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Telepak Networks, Inc. v. City of Memphis

United States District Court, W.D. Tennessee, Western Division

November 6, 2014

TELEPAK NETWORKS, INC. d/b/a C SPIRE FIBER, Plaintiff,
v.
THE CITY OF MEMPHIS. Defendant.

ORDER DENYING TELEPAK'S MOTION TO EXCLUDE DEFENDANT'S PROPOSED REBUTTAL EXPERT TESTIMONY

CHARMIANE G. CLAXTON, Magistrate Judge.

Before the Court, by way of Order of Reference (D.E. # 105), is the motion of Plaintiff, Telepak Network's Inc., to exclude the proposed rebuttal expert testimony disclosed by Defendant, the City of Memphis on September 29, 2014 (D.E. # 104). Defendant filed a response opposing the motion (D.E. # 106). The Court held set a hearing on the motion (D.E. # 108), which was held on October 30, 2014. Based on the motion, response, argument of counsel and the record in this cause, the Court finds that the Motion is not well taken and is DENIED.

Background

A scheduling order was entered in the case on March 11, 2014 and provided the following deadlines: Initial disclosures deadline 03/25/2014; joining parties/amended pleadings due 04/10/14 for Plaintiff, 04/17/14 for Defendant; Defendants renewed motion to dismiss is due 30 days after Plaintiff files an amended pleading; expert disclosures due 07/31/14; fact discovery deadline 07/15/14; all discovery deadline 08/29/14; mediation deadline 08/29/14; motions to exclude experts/ Daubert motions deadline 09/15/14; dispositive motions deadline 09/15/14. Non-Jury Trial set Monday, 12/15/14; Pretrial Conference set Friday, 12/05/2014. With respect to expert proof, the original scheduling order provided an expert disclosure deadline of July 31, 2014 for both parties and an expert discovery deadline of August 29, 2014.

On July 23, 2014, an amended scheduling order was entered, at the request of Plaintiff, changing the discovery deadlines as follows: fact discovery deadline on 08/15/14; expert disclosures due 08/29/14; all discovery deadline on 09/15/14; mediation deadline on 09/15/14; dispositive motion deadline on 09/19/14; responses due 10/17/14; replies due 10/27/14. Both the original and amended scheduling orders provide for expert disclosures by Plaintiff and Defendant on the same date and neither contain any to reference rebuttal expert disclosures. Both Plaintiff and Defendant disclosed their case-in-chief experts on August 29, 2014. Defendant including the following statement in its August 29, 2014 disclosure:

In accordance with Federal Rule of Civil Procedure, 26 (a) (2) (D) (ii), the City will supplement the instant disclosure with any additional evidence, opinions or witnesses intended solely to rebut evidence on a subject matter identified by Telepak Networks, Inc. under Rule 26 (a)(2) (B) or (C).

(D.E. #106-1). Similarly, both of Plaintiff's expert reports contained a statement that the expert intended to supplement their reports with rebuttal opinions. At page 3, paragraph 9 of Mr. Don Wood's report, he states: "I will also provide opinions responsive to any disclosures and testimony offered by experts for the City at the appropriate time." At page 6 of Mr. Michael Stone's report he states: "I would respectfully reserve the right to supplement this report following my review of the City's expert reports."

On September 29, 2014, Defendant served its Disclosure of Rebuttal Experts pursuant to Rule 26 (a)(2), which identified (1) Ed Whitelaw, Ph.D. as a rebuttal expert whose testimony the City expected to present solely to rebut or contradict the proposed testimony of Plaintiff's expert Don Wood; (2) Robert Knecht as a rebuttal expert whose testimony the City expected to present solely to rebut or contradict the opinions and evidence identified by Telepak specific portions of the expert reports of Don J. Wood and Michael Stone; and (3) Leon Pattman as a rebuttal expert whose testimony the City expected to present solely to rebut or contradict the opinions and evidence identified by Telepak specific portions of the expert reports of Don J. Wood and Michael Stone. As required by Federal Rule of Civil Procedure 26(a)(2)(B), the City also provided the signed report of Dr. Whitelaw.

Plaintiff has moved the Court to strike the City's September 29, 2014 disclosures and to exclude the City's proposed rebuttal testimony.

Applicable Law

On the issue of the timing of expert disclosures, Rule 26 (a)(2)(D)(ii) of the Federal Rules of Civil Procedure provides:

(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:
...
(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 ...

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