No Good Cause to Reopen Discovery

Last month, we discussed the “good cause” requirement supporting any motion to extend discovery. This post discusses two more local, federal cases where the plaintiffs did not demonstrate good cause.

No Good Cause to Reopen Discovery

Carrillo v. Las Vegas Metro. Police Dep’t, 2013 U.S. Dist. LEXIS 114781, 2013 WL 4432395 (D. Nev. August 14, 2013) concerned a wrongful death complaint. On July 9, 2013, Plaintiffs filed a motion to entirely reopen discovery so as to disclose an additional expert witness. Procedurally, it seems initial expert disclosures were due on July 27, 2012, per the court’s fourth discovery scheduling order, and discovery was to close on September 26, 2012. Subsequently the court granted a limited extension of discovery to permit the completion of certain depositions, but no other discovery.

The court first explained the standard against which it judged this motion.

Local Rule (LR) 26-4 provides that applications to extend any date set by the discovery plan, scheduling order or other order must, in addition to satisfying the requirements of LR 6-1, be supported by a showing of good cause for the extension. LR 26-1 also requires that an application for the extension of a deadline must be received by the Court no later than 21 days before expiration of the subject deadline. LR 6-1 provides that “[a] request made after the expiration of the specified period shall not be granted unless the moving party, attorney or other person demonstrates that the failure to act was the result of excusable neglect.” LR IA 10-6(c) also provides that “[e]xcept where accompanied by a request for relief under subsection (e) of this Rule, the signature of an attorney to a stipulation to substitute such attorney into a case constitutes an express acceptance of all dates then set for pretrial proceedings, for trial or hearing, by the discovery plan, or in any Court order.”

Plaintiffs first threw their former counsel under the bus. Plaintiffs argued “their prior counsel did not conduct any discovery, including retaining and disclosing any expert witnesses.” The court noted, however, new counsel substituted in “on August 2, 2012, without any accompanying request pursuant to LR IA 10-6(e) for relief from the scheduling order.” It also noted new counsel had obtained the limited extension of discovery discussed above.

The court determined:

Plaintiffs have not met their burden that good cause or excusable neglect justifies a re-opening of the deadline for disclosing expert witnesses this long after the expert witness disclosure deadline expired. As the Ninth Circuit stated in Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992), good cause for the modification of a scheduling order pursuant to Rule 16(b) of the Federal Rules of Civil Procedure primarily considers the diligence of the party seeking the amendment. The court may modify the pretrial schedule if it cannot be met despite the diligence of the party seeking the extension. Carelessness is not compatible with a finding of diligence. The court also noted that “[a]lthough the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons for seeking modification. Here, the failure of the Plaintiffs’ prior counsel to conduct any discovery or retain an expert before August 2012 is not a reasonable excuse or justification to reopen the expert witness disclosure deadline. To reopen expert discovery at this point in the case would make scheduling order deadlines meaningless.

Motion denied. As before, the alleged failings of prior counsel will not save the client in federal court and do not satisfy the “good cause” needed to extend discovery.

No Good Cause to Remedy Deficient Expert Disclosures

If you cannot blame former counsel, what about your out-of-state co-counsel? In Gilbert v. Spirit Airlines, Inc., 2013 U.S. Dist. LEXIS 150439, 2013 WL 5718895 (D. Nev. Oct. 17, 2013) the deadline to disclose experts was July 15, 2013. “On July 15, 2013, Plaintiffs disclosed the names of seven expert witnesses upon whom they intend to rely at trial. The disclosure did not comply with any of the requirements of Fed R. Civ. P 26(a)(2)(B). Defendant therefore seeks an order striking the designation.” The parties had agreed to extend discovery, but this explicitly excluded experts.

During oral argument local counsel for Plaintiffs acknowledged that Plaintiffs had not conducted any discovery in this case, and did not ask for an extension of the deadline of the expert disclosure deadline until after the deadline has expired. Counsel for Plaintiffs could not dispute that out of state counsel was told on July 17, 2013 that he would have to apply to the court for an extension. He could not explain why out of state counsel took no action to seek relief from the court until responding to the motion to strike on September 27, 2013. He did not know when the experts were retained, and could not address why the discovery out of state counsel indicates is necessary for the experts to provide opinions was not initiated. Rather, he argued that this case should be decided on the merits and that Defendant would not be prejudiced by an extension.

The court heartily endorses the principle that cases should be decided on their merits. However, in this case Plaintiffs’ counsel did absolutely nothing to pursue any discovery at all within the initial discovery plan and scheduling order deadlines. Plaintiffs have still not initiated any discovery. Counsel did not request a stipulation extending the deadline to disclose experts from opposing counsel until after the expiration of the deadline when defense counsel called seeking Rule 26 complaint disclosures. Counsel for Plaintiffs stipulated to an extension of the discovery cutoff but did not request an extension of the deadline to disclose experts. Plaintiffs’ counsel did not file a request for relief from the court when told defense counsel would not stipulate to an extension after the expiration of the deadline. Plaintiffs did not even address the issue until responding to the motion to strike, two and a half months later. Defendant timely disclosed its only expert and served a Rule 26(a)(2)(B) compliant report. Rule 26 and LR26-1(e) require simultaneous exchanges of expert disclosures to put each side on equal footing and to prevent one side from receiving a strategic advantage by waiting to disclose until after receiving the opposing party’s disclosure.

What about that good cause requirement?

In this case, Plaintiffs requested a stipulation extending the deadline to designate experts two days after the expiration of the deadline. When told Defendant would not stipulate Plaintiffs did not seek relief from the court, or even raise the issue until responding to the motion to strike two and a half months later. An application to extend a deadline that has expired must establish excusable neglect. Fed. R. Civ. P. 6(b), and LR 6-1(b).

The court finds that Plaintiffs have not established good cause, let alone excusable neglect, for failing to conduct any discovery at all needed to comply with the expert disclosure deadline. Plaintiffs have not offered any reason for their failure to initiate the discovery needed for their experts to provide opinions. Plaintiffs have not shown that they exercised diligence in prosecuting their claims or that they made any attempt to comply with the court’s discovery plan and scheduling order. Plaintiffs have not explained why the depositions that the Defendant noticed are needed for their experts to provide opinions. Presumably, Plaintiffs retained experts in pathology and cardiology to offer opinions about the decedent’s medical condition, cause of death, and appropriate treatment of a patient presenting with cardiac arrest. This is all information Plaintiffs’ counsel should have access to, even in the absence of formal discovery. Similarly, a psychiatry expert is generally retained to provide opinions about the Plaintiffs’ emotional distress stemming from the loss of their loved one. This is also information uniquely available to the Plaintiffs. Plaintiffs completely disregarded the scheduling order until after Defendant moved to strike the disclosure which only identified the names of the experts.

Motion to strike granted. What does that mean for practical purposes? Plaintiffs probably cannot prove liability and have even slimmer hopes of proving damages. I suspect “game over” for all intents and purposes.

In summary, the “good cause” requirement does have teeth in federal courts.