United States District Court, S.D. Ohio, Eastern Division
Kimberly A. Jolson Magistrate Judge
OPINION AND ORDER
D. MORRISON UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's Motion for
Leave to Submit Expert Report Instanter and for a Brief
Continuance of the Trial Date (ECF No. 49), filed on December
27, 2019. Defendants filed their Memorandum in Opposition on
January 6, 2020 (ECF No. 66). For the reasons that follow,
Plaintiff's request is DENIED.
originally filed this action in the Perry County Court of
Common Pleas on August 25, 2014. Fourteen months into the
case, the court granted Defendants' motion to compel
discovery and ordered Plaintiff and its counsel to pay
Defendants' related attorneys' fees and costs. (Court
Orders, ECF Nos. 66-1, 66-2). Thereafter, the court denied
Plaintiff's motion for an extension of the discovery
deadline, which was filed one day before the discovery cutoff
date. Plaintiff voluntarily dismissed the action three days
October 28, 2016, Plaintiff re-filed the action and it was
subsequently removed to this Court on December 6, 2016. The
parties agreed to use the prior discovery and related matters
from the initial action in the case sub judice.
(Motion, 3, ECF No. 49). According to Plaintiff,
“[d]iscovery among the parties occurred and was
generally completed in the Initial Action.”
14, 2017, the Magistrate Judge entered an initial scheduling
order, setting a primary expert report deadline of October
16, 2017 and a fact discovery deadline of December 29, 2017.
(ECF No. 21). Following a status conference with the parties,
the Magistrate Judge modified the scheduling order to a fact
discovery deadline of January 19, 2018 and primary expert
report deadline of 30 days after the Court's ruling on
Defendants' Motion for Summary Judgment. (ECF No. 25). On
January 19, 2018, Plaintiff filed a motion to extend the fact
discovery deadline based on new information that had come to
light. The Magistrate Judge denied Plaintiff's request,
noting that Plaintiff had not been diligent in pursuing
discovery and that Plaintiff was or should have been well
aware of the new information cited since at least 2011.
(Order, 4, ECF No. 41). Notably, the Magistrate Judge also
concluded that the fact that Plaintiff obtained new
counsel in October 2017 did not amount to good
cause. (Id. at 5). Moreover, Defendants filed a
Motion for Summary Judgment on January 31, 2018.
attempt to move this case along, this Court issued a
scheduling order on September 9, 2019, setting this case for
trial on February 10, 2020. The Order articulated that
[t]he parties shall comply fully with all the requirements of
Fed.R.Civ.P. 26(a)(2), including the required disclosures at
least ninety (90) days before the trial unless an
earlier date has been set by a scheduling order issued by the
(3, ECF No. 46) (emphasis in original). As a result, the
expert disclosure deadline, including disclosure of any
expert reports, was November 12, 2019. The Court ruled on
Defendants' Motion for Summary Judgment on December 10,
2019. (ECF No. 47).
December 27, 2019, Plaintiff filed a Motion for Leave to
Submit Expert Report Instanter and for a Brief Continuance of
the Trial Date. (ECF No. 49). In its Motion, Plaintiff
requests leave to late-disclose an expert report-Valuation of
100% Interest in Common Stock as of September 30, 2011,
prepared by Brian Russell on October 13, 2017 (ECF No.
49-1)-in order to use it at the upcoming jury trial.
Plaintiff's counsel states that he inadvertently failed
to timely disclose Mr. Russell's report because he
erroneously believed it had previously been provided to
Defendants when it was prepared in October 2017. As a result,
Defendants did not receive Mr. Russell's report until
December 18, 2019. Because the report is vital to
Plaintiff's case, Plaintiff submits that leave should be
granted and a brief continuance of trial allowed to give
“Defendants the opportunity to respond to the expert
report and depose Plaintiff's expert witness or obtain
additional discovery, if desired.” (Motion, 2).
January 6, 2020, Defendants filed their Memorandum in
Opposition to Plaintiff's Motion. (ECF No. 66).
Defendants argue that Plaintiff's expert report should be
excluded at trial because the late disclosure was neither
harmless nor justified. (Mem. Opp., 3).
Civ. P. 26(a)(2)(A) provides that “a party must
disclose to the other parties the identify of any witness it
may use at trial to present evidence under Federal Rule of
Evidence 702, 703, or 705.” Additionally, under the
same Rule, “this disclosure must be accompanied by a
written report . . . if the witness is one retained or
specially employed to provide expert testimony in the
case.” (Id.). “Absent a stipulation or a
court order, the disclosures must be made . . . at least 90
days before the date set for trial.” Id.
26(a)(2)(D)(i). “If a party fails to provide
information or identify a witness as required by Rule 26(a) .
. . the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a