The opinion of the court was delivered by: Judge Frost
These consolidated cases are currently before the Court to determine whether some revision in the expert witness identification schedule, and some relaxation of the Court's prior orders with respect to expert witness discovery, is appropriate. For the following reasons, the Court concludes that such revisions are appropriate in light of other changes to the case schedule. Those revisions will be set forth below.
By way of background, the original schedule for this case required primary expert witnesses to be disclosed by May 3, 2005 and responsive experts to be disclosed by June 3, 2005. Some experts were identified by those dates, although no reports were exchanged at that time. Rather, the parties were engaged in a number of different discovery disputes which affected their ability to provide expert reports. Those disputes were not finally resolved until months after the expert witness identification dates had passed.
Further, after the initial case schedule was set, the parties requested that the schedule be changed and the case be managed in a different way. Although the Court ultimately refused to order a bifurcation of issues as requested, it did schedule the case for a Markman hearing which took place on February 2, 2006. The issue of claims construction was then taken under advisement, and Tdata then filed a motion for summary judgment on inequitable conduct in unenforceability of the patents. On May 3, 2006, the Court sua sponte stayed issuance of a decision on claims construction pending a determination of the summary judgment motion. Thus, much has happened to render the initial case schedule unworkable.
Acknowledging this, the parties are generally in agreement that the expert witness disclosure dates should be modified and that additional discovery from expert witnesses should be permitted by the Court. Notwithstanding that general agreement, the parties disagree on whether Tdata should be permitted to identify a new expert. On October 17, 2005, without obtaining leave of court for an extension of the existing deadline, Tdata identified an expert named Alexander Trevor. It appears that he will be a liability expert of some sort. ATP argues that nothing occurred between May 3, 2005 and October 17, 2005 which constitutes good cause to permit Tdata to identify an additional expert, and it therefore objects to Mr. Trevor as an expert in the case. Thus, the primary dispute before the Court surrounds Mr. Trevor, but the Court must also, in light of the above events and the parties' agreements, set a new schedule which will permit experts to be identified and deposed in an orderly fashion.
Fed.R.Civ.P. 16(b) requires the Court, in each civil action which is not exempt from that rule, to "enter a scheduling order that limits the time" to, inter alia, file motions, identify expert witnesses, and complete discovery. The rule further provides that "[a] schedule shall not be modified except upon a showing of good cause ...."
Although the Court has broad discretion to modify its own pretrial orders, it must be remembered that "[a]dherence to reasonable deadlines is ... critical to maintaining integrity in court proceedings," Rouse v. Farmers State Bank, 866 F.Supp. 1191, 1199 (N.D. Iowa 1994), and that pretrial scheduling orders are "the essential mechanism for cases becoming trial-ready in an efficient, just, and certain manner." Id. at 1198. In evaluating whether the party seeking modification of a pretrial scheduling order has demonstrated good cause, the Court is mindful that "[t]he party seeking an extension must show that despite due diligence it could not have reasonably met the scheduled deadlines." Deghand v. Wal-Mart Stores, 904 F.Supp. 1218, 1221 (D. Kan. 1995). The focus is primarily upon the diligence of the movant; the absence of prejudice to the opposing party is not equivalent to a showing of good cause. Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995). Of course, "[c]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Dilmer Oil Co. v. Federated Mut. Ins. Co., 986 F.Supp. 959, 980 (D.S.C. 1997). Further, although the primary focus of the inquiry is upon the moving party's diligence, the presence or absence of prejudice to the other party or parties is a factor to be considered. Inge v. Rock Financial Corp., 281 F.3d 613 (6th Cir. 2002). It is with these standards in mind that the instant motion will be decided.
Here, it is likely that Tdata could have identified Mr. Trevor or a similar expert by May 3, 2005. On the other hand, it likely could not have provided any additional details about Mr. Trevor other than his name and the general area in which he was being retained as an expert at that time. Further, the parties are in agreement that new dates for complete disclosure of expert witness opinions ought to be set and that expert discovery should take place in the future. Under these circumstances, it would appear that neither ATP nor the overall case schedule would have been any better off had Mr. Trevor been named on May 3, 2005 as opposed to having been named on October 17, 2005. Had a different liability expert simply been identified by name on the earlier date, but no report provided until later, the case would be in exactly the same posture. Consequently, considering the factors set forth above, the Court concludes that it would be an appropriate exercise of discretion to permit Tdata to name Mr. Trevor as an expert.
Obviously, the liability experts' opinions in this case will be significantly affected by the Court's ruling on the Markman issues. In order to give the parties adequate time to digest that ruling and have it factored into expert opinions, the Court sets the date for full expert disclosure under Rule 26(a)(2) to be 60 days following the issuance of the Court's decision on the Markman issues. All expert discovery shall be completed within 120 days after that decision.
Many of the issues discussed in this Opinion and Order have been raised by the parties in filings other than motions. The only motion which appears to be pending concerning this matter is Tdata's "Memorandum contra ATP's Motion for Extension to Serve Expert Report and Motion for Extension to Respond to any Newly Produced Expert Reports and Motion to Strike Expert Reports" (#169, 146). That portion of the motion which asks the Court to strike expert reports is overruled, and any other matters raised therein are addressed by this order.
Any party may, within ten (10) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.
Terence P. Kemp United States ...