United States District Court, Southern District of New York
May 13, 2003
AUSCAPE INTERNATIONAL, ET AL., PLAINTIFFS, AGAINST NATIONAL GEOGRAPHIC SOCIETY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge
Plaintiffs, by letter dated May 2, 2003, seek reconsideration of the order of April 28, 2003. Although the scheduling order in this case, as extended, unambiguously required "completion of all discovery" by April 2, 2003, they maintain that they somehow believed that "all discovery" did not include expert discovery and that they were justified in doing so in light of Fed.R.Civ.P. 16(b) and 26(a)(2)(c). This argument is specious.
Rule 26(a)(2)(C) establishes a timetable for expert disclosures but that timetable is strictly a default option, applicable only if the Court does not otherwise direct. Rule 16(b)(4) confirms the Court's power in this respect. In this case, the Court unequivocally required the completion of "all discovery" by April 2. At an absolute minimum, that required the designation of plaintiffs' experts, if any, and the service of their reports no later than April 2, 2003.
Not only does the clear language of the scheduling order belie plaintiffs' claim of misunderstanding, so too does one of their own filings. Following the transfer of this case to this district, the Court set a scheduling conference for September 13, 2002. In advance of that conference, plaintiffs filed a proposed Rule 26(f) report. While the Court did not adopt plaintiffs' suggested schedule, plaintiffs' own proposal contained a "proposed discovery cutoff date" that did not differentiate between, and provided no different schedule for, expert and other discovery.
In short, the Court concludes that plaintiffs' claim of misunderstanding is not credible, at least to the extent that they believed they were free to identify experts and serve expert reports after April 2, 2003. Nonetheless, in view of the defendants' failure to claim prejudice, the Court reconsiders its ruling precluding Mr. Kahrs from testifying provided plaintiffs make him available for deposition no later than June 6, 2003 and produce the necessary materials no later than one week in advance of that deposition. They shall produce any rebuttal expert reports no later than 14 days after the completion of the deposition(s) of the defendants' expert(s) which they are intended to rebut.
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