Opinion
2:21-cv-01315-RFB-BNW
04-26-2022
KIMBERLY ANN NESKE, individually and as heir and as Special Administrator for THE ESTATE OF JAMES NESKE, Plaintiff, v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al. Defendants.
STIPULATION TO EXTEND DISCOVERY
(THIRD REQUEST) [ECF NO. 18]
IT IS HEREBY STIPULATED AND AGREED between the parties that the discovery cut-off date of June 23, 2022, be continued for a period of ninety (90) days up to and including August 22, 2022, for the purpose of allowing the parties to complete written discovery, disclose expert witnesses, and take depositions of the parties.
I. DISCOVERY COMPLETED TO DATE
Plaintiff and Las Vegas Metropolitan Police Department, Michael Lowe and Eric Cline (“LVMPD Defendants”) have exchanged their initial Rule 26 Disclosures. Plaintiff has provided four supplements and LVMPD Defendants have provided three supplements to their Rule 26 Disclosures. Plaintiff served Interrogatories and Requests for Production of Documents individually on each LVMPD Defendant and responses were made. Plaintiff served a Second Request for Production of Documents on LVMPD which Defendants responded to. Plaintiff has served a second set of interrogatories, which require responses. The LVMPD Defendants served their initial written discovery requests (Interrogatories and Requests for Production of Documents) which the Plaintiff has recently responded to. The depositions of Defendants Eric Cline and Michael Lowe and non-party officers Det. Gary King, Lt. Brian Arizmendi, and witness Cody Kasper have been taken.
II. DISCOVERY YET TO BE COMPLETED
The parties will serve various third-party subpoenas and may serve additional written discovery on each other. The LVMPD Defendants will take the deposition of Plaintiff. Plaintiff will depose non-party witness Francisco Vidal and officer Jesse Reynolds, likely in early June, due to scheduling difficulties. The parties have retained experts and will provide timely expert reports. The parties will depose the others' experts.
III. REASONS WHY REMAINING DISCOVERY HAS NOT BEEN COMPLETED
The claims in this matter surround the death of a Clark County Detention Center (“CCDC”) inmate while he was in custody. The death resulted in an in depth homicide investigation. As such, the information and materials surrounding the time period before, during and after the death involve voluminous documents and substantial information. It has taken time for the LVMPD Defendants to gather all materials related to this incident, review them (as many documents contain confidential information of non-parties) and disclose them to Plaintiff.
There is good cause to extend the expert disclosures, discovery cut off, dispositive motion, and pretrial order deadlines. LVMPD Defendants recognize that the parties are making this request less than 21 days before the initial expert disclosure deadline of April 25, 2022, however LVMPD Defendants submit that good cause exists for the delay.
LR 26-3 states in relevant part:
A motion or stipulation to extend a deadline set forth in a discovery plan must be received by the court no later than 21 days before the expiration of the subject deadline. A request made within 21 days of the subject deadline must be supported by a showing of good cause. A request made after the expiration of the subject deadline will not be granted unless the movant also demonstrates that the failure to act was the result of excusable neglect.
There are multiple reasons this request is being made less than 21 days before the initial expert disclosure deadline. First, as explained above in the procedural history, both parties have been diligently engaging in discovery. During that time, Counsel has been busy preparing for trial in three (3) other cases and has had active motion practice in several other cases. Within the last twenty-one (21) days, Plaintiff has served her written discovery responses and a supplemental disclosure and Lt. Arizmendi's deposition was conducted. This deposition transcript and additional records need to be evaluated by experts for them to formulate their opinions. In addition, the discovery responses provided information needed to issue further written discovery and subpoenas.
In addition to this matter being complex, additional relevant discovery needs to be completed before experts can properly evaluate this case. Plaintiff has had difficulty locating a relevant witness, Francisco Vidal. Plaintiff served a subpoena on the State of Nevada's Department of Public Safety, Division of Parole and Probation (DPP) office for Vidal's contact information, and DPP sought a protective order from this court. Only recently has this Court ordered that DPP shall provide plaintiffs counsel with Vidal's contact information. Plaintiff has recently served additional interrogatories and has requested to depose another Clark County Detention Center Officer, Jesse Reynolds, although with scheduling challenges, this deposition will likely not be able to occur until early June. As mentioned, Plaintiff's responses to written discovery were recently served on Defendants. These discovery responses provide information that will allow Defendant to serve subpoenas for records on third parties. The experts will need additional time to review the voluminous materials already produced and discovery that is yet to be obtained to prepare expert reports.
As such, the LVMPD Defendants submit that good cause exists. The parties have acted in good faith as evidenced by the voluminous disclosures and written discovery exchanged between the parties. The brief delay will not impede this matter and, in fact and will help the parties to fully conduct the discovery needed. Along those same lines, the delay and extension will not prejudice the Plaintiff or this Court.
IV. PROPOSED EXTENDED DEADLINES
The parties respectfully request this Court enter an order as follows:
Deadline
Current Date
Proposed New Date
Disclosure of Experts
April 25, 2022
Fri., July 22, 2022
Disclosure of Rebuttal Experts
May 25, 2022
Mon., Aug. 22, 2022
Discovery Cut Off
June 23, 2022
Weds., Sept. 21, 2022
Dispositive Motion Deadline
: July 25, 2022
Fri., Oct, 21, 2022
Pre-Trial Order
August 24, 2022
Mon., Nov. 21, 2022
(A) Motions in Limine/ Daubert Motions.
Under LR 16-3(b), any motions in limine, including Daubert motions, shall be filed and served 30 days prior to the commencement of Trial. Oppositions shall be filed and served and the motion submitted for decision 14 days thereafter. Reply briefs will be allowed only with leave of the Court.
(B) Pretrial Order.
Pursuant to LR 26(1)(e)(5), the Joint Pretrial Order shall be filed with this Court no later than thirty (30) days after the date set for filing dispositive motions, unless dispositive motions are filed, in which case the date for filing the Joint Pretrial Order shall be suspended until 30 days after the decision on the dispositive motions or further order of this Court. The disclosures required by Fed.R.Civ.P. 26(a)(3) and any objections shall be included in the final pretrial order.
(C) Extensions or Modification of the Discovery Plan and Scheduling Order.
In accordance with LR 26-3, applications to extend any date set by the discovery plan, scheduling order, or other order must, in addition to satisfying the requirements of LR 6-1, be supported by a showing of good cause for the extension. All motions or stipulations to extend a deadline set forth in a discovery plan shall be received by the Court not later than 21 days before the expiration of the subject deadline. A request made after the expiration of the subject deadline shall not be granted unless the movant demonstrates that the failure to set was the result of excusable neglect. Any motion or stipulation to extend a deadline or to reopen discovery shall include:
(a) A statement specifying the discovery completed;
(b) A specific description of the discovery that remains to be completed;
(c) The reasons why the deadline was not satisfied or the remaining discovery was not completed within the time limits set by the discovery plan; and
(d) A proposed scheduled for completing all discovery.
This request for an extension is made in good faith and joined by all the parties in this case. The Request is timely pursuant to LR 26-3. Trial is not yet set in this matter and dispositive motions have not yet been filed. Accordingly, this extension will not delay this case.
Moreover, since this request is a joint request, neither party will be prejudiced. The extension will allow the parties the necessary time to complete discovery.
ORDER
IT IS ORDERED that ECF No. 26 is GRANTED to the extent that the Court adopts the parties' proposed deadlines on pages four and five.
IT IS SO ORDERED.