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Array Technologies, Inc. v. Mitchell

United States District Court, D. New Mexico

December 13, 2019

ARRAY TECHNOLOGIES, INC., Plaintiff,
v.
COLIN MITCHELL, an individual; NEXTRACKER, a Delaware corporation; MARCO GARCIA, an individual; DANIEL S. SHUGAR, an individual; SCOTT GRAYBEAL, an individual; and FLEXTRONICS INTERNATIONAL U.S.A., INC., a California corporation, Defendants.

          ORDER ON MOTION

          Laura Fashing, United States Magistrate Judge.

         THIS MATTER comes before the Court on defendants NEXTracker, Marco Garcia, Daniel S. Shugar, Scott Graybeal, and Flextronics International U.S.A., Inc.'s (collectively “defendants”) Motion to Exclude Unauthorized Supplemental Expert Reports of Clarke B. Nelson and Robert E. Parkins, filed July 23, 2019. Docs. 429, 430 (sealed). Plaintiff filed its response on August 6, 2019. Doc. 439. Defendants filed their reply on August 20, 2019. Doc. 468. The Court held a telephonic hearing on the motion on November 21, 2019. Doc. 521. Having read the submissions of the parties and heard the argument of counsel, the Court finds that defendants' motion is not well taken and will DENY it.

         In their motion, defendants contend that the rebuttal expert reports by Clarke B. Nelson and Robert E. Parkins were disclosed in violation of the Court's scheduling order. Doc. 430 at 3. Defendants further contend that the rebuttal reports submitted by Nelson and Parkins are not true “rebuttal reports, ” but instead are “supplemental reports” and should be excluded from evidence along with any testimony regarding the same. Doc. 430 at 3, 27. In this opinion, I will not be determining whether the reports are true “rebuttal” reports, or whether they contain supplemental information outside the scope of a rebuttal report. Judge Herrera, who will preside over the trial in this case, will make all decisions relating to the exclusion of evidence, including whether to exclude the rebuttal reports, or expert testimony based on those reports, because they contain supplemental information beyond the scope of a true rebuttal report. But because the defendants argue that Nelson's and Parkins' rebuttal reports violate my scheduling order, I will rule on that issue alone.

         I. Background Facts.

         This Court issued its original scheduling order on July 5, 2017. Doc. 39. In that order plaintiff's and defendants' expert disclosures were both due on January 5, 2018, id. at 2, which was consistent with what the parties had requested in their joint status report and provisional discovery plan, see Doc. 37 at 9. The scheduling order deadlines were subsequently extended several times. See Docs. 54, 56, 82, 119, 120, 154, 304, 398. In the orders extending the deadlines prior to March 28, 2018, the parties agreed that the expert disclosure deadlines would remain the same for plaintiff and defendants. Docs. 54, 56, 82. These orders did not mention rebuttal reports, which, in the Court's view, meant that the time to disclose rebuttal expert testimony was governed entirely by operation of Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure. But the motion to extend the deadlines that was filed on March 28, 2018, changed the nomenclature from the parties simultaneously disclosing expert reports to the parties requesting separate dates for “opening expert reports” and “rebuttal expert reports.” Doc. 117. The parties stated that they had “agreed to extend and reset the deadlines in this matter, including trial, by approximately 3.5 months, as set forth in the table below.”

Event

Current Deadline

Parties Agreed Upon Proposal

Fact discovery deadline

May 4, 2018

August 24, 2018

Motions related to fact discovery

May 25, 2018

September 14, 2018

Plaintiff's Expert Disclosure

June 8, 2018

September 21, 2018 (Opening Expert Reports)

Defendants' Expert Disclosure

June 8, 2018

October 12, 2018 (Rebuttal Expert Reports)

Expert Discovery Deadline

July 9, 2018

November 2, 2018

Motions related to expert discovery

July 27, 2018

November 16, 2018

Pretrial motion (other than discovery)

August 10, 2018

November 30, 2018

Plaintiff Pretrial Order

September 21, 2018

January 11, 2019

Defendant Pretrial Order

September 28, 2018

January 18, 2019

Pretrial Conference

October 9, 2018

January 29, 2019 or as soon thereafter as the Court is able

Call of Calendar

October 25, 2018

February 14, 2019 or as soon thereafter as the Court is able

Trial

November 5, 2018

February 25, 2019 or as soon thereafter as the Court is able

         Doc. 117 at 2.

         The Court adopted this nomenclature in granting the parties' request for an extension. Doc. 119. The separate dates did not distinguish between “plaintiff” or “defendants, ” but instead referred to “opening expert reports” and “rebuttal expert reports.” Id. At the hearing on November 21, 2019, the parties explained that the change in nomenclature was based on their understanding that each party would be providing an opening expert report for the claims or affirmative defenses on which they had the burden of proof at trial. Each party then would have the opportunity to provide a rebuttal report in response to the other side's opening expert reports.

         In the operative scheduling order, the deadline for opening expert reports was May 10, 2019. Doc. 398. Plaintiff submitted opening expert reports from Nelson and Parkins. Defendants did not submit opening expert reports; instead, they submitted their expert reports (from Christopher A. Vellturo and Michael Joseph Stern) on June 7 and 8, 2019, respectively. Doc. 439 at 3. Within 30 days of receiving defendants' expert reports, plaintiff submitted rebuttal reports from Nelson and Parkins. Defendants now argue that the rebuttal reports were not authorized by the scheduling order and are untimely. I find that the rebuttal reports submitted by Nelson and Parkins were timely under Federal Rule of Civil Procedure 26.

         II. Discussion

         Federal Rule of Civil Procedure 26 governs the time to disclose expert testimony and states:

(D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:
(i) at least 90 days before the date set for trial or for the case to be ready for trial; or
(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days ...

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