeking the extension.” See
Oklahoma ex rel. Doak v. Acrisure Bus. Outsourcing Servs., LLC, 529 F. App’x 886, 891
(10th Cir. 2013) (unpublished) (quoting FED. R. EVID. 16 advisory committee’s note).
Defendant states that the reason it could not provide its final expert witness list and
expert report to Plaintiff by September 25 was that “[u]nbeknownst to Dan D’s counsel,
Mr. Reineke was out of Oklahoma City and unable to work on his report for [a]
considerable period of the ensuing ten days.” Doc. No. 78, at 3. It also states that it did
not receive the deposition of Plaintiff’s engineer, Jacob Ellwood, until September 25, and
provided Mr. Reineke with the deposition on September 28 when he returned to
Oklahoma City. Id. at 3 n.2. Defendant notified Plaintiff on September 29 that Mr.
Reineke’s report was forthcoming. Id. at 4.
The Court finds that Defendant’s explanation does not constitute good cause
sufficient to extend the Daubert motion filing deadline. Defendant missed the Courtordered deadline of September 15 and did not ask the Court to extend that deadline. It did
not notify Plaintiff of the status of Mr. Reineke’s report until September 29, four days
after the parties’ private deadline. Defendant also provided no explanation as to why it
failed to maintain proper communication with Mr. Reineke regarding his schedule and
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Defendant’s deadlines. And it does not explain why the Court should take into account
the fact that Defendant did not receive Mr. Ellwood’s deposition until September 25,
given that Defendant should have been aware of the Court’s September 15 deadline when
scheduling depositions, and Defendant did not ask the Court for an extension of that
deadline. Plaintiff is prejudiced by Defendant’s failure to abide by Rule 26(a) because the
deadline for filing Daubert motions had passed by the time Defendant produced Mr.
Reineke’s expert report. And Defendant is unable to cure this prejudice because it cannot
demonstrate good cause sufficient to permit the court to amend the scheduling order.
B. Disruption of Trial & Bad Faith or Willfulness
The discovery deadline in this case is December 15 and trial is set for February
2015. Order, Doc. No. 73. The Court finds that Defendant’s filing of its expert report on
October 2 has not significantly disrupted Plaintiff’s preparation for trial, other than
preventing it from filing a timely Daubert motion. There is also no evidence that
Defendant’s failure to comply with Rule 26(a) was the result of bad faith or willfulness.
Rather, its delayed submission of Mr. Reineke’s expert report appears to have resulted
from a lack of diligence.
Conclusion
Because Defendant’s untimely delivery of Mr. Reineke’s expert report has
prejudiced Plaintiff, and Defendant has not shown good cause for extending the deadline
for filing Daubert motions, Plaintiff’s motion to strike Daniel Reineke’s expert report
[Doc. No. 68] is GRANTED.

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IT IS SO ORDERED this 6th day of November, 2014.

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