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Surbella v. Foley

August 10, 2006


The opinion of the court was delivered by: Terence P. Kemp United States Magistrate Judge



This case is before the Court to consider the motion of plaintiffs to extend the expert witness disclosure deadline, which is currently March 1, 2006. Opposing and reply memoranda have been filed. For the following reasons, the Court will deny the motion.

By way of procedural background, the parties conducted their Rule 26(f) conference in this case on November 29, 2005 and filed their report with the Court the same day. The Court then entered a pretrial order on December 9, 2005, establishing, among other dates, March 1, 2006 as the date for plaintiffs to identify their expert witness. That date was the date recommended in the Rule 26(f) report. Plaintiffs did not disclose any expert witnesses by that date.

On July 17, 2006, plaintiffs filed their motion for an extension of the March 1, 2006 deadline. In their motion, they contended that they had not yet been given access to certain software being used by the defendants and that they needed access to the software both in order to determine whether it was identical to their software program and to retain an expert to testify about the results of that analysis. In their motion, they argued only that no party will be prejudiced by the granting of the motion, and did not address any reason for the delay other than that they "have not been given access" to the defendants' software.

Defendant Foley filed a memorandum in opposition to the motion in which he argues that the justification given for the delay - if, in fact, plaintiffs' lack of access to defendants' software is that justification - is specious because plaintiffs never requested access to that software. Mr. Foley asserts that he was under no duty to provide plaintiffs with a copy of the software as part of his Rule 26(a)(1) disclosures and that, although plaintiffs served written discovery on him on June 20, 2006, that written discovery does not contain a request for the software at issue. As a result, Mr. Foley argues that plaintiffs have simply failed to establish that they acted with due diligence in attempting to meet the March 1, 2006 deadline, and the Court should therefore not extend the date.

In their reply memorandum, plaintiffs do not dispute that the first written discovery that they served is dated June 20, 2006. They argue, somewhat obliquely, that they should have received the software as part of the Rule 26(a)(1) disclosures, and they also argue that a catch-all document request for all documents and tangible things that the defendants intend to offer at trial, which was made as part of the June 20, 2006 written discovery, covers the software in question. Consequently, they assert that the deadline should be extended due to defendants' non-compliance with their obligations under the Federal Rules of Civil Procedure.

First, the Court notes that defendants argue, incorrectly, that because no Rule 26(f) conference was ever held, they were never under an obligation to make disclosures under Rule 26(a)(1). The Court's record clearly reflects that the parties met telephonically on November 29, 2005 for purposes of preparing the Rule 26(f) report. That meeting triggered the obligation to provide Rule 26(a)(1) disclosures. Defendants appear to concede that they did not provide those disclosures within the time allowed under Rule 26 if, in fact, a Rule 26(f) conference was held in November of 2005. Thus, the Court turns next to the question of whether plaintiff would have received the software in question had defendants complied with their Rule 26(a)(1) disclosure requirements.

Rule 26(a)(1) does not obligate a party to produce any documents. Rather, the portion of the Rule which deals with documents requires the disclosing party to provide either a copy of all documents in the disclosing parties' possession which the disclosing party may use to support its claims or defenses or to provide a description by category and location of those documents. Had defendants simply provided a description of the documents, it would have been incumbent upon plaintiffs to make a formal request for inspection or production of the documents. Plaintiffs do not argue, and apparently cannot credibly argue, that they were unaware in December, 2005 that defendants possessed certain software which plaintiffs claim to be infringing. As a result, with or without the disclosures, plaintiffs were in a position to request copies of the software immediately after the Rule 26(f) meeting of the parties. Thus, their assertion that had defendants made appropriate Rule 26(a)(1) disclosures, they would have been able to meet the expert disclosure deadline because they would have received copies of the software as part of defendants' initial disclosures, is simply incorrect.

Further, the Court is not persuaded that plaintiffs have yet made a proper request for the software. It seems unusual that if the software plays a central role in this case, plaintiffs' document request would not ask for the software specifically other than in a generic request for trial exhibits. It is not clear to the Court that defendants would use the software at trial as an exhibit. Further, defendants may not yet have decided what documents to be used at trial. In any event, the document request was not served until June 20, 2006, and required a response no earlier than July 20, 2006, more than four months after the date for disclosing experts, and additional months after the date when production of the software would have enabled plaintiffs to meet the expert disclosure date. Consequently, the fact that plaintiffs may have belatedly requested production of the software on June 20, 2006 is irrelevant to the question of whether they exercised the appropriate measure of diligence in meeting the March 1, 2006 deadline. Clearly, defendants cannot be faulted for not having produced the documents prior to March 1, 2006 because there was no document request pending which required such production.

Plaintiffs, although they cite no case law, are in essence arguing that the Court should extend the dates set in a pretrial order issued pursuant to Fed. R. Civ. P. 16(b). There are clear legal standards for entering such an order, and they are set forth below.

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, plaintiffs have argued only that an extension of the expert witness deadline will not prejudice the defendants. As discussed above, the argument that defendants' failure to make timely Rule 26(a)(1) disclosures led to plaintiffs' inability to meet the expert disclosure deadline is both factually and legally unsupported. Under these circumstances, that Court simply cannot determine that plaintiffs were unable to meet the March 1, 2006 date even though they exercised due diligence in attempting to do so. Due diligence would have consisted of making a document request for the software promptly after the Rule 26(f) conference; asking the Court to compel Rule 26(a)(1) disclosures from defendants if plaintiffs believed that such disclosures would result in their obtaining a copy of the software; or filing a motion for an extension of the expert disclosure date well prior to March 1, 2006 in order to allow plaintiffs to make a document request, obtain the software, and obtain the expert analysis which would then be disclosed in their expert reports. Not only did they do none of these things, they delayed in filing any discovery request directed to the software until June 20, 2006, and any motion to extend the deadline until July 17, 2006, without any explanation ...

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