Gill v. Magan et al
Filing
62
ORDER re Defendants' 51 Motion to Compel. The Court GRANTS the Motion and ORDERS production of the timeline within 5 days of entry of this Order. Signed by Judge Marsha J. Pechman. (PM)
Case 2:19-cv-00860-MJP Document 62 Filed 01/06/21 Page 1 of 3
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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NANCY GILL,
Plaintiff,
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CASE NO. C19-860 MJP
ORDER GRANTING
DEFENDANTS’ MOTION TO
COMPEL
v.
MICHAEL MAGAN, et al.,
Defendants.
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This matter comes before the Court on Defendants’ Motion to Compel. (Dkt. No. 51.)
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Having reviewed the Motion, Plaintiff’s Opposition (Dkt. No. 53), the Reply (Dkt. No. 61), and
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all supporting papers, the Court GRANTS the Motion.
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BACKGROUND
Defendants seek production of a document that Plaintiff’s expert reviewed in forming his
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opinions. The document is entitled “Nancy Gill Complete Timeline (003) – Nancy Gill Case
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Timeline of Events.” Plaintiff’s counsel states that the document contains “a compilation of
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events derived from police reports.” (Declaration of Darryl Parker ¶ 5 (Dkt. No. 54).) Plaintiff
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ORDER GRANTING DEFENDANTS’ MOTION TO COMPEL - 1
Case 2:19-cv-00860-MJP Document 62 Filed 01/06/21 Page 2 of 3
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did not produce this document to Defendants and now claims that it contains attorney work
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product.
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ANALYSIS
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Defendants Motion is Timely
The Court may extend a case deadline if the moving party shows that it could not
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reasonably meet the deadline despite its diligence. Fed. R. Civ. P. 16(b); Johnson v. Mammoth
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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “Rule 16(b)’s ‘good cause’ standard
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primarily considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609.
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Although Defendants did not ask leave to file this Motion after the discovery motion
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deadline, they sufficiently addressed the issue in their reply. As Defendants have demonstrated,
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they diligently sought production of the timeline from Plaintiff, and the delay in filing the
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Motion is excusable. The Court finds the record before it evidences sufficient good cause to
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allow this late filing.
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B.
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The Document Must be Produced
Rule 26(a)(2)(B)(ii) requires an expert report to contain and disclose “the facts or data
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considered by the witness in forming them.” “The disclosure obligation extends to any facts or
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data ‘considered’ by the expert in forming the opinions to be expressed, not only those relied
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upon by the expert.” Fed. R. Civ. P. 26(a)(2)(B) Adv. Comm. Note to 2010 Amendment. There
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are exceptions to this disclosure obligation. Rule 26(b)(3) excludes from disclosure trial
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preparation materials including certain expert materials. See Republic of Ecuador v. Mackay,
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742 F.3d 860, 866 (9th Cir. 2014). But “a party may still obtain discovery of trial preparation
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materials under Rule 26(b)(3) if they are otherwise discoverable and the party shows that it has a
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‘substantial need’ for the materials and ‘cannot, without undue hardship, obtain their substantial
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ORDER GRANTING DEFENDANTS’ MOTION TO COMPEL - 2
Case 2:19-cv-00860-MJP Document 62 Filed 01/06/21 Page 3 of 3
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equivalent by other means.’” Id. (quoting Fed. R. Civ. P. 26(b)(3)(A)). And Rule 26(b)(4)(C)
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permits discovery of “communications between the party’s attorney and any [expert required to
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produce a report] . . . to the extent that the communications . . . identify facts or data that the
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party’s attorney provided and that the expert considered in forming the opinions to be
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expressed.” Fed. R. Civ. P. 26(b)(4)(C); see Mackay, 742 F.3d at 866.
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The Court finds production of the timeline appropriate. The document, even if prepared
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by counsel, is a timeline that contains “a compilation of events derived from police reports.”
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(Parker Decl. ¶ 5.) The timeline thus contains facts and data on which the expert relied in
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forming his opinions. It must be produced under Rule 26(a)(2)(B) and (b)(4)(C). The Court
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therefore GRANTS the Motion and ORDERS the production of the timeline within 5 days of
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entry of this Order.
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CONCLUSION
Defendants have demonstrated that they should be entitled to review the timeline on
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which Plaintiff’s expert relied in forming his opinions, and that their motion should be accepted
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as timely filed. The Court GRANTS the Motion and ORDERS production of the timeline within
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5 days of entry of this Order.
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The clerk is ordered to provide copies of this order to all counsel.
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Dated January 6, 2021.
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Marsha J. Pechman
United States District Judge
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ORDER GRANTING DEFENDANTS’ MOTION TO COMPEL - 3
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