Opinion
No. CIV S-05-1874 DAD P.
December 10, 2007
ORDER
Plaintiff, a former state prisoner, is proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. The matter is before the court on defendant's December 4, 2007 discovery motion.
First, defendant's counsel has moved the court for an order deeming defendant's disclosure of retained expert Dr. Sher timely despite the six-day delay in serving Dr. Sher's report on plaintiff. Defendant contends that Dr. Sher could not feasibly prepare the expert report by the date disclosure was due because of his recovery from surgery and the intervening Thanksgiving holiday. Good cause appearing, the court will deem defendant's disclosure of retained expert Dr. Sher timely.
Defendant's counsel has also moved the court to reopen discovery to allow for the deposition of Dr. Ramberg, contending that Dr. Ramberg was not previously deposed because he was not designated by defendant's counsel as an expert until after the close of discovery under the court's scheduling order. In the absence of good cause, the court will not modify the scheduling order. See Fed.R.Civ.P. 16(f); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Counsel's unexplained failure to timely disclose an expert witness obviously does not establish good cause to reopen discovery. Under the court's scheduling order discovery closed in this matter on January 1, 2007. Moreover, plaintiff has already filed a pretrial statement, defendant's pretrial statement is due December 21, 2007 and the final pretrial conference is set for December 28, 2007 with a jury trial is set for February 25, 2008. Defendant has failed to demonstrate good cause to reopen discovery and reschedule the previously established dates in this matter. Accordingly, the court will deny defendant's request to reopen discovery without prejudice to renewal based upon a showing of good cause.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Defendant's disclosure of retained expert Dr. Sher is deemed timely; and
2. Defendant's request to reopen discovery is denied without prejudice.