Opinion
Order Denying Reconsideration December 18, 2017 [Copyrighted Material Omitted]
Elizabeth A. Birdwell, James S. Chase, Lamont A. Belk, Philip J. Pfeifer, Office of the General Counsel, Knoxville, TN, for Plaintiff.
Thomas H. Camp, Donald C. Evans, Jr., Evans Law Firm, Cartersville, GA, for Defendants.
ORDER
Harold Lloyd Murphy, SENIOR UNITED STATES DISTRICT JUDGE
This case is before the Court on Plaintiff’s Motion to Exclude Defendant Johnny Bradley Scott’s (" Defendant’) Undisclosed Expert Testimony [39], on Defendant’s Motion for Discovery [43], and on Defendant’s Motion for Hearing to Set Status and Scheduling Conference [48].
Defendant’s Motion for Discovery is procedurally improper, as Defendant did not attach a brief in support of the Motion. N.D.Ga. R. 7.1A(1). The Court therefore denies the Motion without prejudice. Alternatively, the Court finds that Defendant has not shown good cause or excusable neglect to reopen discovery or to extend discovery deadlines in this action. The Court therefore denies the Motion on its merits.
Given the results of this Order, any request by Defendant for a scheduling or status conference in this case is moot. The Court therefore denies as moot the Motion for Hearing to Set Status and Scheduling Conference.
I. Background
On May 3, 2017, the Parties filed a Joint Preliminary Report and Discovery Plan. (Jt. Prelim. Report & Discovery Plan (Docket Entry No. 25).) The Joint Preliminary Report and Discovery Plan provided, in relevant part:
The parties agree that expert disclosure in accordance with Fed.R.Civ.P. 26(a)(2) will be served by Defendant by June 15, 2017, and by Plaintiff by July 17, 2017. Defendant will have fourteen days thereafter— until July 31, 2017— to supplement his expert disclosure. Plaintiff will have seven days thereafter— until August 7, 2017— to supplement its expert disclosure. Supplemental reports shall be restricted in scope to responding to the most recent report provided by the other party.
(Id. ¶ 9 (emphasis in original).) On May 4, 2017, the Court entered its Scheduling Order approving the Joint Preliminary Report and Discovery Plan, which provided that discovery would conclude on November 6, 2017. (Scheduling Order (Docket Entry No. 26).) On June 15, 2017, Defendant filed a Motion for Order to Modify Scheduling Order. (Mot. Modify Scheduling Order (Docket Entry No. 29).) On June 16, 2017, the Court granted that Motion. (Order of June 16, 2017 (Docket Entry No. 30).) The June 16, 2017, Order, which Defendant’s counsel apparently prepared, provided, in relevant part:
It is therefore ORDERED that the following deadlines shall be applied herein:
a. Defendant’s Expert Disclosures: June 29, 2017;
b. Plaintiff’s Expert Disclosures: July 31, 2017;
c. Defendant’s Supplemental Expert Disclosures: August 14, 2017; and
d. Plaintiff’s Supplemental Expert Disclosures: August 21, 2017.
(Id. at 1-2 (emphasis and capitalization in original).)
On June 29, 2017, Defendant filed a Motion to Amend Scheduling Order. (Mot. Am. Scheduling Order (Docket Entry No. 33).) On June 30, 2017, the Court granted that Motion. (Order of June 30, 2017 (Docket Entry No. 34).) The June 30, 2017, Order, which Defendant’s counsel apparently prepared, provided, in relevant part:
It is therefore ORDERED that the following deadlines shall be applied herein:
a. Defendant’s Expert Disclosures: 30 days after Plaintiff provides the information requested in Defendant’s June 23, 2017, discovery requests;
b. Plaintiff’s Expert Disclosures: 30 days after Defendant’s Expert Disclosures are due;
c. Defendant’s Supplemental Expert Disclosures: 14 days after Plaintiff’s Expert Disclosures are due; and
d. Plaintiff’s Supplemental Expert Disclosures: 7 days after Defendant’s Supplemental Expert Disclosures are due.
(Id. at 1-2 (emphasis and capitalization in original).)
On August 25, 2017, Plaintiff filed a Notice of Service of Responses and Requests. (Notice of Service (Docket Entry No. 35).) In that document, Plaintiff indicated that it served its responses to Defendant’s First Interrogatories and Requests for Production of Documents on August 25, 2017. (Id. at 1-3.) Plaintiff stated: " Pursuant to the Order Modifying Scheduling Order (Doc. 30), Defendant’s expert disclosures are due September 25, 2017." (Id. at 2.) Defendant did not file a response to that document. (See generally Docket.)
Defendant did not file expert disclosures by September 25, 2017. (See generally Docket.) Defendant has presented a copy of an e-mail from his counsel dated September 22, 2017, in which Defendant’s counsel stated that Defendant needed to request an extension of time to complete expert disclosures, and asked if counsel for Plaintiff would consent to a thirty-day extension. (Resp. Mot. Exclude Ex. B (Docket Entry No. 44-2) at 2.) On September 25, 2017, Defendant’s counsel sent another e-mail concerning the expert disclosures, stating, in relevant part:
Stacy also indicated that you would condition any extension of the expert disclosures deadlines referenced below on our agreement to the additional stipulations. I think we have given our unconditional consent to your prior request for a 30-day discovery extension. Although we would have appreciated your reciprocity in this regard, my further review of the files at issue indicates an extension is not needed at this time. Accordingly, we withdraw our request.
The modified scheduling order entered by Judge Murphy for these cases on June 30 sets the deadline for our expert disclosures as being " 30 days after Plaintiff provides the information requested in Defendant’s June 23, 2017 discovery requests." Although TVA served discovery responses to these requests on August 25, these responses— which consisted mostly of objections and contained no valuation information— came no where [sic] close to providing " the information requested." As a result, these responses did not trigger the commencement of the 30-day time period for us to provide expert disclosures.
The entire reason for tying the expert disclosures to the discovery responses and production was so that our expert will have the opportunity to review any relevant materials before finalizing his expert disclosures. Of course, your expert will have the additional benefit of our actual disclosures before finalizing his.
We look forward to receiving this information and will make sure to have you our disclosures within 30 days thereafter. If you want to discuss any bona fide objections to our requests, we are happy to do so.
(Id. )
On October 25, 2017, Plaintiff filed its Expert Disclosure. (Expert Disclosure (Docket Entry No. 36).) On October 27, 2017, Plaintiff filed its Motion to Exclude Defendant’s Undisclosed Expert Testimony. (Mot. Exclude (Docket Entry No. 39).) The briefing process for that Motion is complete, and the Court finds that the matter is ripe for resolution.
II. Discussion
A. Parties’ Positions
Plaintiff requests that the Court enter " an order excluding all expert testimony that may be offered in this action by [Defendant] for his failure to provide Rule 26(a)(2) expert disclosures within the deadline established by the modified scheduling order." (Mot. Exclude at 1.) According to Plaintiff, Defendant failed to file or serve expert disclosures by the applicable deadline. (Br. Supp. Mot. Exclude (Docket Entry No. 39-1) at 2-3.) Plaintiff argues that Defendant’s " failure to make timely expert disclosures ... unfairly prejudices Plaintiff" by having " the practical consequence of shifting the order of expert disclosures and burden of expert proof from Defendant to [Plaintiff]," and " by effectively preventing or limiting Plaintiff from engaging in meaningful discovery of third parties relating to facts and data relied upon by any such expert before the November 20, 2017, close of discovery." (Id. at 3.) Plaintiff argues that Defendant has not complied with Federal Rule of Civil Procedure 26(a), and contends that the Court should exclude this evidence under Federal Rule of Evidence 37(c). (Id. at 4-5.)
Defendant opposes the Motion, arguing that the thirty-day deadline was never triggered because Plaintiff’s responses to the discovery requests were deficient. (Resp. Mot. Exclude (Docket Entry No. 44) at 2-6.) According to Defendant, " the Court made clear that [Plaintiff] could not trigger [Defendant’s] duty [to] produce his expert report by simply serving pro forma discovery responses or objections that contained little to no useful information." (Id. at 3.) Defendant also contends that " the lack of a fixed deadline allowed the [P]arties the flexibility to extend professional courtesy to one another in facilitating the progress of discovery." (Id. ) According to Defendant, his counsel made his position clear " that [Defendant’s] time to submit expert disclosures under the Court’s modified scheduling order was only triggered by [Plaintiff’s] production of the requested information." (Id. at 4.) Defendant complains that Plaintiff " ignores the Court’s deadlines and makes up its own," and that Plaintiff " attempts an end run around the entire purpose for the modified scheduling order in the first place." (Id. ) Defendant asks the Court to extend discovery to a fixed deadline that " will prevent any room for further maneuvering by [Plaintiff] to construe a contingent deadline as something it’s not." (Id. at 6.) Alternatively, Defendant argues that his failure to provide expert disclosures " was in good faith, substantially justified, and harmless." (Id. )
In its reply, Plaintiff argues that " [Defendant] cannot, after sitting on his hands for three months, claim good cause, substantial justification, or excusable neglect as grounds for overlooking his non-disclosure." (Reply Supp. Mot. Exclude (Docket Entry No. 49) at 2.) Plaintiff notes that the discovery requests at issue were not relevant to the sole remaining issue in this case— just compensation— and contends that Defendant’s attempt to advance a discovery dispute is untimely. (Id. at 4-7.) Plaintiff also points out that, even if the requested information were somehow relevant, Defendant could have, at a minimum, disclosed basic information about his expert within the deadline established by the Scheduling Order and then amended those disclosures later. (Id. at 2.)
B. Discussion
As an initial matter, the Court is not at all persuaded by Defendant’s attempts to re-write the Scheduling Order. Nothing in the Scheduling Order required that Plaintiff provide anything other than responses to Defendant’s June 23, 2017, Discovery Requests. (Scheduling Order at 1.) Plaintiff provided responses. Defendant now attempts to argue that this language meant that Plaintiff had to provide responses that were acceptable to Defendant; however, the portion of the Scheduling Order establishing Defendant’s deadline for serving expert disclosures does not say anything about Plaintiff’s discovery responses being acceptable to Defendant. At best, the Scheduling Order may be ambiguous as to this point. Defendant’s counsel, however, drafted and presented the proposed Order, and Defendant bears the risk of any ambiguities. If Defendant’s counsel truly did not believe that the Scheduling Order required Defendant to file expert disclosures within thirty days of Plaintiff serving its discovery responses, counsel could have, and should have, responded to the Notice of Service that Plaintiff’s counsel filed stating that " [p]ursuant to the Order Modifying Scheduling Order (Doc. 35), Defendant’s expert disclosures are due September 25, 2017." (Notice of Service at 2.) Defendant’s counsel did nothing, and did not request an extension of the expert disclosure deadline. Under those circumstances, the Court rejects Defendant’s attempt to re-write the Scheduling Order at this late date.
The Court also notes that, if Defendant had issues with Plaintiff’s discovery responses, Defendant could have, and should have, filed a Motion to Compel concerning those responses within the applicable time period. Defendant did not do so, and it cannot now complain that any alleged deficiency in Plaintiff’s discovery responses justifies its delay in producing expert disclosures. Further, the Court will not take it upon itself to examine the sufficiency of Plaintiff’s discovery responses simply because Defendant contends, in a response to another motion, that those responses are deficient.
In any event, any alleged deficiency in Plaintiff’s discovery responses would not excuse Defendant’s failure to make timely expert disclosures, as the discovery requests at issue do not seek information that is relevant to the sole remaining issue in this case— just compensation. For example, Defendant requests: (1) " understanding of, and projections concerning, the retail value of the electricity that will pass through the Transmission Line, at today’s wholesale and retail rates, on a daily, monthly, and annual basis when operated at full capacity" (Resp. Mot. Exclude Ex. A (Docket Entry No. 44-1) Interrog. 2); (2) " all projections or other documents concerning the EMFs that will exist on the Easement Property once the Transmission Line is operational and at full capacity, specifying the anticipated milligauss level that will exist on the outer edge of the Easement Property" (id. Interrog. 3); (3) " all studies or other documents in your possession, custody or control that show or discuss physical, biological, or market effects of EMFs on plants, animals, persons, electronic equipment, and property values" (id. Interrog. 4); (4) " any industry or land use standards or internal regulations of which you are aware regarding minimum buffer distances between transmission lines and residences as well as your opinion of the minimum safe buffer distance between the Transmission Line within the Easement Property and residences and schools" (id. Interrog. 5); (5) " the circumstances under which the Transmission Line will emit noise audible on the Easement Property or Remainder Tract, its anticipated decibel level both at the center line of the Transmission Line and the edge of the Easement Property and [i]dentify any studies, complaints, and mitigation efforts, in your possession concerning such noise throughout TVA’s electric transmission system during the past five (5) years" (id. Interrog. 6); (6) " all cost estimates that refer to or discuss anticipated land acquisition costs for the Transmission Line" (id. Interrog. 7); (7) information concerning individuals who will have real property or interest in the easement property or who will have access to the property once the transmission line is operational (id. Interrog. 9); (8) " all documents in the possession, custody, or control of TVA that refer to or discuss the Easement Property or Remainder Tract" (id. Interrog. 10); (9) " the type, location, and size of towers, poles, and supporting structures; the location, gauge, and coupling devices of all grounding systems; the size and location of all necessary or desirable guy wires; the width of the easement; and the maximum amount of electricity that can be carried by the Transmission Line" (id. Interrog. 11); (10) information concerning " electric ground current or induced electric current flow" from the transmission line, including information concerning: (a) " how lightning strikes or load imbalances shed or discharge into the Easement Property and the potential for such loads to migrate outside the Easement Property and onto the Remainder Tract" (id. Interrog. 17(a)); (b) " how electricity will flow through trees adjacent to, but not in physical contact with, the Transmission Line" (id. Interrog. 17(b)); and (c) " any complaints or claims made against Plaintiff based on induced current from Plaintiff’s electric transmission line system during the past five (5) years" (id. Interrog. 17(c)); (11) " documents indicating that electric ground currents (or stray voltage) or harmonics of 60-cycle electricity can create a potential for harm to plants, animals, or humans" (id. Interrog. 18); (12) " [i]dentify all persons who have complained about any aspect of the Transmission Line at issue in this case, and with respect to each such person, the nature of said complaint, who received said complaint, and any action taken in response to such complaint" (id. Interrog. 19); (13) " [i]dentify all persons who were involved in making decisions regarding the route of the Transmission Line on and through the Property and their role in the process," including information concerning route selection, physical features of the Property considered when determining the location of the Transmission Line, and outside approvals requested (id. Interrog. 20); (14) " whether, and the extent to which, Plaintiff allows (or is required by law to allow) other persons or entities to share, co-locate, or use any part of its electric system, including[,] without limitation, electric companies, pipe line companies, cable television companies, sewer companies, and other public or private utility companies, the terms upon which such access is provided, and [i]dentify all instances where any such co-location has occurred within Plaintiff’s electric transmission system during the past five years" (id. Interrog. 21); (15) " all federal, state, and local governmental laws, regulations, and rules that Plaintiff’s electric transmission system is subject to" (id. Interrog. 22); (16) " each instance in which any part of Plaintiff’s electric transmission system infrastructure has been rendered inoperable due to sudden casualty during the past ten (10) years" (id. Interrog. 23); (17) " all reports, studies, assessments, laws, rules, and proposed rules in Plaintiff’s possession concerning measures taken, to be taken, or proposed to address the security of Plaintiff’s electric transmission system from natural and unnatural threats" (id. Interrog. 24); and (18) " all policies of insurance Plaintiff maintains on its electric transmission line system" (id. Interrog. 25). Much of that information, as well as the information requested in the accompanying Requests for Production, has absolutely nothing to do with just compensation for the Property at issue. As such, Defendant cannot credibly contend that Plaintiff’s allegedly deficient discovery responses somehow affected his ability to disclose his expert in a timely fashion. At a minimum, Defendant could have, and should have, provided basic expert disclosures, including his expert’s name, curriculum vitae, and prior testimony, as well as a summary of that expert’s planned opinions, and then amended his expert disclosures at a later date.
Defendant did not file his expert disclosure as required by the Scheduling Order, as amended. Federal Rule of Civil Procedure 26(a)(2) requires that a party seeking to present expert testimony make certain disclosures. Fed.R.Civ.P. 26(a)(2). Rule 26(a)(2)(D) provides, in relevant part: " A party must make these disclosures at the times and in the sequence that the court orders." Fed.R.Civ.P. 26(a)(2)(D). Here, the Court’s Scheduling Order, as amended, required Defendant to make his expert disclosures by September 25, 2017. Defendant failed to make those disclosures by the applicable deadline.
Federal Rule of Civil Procedure 37(c)(1) provides:
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney’s fees, caused by the failure;
(B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(c)(1). The Local Rules also provide:
Any party who desires to use the testimony of an expert witness shall designate the expert sufficiently early in the discovery period to permit the opposing party the opportunity to depose the expert and, if desired, to name its own expert witness sufficiently in advance of the close of discovery so that a similar discovery deposition of the second expert might also be conducted prior to the close of discovery.
Any party who does not comply with the provisions of the foregoing paragraph shall not be permitted to offer the testimony of the party’s expert, unless expressly authorized by court order based upon a showing that the failure to comply was justified.
N.D.Ga. R. 26.2C.
Here, Defendant failed to disclose his expert as required by the Court’s Scheduling Order, as amended. Defendant thus failed to comply with Rule 26(a)(2)’s requirements. He has not shown that his failure to comply was substantially justified or was harmless. As previously noted, Defendant’s interpretation of the Scheduling Order and any alleged deficiencies in Plaintiff’s discovery responses do not provide substantial justification for his failure to disclose his expert witness. At a minimum, Defendant could have, and should have, provided basic expert disclosures, including his expert’s name, curriculum vitae, prior testimony, and basic opinions. Defendant, however, failed to do so, and, to date, has yet to disclose an expert or his expert’s planned opinions in this action. Under those circumstances, Defendant has not shown substantial justification for failing to disclose his expert. Further, Defendant cannot credibly argue that his failure to disclose his expert was harmless. Under Rule 37(c)(1), the Court precludes Defendant from presenting expert testimony in this action.
Defendant also failed to comply with Local Rule 26.2C’s requirements for disclosing expert testimony, because he did not disclose expert testimony with sufficient time remaining in the discovery period to allow Plaintiff to depose any such expert. For the reasons discussed above, Defendant has not shown a substantial justification for his failure to comply with Local Rule 26.2C. Local Rule 26.2C also precludes Defendant from presenting expert testimony.
Importantly, under Local Rule 26.2C, " ‘the standard for striking untimely expert testimony is not whether the opposing party is prejudiced, but whether the proffering party’s failure to comply was justified.’ " Galack v. PTS of Am., LLC, Civil Action File No.: 4:13-CV-0288-HLM, 2015 WL 11578540, at *2 (N.D.Ga. Mar. 10, 2015) (quoting Durkin v. Platz, 920 F.Supp.2d 1316, 1328 (N.D.Ga. Jan. 30, 2013)). Thus, any alleged lack of prejudice to Plaintiff from the untimely disclosure is irrelevant for purposes of Local Rule 26.2C.
For the reasons discussed above, the Court grants Plaintiff’s Motion to Exclude Defendant’s Undisclosed Expert. Defendant may not present expert testimony at trial or at other proceedings in this action.
III. Conclusion
ACCORDINGLY, the Court GRANTS Plaintiff’s Motion to Exclude Defendant’s Undisclosed Expert [39], deems any expert witness or expert report disclosed by Defendant to be untimely, and precludes Defendant from offering expert testimony at trial or at other proceedings in this action. The Court DENIES Defendant’s Motion for Discovery [43], and DENIES AS MOOT Defendant’s Motion for Hearing to Set Status and Scheduling Conference [48].
IT IS SO ORDERED, this the 5th day of December, 2017. ORDER ON RECONSIDERATION
This case is before the Court on the Motion for Reconsideration filed by Defendant Johnny Bradley Scott (" Defendant" ) [52].
Defendant has filed a Motion for Reconsideration of the Court’s December 5, 2017, Order granting Plaintiff’s Motion to Exclude Defendant’s Undisclosed Expert Testimony, denying Defendant’s Motion to Set Status and Scheduling Conference, and denying Defendant’s Motion for Discovery. (Mot. Reconsideration (Docket Entry No. 52).) The Court finds that no response from Plaintiff is necessary, and concludes that the matter is ripe for resolution.
" In the interests of finality and conservation of scarce judicial resources, reconsideration of an order is an extraordinary remedy and is employed sparingly." Muhammad v. Option One Mortg., Bankruptcy No. 04-16354-WSS-13, Civil Action No. 09-0148-CG-M, 2014 WL 4700673, at *1 (S.D. Ala. Sept. 22, 2014) (internal quotation marks and citation omitted). " A party may move for reconsideration only when one of the following has occurred: an intervening change in controlling law, the availability of new evidence, [or] the need to correct clear error or prevent manifest injustice." Fults v. Upton, Civil Action File No. 3:09-CV-86-TWT, 2011 WL 530384, at *2 (N.D.Ga. Feb. 4, 2011) (alteration in original) (internal quotation marks and citation omitted). " [A] party may not employ a motion for reconsideration as a vehicle to present new arguments or evidence that should have been raised earlier, introduce novel legal theories, or repackage familiar arguments to test whether the Court will change its mind." Id. (internal quotation marks and citation omitted). Finally, a party cannot use a motion for reconsideration as " a vehicle to show the court how it could have done it better." Sevostiyanova v. Cobb Cnty. of Ga., Civil Action File No. 1:09-CV-2681-TWT, 2011 WL 4975016, at *2 (N.D.Ga. Oct. 18, 2011) (internal quotation marks and citation omitted).
The Court has reviewed the materials presented by Defendant, including Defendant’s brief and supporting declaration. With all due respect to Defendant and his counsel, the Court declines to reconsider the December 5, 2017, Order granting the Motion to Exclude. Defendant’s Motion either consists of an attempt to re-hash arguments that Defendant previously raised or of arguments that Defendant could have, and should have, raised in response to Plaintiff’s Motion to Exclude Undisclosed Expert Testimony. For the following reasons, this latest attempt is, frankly, too little too late.
First, Defendant’s contention that his delay was substantially justified is unpersuasive. Again, and despite Defendant’s arguments to the contrary, Defendant’s interpretation of the Scheduling Order was unreasonable. Defendant’s contention that he relied reasonably on Plaintiff’s representations concerning discovery is also not persuasive. Although Defendant contends for the first time that his counsel never saw the language in the Notice of Filing concerning the deadline for Defendant to file his expert disclosures, this is not a viable excuse. This document was electronically served on counsel, and the fact that counsel may have felt it was unimportant does not excuse counsel’s failure to review the document fully. Further, the Court stands by its opinion that many of the discovery requests at issue sought information that, frankly, is not relevant to this condemnation action.
Second, whether the failure to file expert disclosures was harmful to Plaintiff is not a relevant consideration under the Local Rules, which require that the late disclosure be substantially justified, without regard to prejudice to the opposing party. In any event, the late disclosure has prejudiced Plaintiff, who has been placed at a significant disadvantage by neither having the opportunity to review the proposed expert opinions or depose the expert.
Third, the Court is not at all convinced that this sanction will effectively result in a dismissal of this action or that the sanction is more drastic than necessary in response to the violation. Fourth, while the Court is mindful that this case belongs to Defendant and not his counsel, sanctioning Defendant’s counsel alone is not sufficient to address the concerns. The Court therefore denies the Motion for Reconsideration.
ACCORDINGLY, the Court DENIES Defendant’s Motion for Reconsideration [52].
IT IS SO ORDERED, this the 18th day of December, 2017.
In reaching this decision, the Court has not considered Plaintiff’s response to the Motion for Discovery (Resp. Mot. Discovery (Docket Entry No. 50)), which was untimely. Defendant filed his Motion on November 14, 2017, and Plaintiff’s response was due fourteen days later, or by November 28, 2017. Plaintiff did not file its response until December 1, 2017, after the deadline for responding had expired. Importantly, the three-day extension for mailing no longer applies to documents served via electronic means.