Opinion
Case No. 2:12-cv-01727-APG-NJK
05-28-2014
COLONY INSURANCE COMPANY, Plaintiff(s), v. COLORADO CASUALTY INSURANCE COMPANY, Defendant(s).
ORDER
(Docket No. 34)
Pending before the Court is Defendant's motion to strike Plaintiff's supplemental expert report. Docket No. 34. Plaintiff filed a response in opposition and Defendant filed a reply. Docket Nos. 43, 46. The Court finds this matter appropriately resolved without oral argument. See Local Rule 78-2. For the reasons discussed below, the motion to strike is hereby DENIED.
Plaintiff timely disclosed the initial expert report of Paul Burkett on October 11, 2013. See Docket No. 43 at 2. On or about November 9, 2013, Defendant produced supplemental discovery in response to written discovery requests. See id. On or about January 14, 2014, Defendant produced additional documentation in relation to the deposition of Lauren Feldman. See id. On February 7, 2014, Plaintiff served a supplemental report by Mr. Burkett, relying on the materials produced in November 2013 and January 2014. See Docket No. 34-3. The discovery period concluded on February 10, 2014. See Docket No. 31.
Defendant's motion is sparse, containing no case law citations and an argument section of less than two pages. See Docket No. 34 at 5-7. The motion asserts that the supplemental report is improperly based on information produced in November 2013 and January 2014. See id. at 6. For the first time in reply, Defendant asserts that the supplemental report relies on documents produced by Plaintiff in March 2013. See Docket No. 46 at 6. Because Defendant raised this latter argument for the first time in its reply brief, the Court will not consider it. See, e.g., Bazuaye v. I.N.S., 79 F.3d 118, 120 (9th Cir. 1996) (per curiam).
Now pending before the Court is Defendant's motion to strike, arguing that the supplemental expert report of Mr. Burkett was untimely. In particular, Defendant argues that the supplementation was not provided by the initial or rebuttal expert deadline. See Docket No. 34 at 5-6. Defendant further argues that it will be prejudiced by not striking the expert report because it did not have an opportunity to respond with a rebuttal expert report. See id. at 6.
Defendant acknowledges that supplementation based only on the information produced in January 2014 would be proper. See Docket No. 46 at 9 n.2.
With regard to expert reports, "the party's duty to supplement extends to both information included in the report and to information given during the expert's deposition." Rule 26(e)(2). "However, an expert's duty to supplement under Rule 26(e) is not a right to supplement at will." Allstate Insurance Co. v. Balle, 2013 U.S. Dist. Lexis 154244, *7 (D. Nev. Oct. 28, 2013).
Unless otherwise noted, references to "Rules" refer to the Federal Rules of Civil Procedure.
A party may not use a supplemental report to disclose information that should have been disclosed in the initial expert report, thereby circumventing the requirement for a timely and complete expert witness report. Rather, supplementation under the Rule means correcting inaccuracies, or filling the interstices of an incomplete report based on information that was not available at the time of the initial disclosure.Id. (internal citations, quotations and alterations omitted).
"The time for supplementation is not limited to the discovery period." Burger v. Excel Contractors, Inc., 2013 WL 5781724, *3 (D. Nev. Oct. 25, 2013). Rule 26(e)(2) requires supplementation of expert reports to occur "by the time the party's pretrial disclosures under Rule 26(a)(3) are due," which is 30 days before trial unless otherwise ordered by the Court. See Abila v. United States, 2011 U.S. Dist. Lexis. 42944, *4 (D. Nev. Apr. 14, 2011). Generally speaking, supplementation of an expert report is proper where it is based on new information obtained after the expert disclosure deadline and the supplemental report was served before the time for pretrial disclosures. Allstate Ins. Co. v. Balle, 2014 U.S. Dist. Lexis 5729, *16-17 (D. Nev. Jan. 16, 2014); Abila, 2011 U.S. Dist. Lexis 42944, at *4-5; see also Dowling v. Arpaio, 2011 WL 5592909, *1-2 (D. Ariz. Nov. 17, 2011); Perez v. First American Title Ins. Co., 810 F. Supp. 2d 986, 989 (D. Ariz. 2011); United States v. 14.3 Acres of Land, 2008 WL 4079272, *6, 9 (S.D. Cal. Aug. 29, 2008).
Supplementation must be provided "at appropriate intervals" upon learning new information. See Burger, 2013 WL 5781724, at *3 (quoting the 1993 Advisory Comm. Notes). To that end, the Court is "mindful of the 'gaping loophole' which can result when parties abuse the liberal policy of Rule 26(e) with respect to the timing of supplemental reports." 14.3 Acres of Land, 2008 WL 4079272, at *9. As noted below, however, the Court does not find in this case that the rule is being abused.
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As an initial matter, Defendant points to a stipulation in which the parties asserted that the "deadlines for disclosure of experts and expert reports have expired" and did not seek a corresponding extension. See Docket No. 34 at 4 (quoting Docket No. 30). The stipulation further stated that "the parties have completed the disclosures noted above." Id. The Court does not read the stipulation as an agreement that there would be no supplemental expert reports. Indeed, as noted above, Rule 26(e)(2) provides that the deadline for supplementing expert reports is the time for Rule 26(a)(3) pretrial disclosures, which had not run at the time of the stipulation. Accordingly, the Court does not construe the stipulation as rendering Mr. Burkett's supplemental expert report untimely.
The Court finds Plaintiff's supplementation of Mr. Burkett's report to be timely. The supplemental report is based on discovery obtained after the deadline for Plaintiff's initial expert disclosures, and was provided prior to the deadline for the Rule 26(a)(3) pretrial disclosures. Moreover, the Court does not find the timing of the supplementation to have been in bad faith or an attempt to "sandbag" Defendant. In fairness to Defendant, however, the Court will allow it an opportunity to respond with a rebuttal expert report. Such expert report shall be served within 30 days of this order and must be limited to new opinions provided in Mr. Burkett's supplemental report.
For the reasons discussed above, the Court finds Mr. Burkett's supplemental expert report to be timely. Accordingly, Defendant's motion to strike is hereby DENIED.
IT IS SO ORDERED.
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NANCY J. KOPPE
United States Magistrate Judge