The opinion of the court was delivered by: Curtis L. Collier Chief United States District Judge
Chief Judge Curtis L. Collier
Before the Court is Plaintiffs' motions to continue the Daubert hearing and the trial date (Court File No. 421), and to vacate the Daubert briefing schedule (Court File No. 422). The Court also considers Defendants' opposition to these motions (Court File Nos. 424, 426). The Court DENIES Plaintiffs' motion to continue the Daubert hearing and trial date, and DENIES Plaintiffs' motion to vacate the Daubert briefing schedule. The Court will allow Plaintiffs to file responses to Defendants' Daubert motions seeking to exclude the testimony of Eric Posner, George Borjas, and Michael Cutler (Court File Nos. 411, 412, 413) on or before Friday, November 2, 2007.
Plaintiffs seek to delay (1) the Daubert hearing because Plaintiffs are unfairly prejudiced by the failure of the Department of Homeland Security (DHS) to provide immigration records for ninety-one people; and, (2) the trial date because the class notice has not yet been approved and distributed, so class members will not have adequate time to opt-out prior to trial (Court File No. 421). Plaintiff also seeks to vacate the Daubert briefing schedule, based upon its motion to delay the Daubert hearing (Court File No. 422).
I. Immigration Records from DHS
Plaintiffs argue they will be unfairly prejudiced if they do not receive the ninety-one immigration files from the DHS because the documents are required to "corroborate" the opinion of Michael Cutler, Plaintiffs' immigration expert (Court File No. 421, p. 2). This Court cannot agree. The overarching subject of Federal Rule of Evidence 702 is "the scientific validity and thus the evidentiary relevance and reliability of the principles that underlie the proposed submission. The focus, of course, must be solely the principles and methodology, not on the conclusions that they generate." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594-95 (1993). Plaintiffs have provided no explanation how the files can "corroborate" his methodology, which has already been provided to the Court for consideration. The files can only show whether Mr. Cutler is correct in his conclusions.*fn1 This Court must consider whether Mr. Culter's "testimony is the product of reliable principles and methods," not merely whether Mr. Cutler may have been correct in a specific number of instances. Fed.R.Evid. 702(2). Plaintiffs are not prejudiced in the Daubert hearing of Mr. Cutler without the ninety-one immigration files.
Even if Plaintiffs were able to use the documents to somehow prove the scientific reliability of Mr. Cutler's method, refusing to delay the Daubert hearing would not be unfairly prejudicial to Plaintiffs. On February 9, 2007, the Daubert hearing was originally scheduled for October 15, 2007; it has since been delayed until November 7-8, 2007 (Court File No. 241). Plaintiffs had ample opportunity to collect documents necessary to prepare for the hearing. Instead, Plaintiffs waited until September 24, 2007 to issue a subpoena for the ninety-one immigration files from the DHS, and filed in the U.S. District Court for the District of Columbia on October 24, 2007 to enforce the subpoena (Court File No. 421, p. 2, n. 2).*fn2 Plaintiffs have provided no reason for their delay in seeking these immigration files to warrant a delay in the Daubert hearing, and the Court knows of none.
Since the ninety-one immigration files are not relevant to the Daubert hearing concerning Mr. Cutler, and alternatively, since Plaintiffs chose to only recently seek those records, the Court DENIES Plaintiffs' motion to delay the Daubert hearing.
II. Approval of Class Notice
Plaintiffs argue the March 3, 2008 trial does not permit adequate time for class members to opt-out of the litigation, as the Court has not yet approved the language to be used in the distribution of class notice (Court File No. 421, p. 2). Plaintiffs have provided no specific reason why four months will not be adequate time for the resolution of this issue. Without "a showing of good cause," this Court will not delay the trial. See Fed.R.Civ.P. 16(b).
The Court is more susceptible to accommodating litigants who file timely motions for delay.*fn3 If Plaintiffs felt four months was an inadequate amount of time, the appropriate response would be to inform the Court of this concern before only four months remained. Plaintiff could have simply telephoned the Court to inquire when a decision would be made, and expressed their concerns. Plaintiffs could have filed a motion and informed the Court they would either need the language by a specific date, or would need a later trial date. Instead, Plaintiffs only now raise their concern in an attempt to delay the litigation generally.
Furthermore, Defendants would be significantly prejudiced were they to require new counsel at this point in the litigation, and Defendants' counsel would be unable to reschedule the trial within the next year (Court File No. 424, p. 6-7). Therefore, the Court DENIES Plaintiffs' motion to delay the trial.
For the foregoing reasons, this Court DENIES Plaintiffs' motion to continue the Daubert hearing and the trial date. For the same reasons, this Court DENIES Plaintiffs' ...