2:10-cv-01250
E.D. Cal.Nov 2, 2012Background
- Plaintiff Edwards alleges sex harassment, hostile environment, gender discrimination, failure to prevent harassment, and IIED against Nike Retail Services and Ryan Taylor.
- Defendants moved to strike Edwards’ expert disclosures under Rule 26(a)(2)(B) and 37(c)(1) due to missing reports.
- Edwards disclosed three experts on June 1, 2012 without accompanying reports and did not provide subject-matter details.
- The court had entered and repeatedly extended scheduling orders for expert disclosures, with a November 16, 2012 completion deadline.
- Mediation occurred around October 2012; parties later disputed cooperation and timing of expert reports.
- The court granted in part and denied in part the motions, concluding some disclosures were stricken while others could proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Edwards’ expert disclosures should be stricken under Rule 37(c)(1) for failure to provide 26(a)(2)(B) reports | Edwards seeks to strike defendants’ disclosures only if Edwards’ are also struck; no prejudice | Non-disclosure of reports warrants exclusion under Rule 37(c)(1) | Pratt, Johnson, and Kirz stricken; Policar allowed; Leith not excluded for harmless lateness |
| Whether late medical expert reports by defendants (Dr. Leith, Dr. Berg) were harmless and justify no exclusion | Late reports harmed ability to depose and prepare | Late reports were necessary due to IME scheduling difficulties | Late medical reports deemed harmless; Leith deposition allowed; no exclusion as to Leith; Berg addressed similarly; subject to deposition before deadline |
| Whether the court should compel mediation or further mediation efforts | Parties had agreed to mediation and seek court-ordered completion | Parties privately pursued mediation; no court order required | Mediation order denied; court declined to compel mediation |
Key Cases Cited
- Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011) (harshness of exclusionary sanction; burden to prove harmlessness on movant)
- Yeti By Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9th Cir. 2001) (exclusion for failure to disclose under Rule 26(a); self-executing sanction)