United States District Court, Southern District of New York
April 28, 2003
AUSCAPE INTERNATIONAL, ETC., PLAINTIFFS, AGAINST NATIONAL GEOGRAPHIC SOCIETY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge
This matter is before the Court on the applications of (a) plaintiffs, per letter of April 22, 2003, to require defendants to provide expert discovery and to extend the time for plaintiffs to serve their rebuttal reports, and (b) defendants, per letter dated April 25, 2003, to preclude plaintiffs from calling Henry J. Kahrs as an expert on the ground that his designation was untimely.
By order dated September 13, 2002, this Court fixed March 12, 2003 as the date for completion of "all discovery." (Emphasis added) That date in due course was extended to and including April 2, 2003. On March 24, 2003, plaintiffs applied for additional time "for depositions only (and other pertinent dates i.e.: motion, experts." On or about April 2, 2003, defendants served reports of their proposed experts. On the following day, the Court declined to extend the discovery period, but did allow the parties to "continue depositions to and including April 16, 2003" "notwithstanding the conclusion of the discovery period." On April 9, 2003, plaintiffs demanded documentary discovery concerning defendants' experts and dates for their depositions. Defendants refused, asserting that the time for completion of discovery had expired.
There was no ambiguity whatever in the scheduling order. The parties have known since September of last year that all discovery was to be concluded by March 12, 2003 and then ultimately by April 2, 2003, subject to the continuation of certain depositions through April 16. Nevertheless, defendants responded as late as March 19, 2003 to discovery requests calling for the identification of experts by stating that they had not yet decided upon experts but would produce reports of those whom it might call, which they did at the very end of the discovery period.
Defendants are quite right in arguing that the scheduling order unambiguously required completion of all discovery, including experts, by April 2, 2003. They are quite wrong in supposing that they can avoid discovery of their experts by delaying their designation until the eleventh hour.
On the other hand, plaintiffs' designation of Henry J. Kahrs manifestly was untimely. Plaintiffs have offered no excuse, let alone any sufficient excuse, for their failure.
Plaintiffs' application is granted to the extent that defendants shall make their experts available for deposition by plaintiffs so that all such depositions may be completed by May 15, 2003 and shall produce the requested documents at least one week in advance of each deposition. Defendants' application to preclude plaintiffs from calling Mr. Kahrs is granted.
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