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Lightfoot v. Georgia-Pacific Wood Products LLC

United States District Court, E.D. North Carolina, Southern Division

November 2, 2017

CHRISTOPHER LIGHTFOOT, Plaintiff,
v.
GEORGIA-PACIFIC WOOD PRODUCTS LLC, et al., Defendants.

          ORDER

          Robert B. Jones, Jr. United States Magistrate Judge

         This matter comes before the court on Plaintiff Christopher Lightfoot's ("Plaintiff) Motion to Enforce Case Management Order pursuant to Rule 16(f) of the Federal Rules of Civil Procedure [DE-99] and Georgia-Pacific Wood Products LLC's ("Defendant") Motion to Strike Supplemental Expert Report [DE-108]. In his motion, filed May 31, 2017, Plaintiff requests that the court exclude 13 witnesses disclosed by Defendant in its Second Supplemental Disclosures served on April 19, 2017, and one additional witness disclosed in Defendant's Third Supplemental Disclosures served on May 26, 2017. Id. On May 31, 2017, Defendant filed a Motion to Strike Plaintiffs Motion, arguing Plaintiffs motion failed to comply with Local Civil Rule 7.1(c)(2) and Section II.D. of the Case Management Order [DE-101], and on June 9, 2017, Plaintiff filed a response in opposition to Defendant's Motion to Strike Plaintiffs Motion [DE-103]. On June 14, 2017, Defendant filed a response in opposition to Plaintiffs Motion to Enforce Case Management Order. [DE-105]. On June 23, 2017, Defendant filed a Motion to Strike Supplemental Expert Report [DE-108], and defendants Weyerhaeuser Company and Weyerhaeuser NR Company filed a motion to join Defendant's Motion to Strike Supplemental Expert Report [DE-110]. In its motion, Defendant requests that the court strike the June 22, 2017 Supplemental Expert Report of Dr. Rachael Jones pursuant to Section I.I. of the Case Management Order. On July 7, 2017, Plaintiff filed a response in opposition to Defendant's Motion to Strike Supplemental Expert Report. [DE-113]. All motions have been fully briefed or the time for filing responsive briefing has expired and are thus ripe for decision. For the reasons that follow, Plaintiffs Motion to Enforce Case Management Order [DE-99] is allowed; Defendant's Motion to Strike Plaintiffs Motion [DE-101] is denied; Defendant's Motion to Strike Supplemental Expert Report [DE-108] is denied; and defendants Weyerhaeuser Company and Weyerhaeuser NR Company's Motion to Join Defendant's Motion to Strike Supplemental Expert Report [DE-110] is allowed.

         I. DISCUSSION

         A. Plaintiffs Motion to Enforce Case Management Orders

         On September 27, 2016, the court entered its Case Management Order. [DE-76]. The Case Management Order provided that, "C. All discovery, including expert discovery, shall be commenced or served in time to be completed by September 1, 2017. Fact discovery must be completed by March 1, 2017." [DE-76]. It also provided that,

"J. Supplementations of disclosures under Federal Rule of Civil Procedure 26(e) shall be served at such times and under such circumstances as required by that rule. In addition, such supplemental disclosures shall be served by January 20, 2017. The supplemental disclosures served 40 days before the deadline for completion of fact discovery must identify the universe of all witnesses and exhibits that probably or even might be used at trial other than solely for impeachment. The rationale for the mandatory supplemental disclosures 40 days before the discovery deadline is to put opposing counsel in a realistic position to make strategic, tactical, and economic judgments about whether to take a particular deposition (or pursue follow-up 'written' discovery) concerning a witness or exhibit disclosed by another party before the time allowed for discovery expires.

Id. The Case Management Order was amended on March 1, 2017, extending the fact discovery deadline to May 1, 2017, and leaving unchanged the remaining case deadlines in the order.[1][DE-89]. Accordingly, the amended deadline for supplementations of disclosures was March 22, 2017-forty days before the May 1, 2017 amended fact discovery deadline. Defendant served its Second Supplemental Disclosure on April 19, 2017, 28 days after the deadline for supplementations of disclosures. Pl.'s Mot. [DE-99] at 1. Defendant's Second Supplemental Disclosure listed 13 additional witnesses who were current or former employees of Defendant and subsidiary companies, with whom Defendant's designated 30(b)(6) representative had consulted in preparation for his March 29, 2017 30(b)(6) deposition. Id. at 1-2. Defendant served its Third Supplemental Disclosure on May 26, 2017, 65 days after the deadline for supplementations of disclosures. Id. at 2. Defendant's Third Supplemental Disclosure listed one additional witness, who is also a former employee of Defendant. Id.

         Plaintiff asserts that, pursuant to Rule 16(f)(1)(C), the court should strike the 14 untimely-disclosed witnesses contained in Defendant's Second and Third Supplemental Disclosures. In the alternative, Plaintiff requests that, if Defendant attempts to conduct a de bene esse deposition of Stewart Holm, the witness disclosed in Defendant's Third Supplemental Disclosure, that Plaintiff should be allowed to conduct a discovery deposition at least seven days ahead of the de bene esse deposition.

         Under Rule 16(f), the court may issue "any just order, " including one imposing sanctions provided for in Rule 37(b)(2)(A)(ii)-(vii). The sanctions provided for in that rule include: (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; and (iii) striking pleadings in whole or in part. Fed.R.Civ.P. 37(b)(2)(A)(ii)-(iii). The primary focus of the Rule 16(f) analysis is "whether [the disobedient party] has shown good cause for its failure to timely disclose." SMD Software, Inc. v. EMove, Inc., No. 5:08-CV-403-FL, 2013 WL 5592808, at *4 (E.D. N.C. Oct. 10, 2013) (quoting Aveka LLC v. Mizuno Corp., 212 F.R.D. 306, 309 (M.D. N.C. 2002)).

         Defendant responded to Plaintiffs motion in two ways: first moving to strike the motion for failure to comply with Local Rule 7.1(c)(2) and Section II.D. of the Case Management Order, arguing that Plaintiffs motion was substantively a motion to compel deposition [DE-101]; and second opposing the motion on the merits [DE-105]. The court denies Defendant's motion to strike Plaintiffs motion. Plaintiffs motion is not substantively a motion to compel deposition, but rather a motion to enforce the Case Management Order and strike the untimely disclosures. As an alternative form of relief, Plaintiff requested that the court allow him to conduct a factual deposition of Stewart Holm if Defendant attempts to conduct a de bene esse deposition. As such, there is no merit to Defendant's Motion to Strike Plaintiffs Motion, and it is accordingly denied.

         In its opposition to Plaintiffs motion, Defendant provides four reasons its supplemental disclosures should not be stricken. Def.'s Resp. Opp. [DE-105]. First, Defendant contends that the supplemental disclosures were served within the discovery period and long before trial, and therefore Plaintiff had sufficient time to depose any additional witnesses. Id. at 1. Defendant states that it presently only intends to call, at most, one of the newly-disclosed witnesses at trial. Id. Second, Defendant contends that good cause exists to allow the supplemental disclosures, arguing that Plaintiffs "novel legal theory, a decades-old relevant time period, and Plaintiffs failure to articulate a clear theory of liability as to [Defendant]" justifies the untimely disclosures. Id. Third, Defendant contends that Plaintiff is still in the process of supplementing its own discovery and disclosures, "which demonstrates the fluid nature of this case." Id. at 2. Fourth, Defendant again asserts that Plaintiffs motion should be stricken for failure to comply with Local Civil Rule 7.1(c)(2) and Section II.D. of the Case Management Order. Id.

         None of Defendant's reasons show good cause for its failure to timely disclose the additional fourteen witnesses. Defendant's reasons ignore the District Court's Case Management Order, as well as the specific rationale provided in the Case Management Order for the supplemental disclosures 40-day deadline. [DE-76]. The Case Management Order provides that,

The rationale for the mandatory supplemental disclosures 40 days before the disclosure deadline is to put opposing counsel in a realistic position to make strategic, tactical, and economic judgments about whether to take a particular deposition concerning a whiteness or exhibit disclosed by another party before the time allowed for discovery expires."

Id. Defendant's argument that good cause exists due to the complexity and duration of the relevant time period of Plaintiff s case is insufficient. Defendant's explanation for the untimely disclosures is that "Plaintiff refused to provide any substantive response to [its] interrogatories seeking the factual basis that [Defendant] was negligent or aware that the wood products could cause cancer" and thus its untimeliness "was necessitated by Plaintiffs late development of his case." Def.'s Resp. Opp. [DE-105] at 7. However, Defendant failed to file a motion to dismiss pursuant to Rule 12 or a motion to compel discovery pursuant to Rule 37. Accordingly, Defendant's justification for untimely disclosures is not sufficient to show good cause. Defendant's argument regarding the fluidity of this case has no bearing when there is a clear Case Management Order setting forth the relevant discovery deadlines. The court can only deviate from those clear deadlines upon a showing of good cause. Fed.R.Civ.P. 16(b)(4); SeeVelasquez v. Salsas & Beer Restaurant, Inc., No. 5:15-CV-146-D, 2016 WL 3339488, at *2 (E.D. N.C. June 13, 2016) ("A trial court's scheduling order 'is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.'") (quoting Gestetner Corp. v. Case Equip. Co., 107 F.R.D. 138, 141 (D. Me. 1985)). Further, there were subsequent Amended Case Management Orders which could have addressed Defendant's need ...


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