Opinion
W-21-CV-00899-ADA-DTG
01-04-2024
WAVETRONIX LLC, Plaintiff, v. ITERIS, INC., Defendant.
ORDER ON DISCOVERY DISPUTE OF DECEMBER 13, 2023
DEREK T. GILLILAND, UNITED STATES MAGISTRATE JUDGE
The Parties submitted a discovery dispute chart contesting the propriety of reply reports served by Wavetronix. The reports were served by Wavetronix after the experts-Michael Jenson and Barry Bell-had been deposed. Before the depo, Wavetronix warned Iteris that reply reports would be forthcoming.
Wavetronix contends that the reply reports were proper under the Federal Rules of Civil Procedure. Wavetronix contends that Rule 26(a)(2)(D)(ii) allows the replies because it reads, “[a]bsent a stipulation or court order,” expert reports “intended solely to contradict or rebut evidence on the same subject matter by another party” must be served “within 30 days after the other party's disclosure.”
The Court finds Wavetronix's reply reports of Michael Jenson and Barry Bell are improper and grants Iteris request to strike the reports. Wavetronix's reading of Rule 26 misreads the rules and would create a never-ending right to filing rebuttal reports. See Familias Unidas Por La Educacion v. El Paso Indep. Sch. Dist., No. EP-20-CV-170-DB, 2022 WL 2906505, at *4 (W.D. Tex. July 22, 2022) (citing Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage Commission, 1:15-cv-134-RP, 2017 WL 9480314, at *2 (W.D. Tex. May 22, 2017)). Wavetronix never requested leave to serve the reports and did not provide the reports before the experts were deposed.
The Court GRANTS Iteris's requested relief and STRIKES the December 4, 2023 Sur-Rebuttal Expert Reports of Michael Jensen and Barry Bell.