United States District Court, D. New Mexico
ORDER GRANTING MOTION TO COMPEL PLAINTIFFS TO AMEND
EXPERT WITNESS DISCLOSURE
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendants Board of
Commissioners for the County of Socorro and Sheriff William
Armijo's (“County Defendants”) Motion
to Compel Plaintiffs to Amend its Expert Witness
Disclosure (the “Motion”), (Doc. 124), filed
September 6, 2017; Plaintiff's Response to the County
Defendants' Motion to Compel Plaintiffs to Amend
its Expert Witness Disclosure (the
“Response”), (Doc. 126), filed September 14,
2017; and the County Defendants' Reply in Support of
Motion to Compel Plaintiffs to Amend Expert Witness
Disclosure (the “Reply”), (Doc. 127), filed
September 21, 2017. After reviewing the parties' filings
and the relevant law, the Court finds that the Motion is
well-taken and should be GRANTED.
Motion, County Defendants argue that Plaintiff's expert
report for Walter K. Lierman, Ph.D., is deficient because it
does not include a complete list of case names in which Dr.
Lierman has testified over the last four years. (Doc. 124 at
2). Specifically, the list does not include all the courts in
which Dr. Lierman testified or all the case numbers as
required by Fed.R.Civ.P. Rule 26. Id. at 2-3. County
Defendants offered Plaintiff extensions, sent a good faith
letter, and allowed Plaintiff to supplement his report.
Id. County Defendants argue they will be prejudiced
in their upcoming deposition of Dr. Lierman if they do not
receive the case names, courts where the testimony occurred,
case numbers, and whether the testimony was given at a
deposition, trial, or both, for all cases in which Dr.
Lierman testified in the last four years. Id. at 5-6
(citing Franklin v. U.S., CV No. 12-1167 KBM/CEG,
2013 WL 11336865, at *2 (D.N.M. Dec. 18, 2013)).
first responds that because the Motion does not include a
good-faith request for Plaintiff's concurrence, the
Motion should be denied. (Doc. 126 at 3) (citing
D.N.M.LR-Civ. 7.1). On the merits, Plaintiff states Dr.
Lierman does not possess the requested information and that
Plaintiff and Dr. Lierman cannot be compelled to produce
information they do not possess. Id. at 3. Further,
Plaintiff argues, he conducted an extensive search for the
information requested by the County Defendants and was unable
to find it; thus, Plaintiff should not be compelled to
produce the information. Id. at 4. Finally,
Plaintiff states he will update Dr. Lierman's resume with
three more case numbers, attempt to find the information
again, and provide County Defendants with the names of the
attorneys Dr. Lierman worked with so County Defendants can
contact those attorneys and obtain the information
reply, the County Defendants dispute that their Motion does
not comply with D.N.M.LR-Civ. 7.1, as the Motion includes how
County Defendants attempted to avoid filing the Motion. (Doc.
127 at 2-3). County Defendants also argue that Dr.
Lierman's testimony should be excluded for
Plaintiff's failure to disclose the requested
information. Id. at 3-7. County Defendants argue
Plaintiff's failure is not substantially justified or
harmless, therefore Dr. Lierman should be barred as an expert
witness. Id. If Plaintiff is allowed a further
opportunity to comply with Rule 26, they ask that Plaintiff
be given no more than three business days; otherwise County
Defendants will not have sufficient time to prepare for Dr.
Lierman's deposition on October 3, 2017. Id. at
Failure to include a good-faith request for
although County Defendants' Motion describes their
efforts to avoid having to file the Motion, it does not
appear to include a “good-faith request for
concurrence, ” as required by local rule. D.N.M.LR-Civ.
7.1(a). However, the rule provides that a Court
“may” deny a motion without a recitation, not
that it must. Id. County Defendants have stated
their efforts to avoid having to file the Motion, including
offering extensions and an opportunity to supplement.
Accordingly, the Court will not deny the Motion for
Plaintiff's failure to include a good-faith request for
Federal Rules of Civil Procedure require parties to disclose
a written report prepared and signed by a witness who will
provide expert testimony. Fed.R.Civ.P. 26(a)(2)(B). This
report must include “a list of all other cases in
which, during the previous 4 years, the witness testified as
an expert at trial or by deposition.” Id.
26(a)(2)(B)(v). This list must include, “at a minimum,
” the courts, names of the parties, case numbers, and
whether the testimony was at trial or by deposition.
Nguyen v. IBP, Inc., 162 F.R.D. 675, 682 (D. Kan.
1995); see Franklin, 2013 WL 11336865, at *2. An
expert's failure to maintain records with the necessary
information is no excuse; “[a] party may not simply
retain an expert and then make whatever disclosures the
expert is willing or able to make notwithstanding the known
requirements of Rule 26.” Id. at 681. Further,
the rule does not “contemplate” the burden
shifting from the disclosing party to the discovering party.
Id. at 682.
the rule's requirements, the Court finds that Plaintiff
must disclose a full list of the cases in which Dr. Lierman
testified in the last four years, including the courts in
which the testimony occurred, the names of the parties, the
case numbers, and whether the testimony was at trial,
deposition, or both. Although Plaintiff states Dr. Lierman
does not have the required information and has offered to
give County Defendants information so they may research
themselves, that is not enough to comply with the rule.
See Id. The Court finds it would not be unreasonable
for Plaintiff to contact the attorneys Dr. Lierman worked
with himself. Therefore, the Court will order Plaintiff to
provide the remaining case names, numbers, and courts within
three business days so County Defendants may adequately
prepare for Dr. Lierman's deposition.
Request to exclude Dr. Lierman
County Defendants' alternative request that the Court bar
Dr. Lierman's testimony, County Defendants' Motion
does argue that Dr. Lierman should be excluded if Plaintiff
does not comply with Rule 26. The Motion only argues for and
asks that the Court compel Plaintiff to amend his expert
witness disclosure with the complete case name, number, and
court where the testimony occurred. (Doc. 124 at 7). County
Defendants first argue that Dr. Lierman should be excluded in
their Reply. Arguments first raised in replies are not
properly before the Court. See Gutierrez v. ...