United States District Court, N.D. New York
April 23, 2004.
SEALED PLAINTIFF #1, SEALED PLAINTIFF #2, and SEALED PLAINTIFF #3,
SEALED DEFENDANT #1, SEALED DEFENDANT #2, and SEALED DEFENDANT #3, Defendants.
The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER
Plaintiffs appeal the Memorandum Decision and Order of Hon.
Gustave J. DiBianco, United States Magistrate Judge, filed on
February 17, 2004 ("February Order") to the extent that
plaintiffs' request for an extension of time to serve an expert
disclosure as to proposed expert Henry Branche was denied.
Plaintiffs do not appeal that portion of the February Order that granted an extension with regard to witness
Cox and denied a request to unseal the case. Defendants have not
responded to the appeal.
The standard for review of a magistrate judge's decision on
non-dispositive matters is whether the magistrate judge's
findings are "clearly erroneous or contrary to law."
28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). Clear error may be found
"when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed." Stetz v. Reeher
Enters., Inc., 70 F. Supp.2d 119, 120-21 (N.D.N.Y. 1999)
(quoting Vandewalker v. Quandt's Food Serv. Distribs., Inc.,
934 F. Supp. 42, 48 (N.D.N.Y. 1996)); United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948). Magistrate judges
are given broad discretion with respect to discovery disputes
which should not be overruled absent a showing of clear abuse of
discretion. See Hasbrouck v. America Hous. Servs., Inc.,
190 F.R.D. 42, 44 (N.D.N.Y. 1999).
Plaintiffs' basis for the request for an extension of sixty
days to make an expert disclosure was that the need for the
expert became known only after the deposition of a certain
witness which occurred in late October. The extension would allow
for receipt of the deposition transcript, review of that
transcript by the expert, and preparation of the expert report.
In the February Order it was noted that pursuant to the Pretrial
Scheduling Order in this matter expert disclosure was to have
occurred at the end of November 2003, and that the court had
earlier suggested the prompt deposing of this witness. It was
further noted that denial of the extension would essentially
preclude plaintiffs' expert's testimony, but that preclusion was
a remedy well within the authority of the court.
The law pertaining to the sanction of preclusion as set forth
by the magistrate judge is exactly on point, and therefore is
simply reiterated here. The sanction of preclusion is a "drastic remedy." Cartier, Inc. v. Four Star Jewelry Creations,
Inc., No. 01 Civ. 11295, 2003 WL 22471909 (D. Conn. Oct. 31,
2003). Even in the face of missed deadlines, "excluding expert
testimony can `frustrate the Federal Rules' overarching objective
of doing substantial justice to litigants.'" Id. (quoting In
re Kreta Shipping, S.A., 181 F.R.D. 273, 277 (S.D.N.Y. 1998)).
The following factors must be considered: "(1) the party's
explanation for the failure to comply with the discovery order;
(2) the importance of the testimony of the precluded witness; (3)
the prejudice suffered by the opposing party as a result of
having to prepare to meet the new testimony; and (4) the
possibility of a continuance." Softel, Inc. v. Dragon Medical &
Scientific Communications, Inc., 118 F.3d 955, 961 (2d Cir.
The Magistrate Judge found that the plaintiffs' explanation for
the delay weighed against granting the extension, because
plaintiffs could have completed the deposition earlier and
therefore was not diligent in efforts to complete discovery. The
Magistrate Judge relied upon Softel, Inc., 118 F.3d 955, in
support of precluding an expert for failure to diligently
complete expert discovery. That situation was very much different
than the facts in this case. See Softel, Inc. v. Dragon
Medical & Scientific Communications, Inc., No. 87 CIV. 0167,
1990 WL 164859 (S.D.N.Y. Oct. 24, 1990), aff'd, 118 F.3d 955
(2d Cir. 1997). There, the magistrate judge initially set an
expedited discovery schedule. Id. Multiple extension requests
were made and granted. Two years after the action was filed, and
one month before the close of discovery, plaintiff requested an
extension so that it could change experts. Id. It cited a fee
dispute with the previously retained expert as the reason the new
expert witness was needed. Id. The request was denied, and
affirmed on appeal.
The Softel, Inc. circumstances sharply contrast with the
facts in this case. Here, multiple extensions had not been
requested and granted. In fact, this was the first extension request in this matter. Further, the request was made barely one
year after the action was filed, and the pretrial schedule was
not "expedited." Finally, the need for an additional expert arose
after the deposition of a witness, not, as was the case in
Softel, Inc., because of a fee dispute with a former expert.
Accordingly, it was clearly erroneous to find that plaintiffs'
diligence in completing discovery weighed in favor of precluding
The next factor, importance of the expert's testimony, was
found to weigh neither for nor against preclusion, because the
court did not "wish to speculate upon plaintiffs' theory of this
case." It was clearly stated, however, in the discover conference
held on December 18, 2003, that the deposed witness testified as
to procedures followed in handling evidence and that the proposed
expert on law enforcement would testify to the completely
improper manner of handling evidence under those procedures.
(Keach Aff. Ex. D at 1.) Given that the basis for the causes of
action in this matter is that evidence (and the identity of the
minor victim) was left in a place where it could be observed by
the public, the expert's testimony is of significance to
plaintiffs' case. Thus, it was clearly erroneous not to find that
the importance of the expert's testimony weighed against
With regard to prejudice, the Magistrate Judge found that
granting the extension would prejudice the defendants. He
determined that defendants may have relied upon the initial
disclosure of only one witness, and that a greater delay would be
caused because defendants would need time to review the expert
report, depose the expert, and possibly retain a rebuttal expert.
It was also pointed out that discovery was scheduled to be
completed by February 27, 2004. While defendants may have relied
upon the initial disclosure of plaintiffs' single expert, a child
psychologist, it is not unusual, nor unduly prejudicial, to have
the need for an additional expert, on a different subject, arise
after deposing a witness. Moreover, the time delay to allow for review
of plaintiffs' proposed law enforcement expert should not be
significant in light of the fact that the individual defendant is
a law enforcement officer and the remaining defendants are law
enforcement agencies. Additionally, plaintiffs represented to the
court by letter on the day after the conference that the expert
disclosure could be completed fourteen days after obtaining leave
of court to do so. (Keach Aff. Ex. E, F.) It is also pointed out
that had the 60-day extension been granted on the day of the
discovery conference, December 18, 2003, the expert disclosure
would have been due one day after the decision was entered
denying the extension. Thus, relying upon potential delay
creating prejudice to defendants to weigh in favor of preclusion
was clearly erroneous. At best this factor was neutral.
Finally, the Magistrate Judge evaluated the possibility of a
continuance, and found that this factor could favor the
plaintiffs. This finding was not clearly erroneous.
Taking into consideration all of the necessary factors, it was
clearly erroneous and an abuse of discretion to deny plaintiffs'
request for a 60-day extension to disclose an additional expert
witness, resulting in the drastic consequence of precluding the
testimony of that witness.
Accordingly, it is
1. That portion of the February 17, 2004, Memorandum Decision
and Order denying plaintiffs' request for an extension of time to
produce expert disclosure related to Henry Branche is SET ASIDE;
2. Plaintiffs must produce such expert report on or before June
24, 2004; and
3. Defendants may produce a rebuttal expert report on or before
August 20, 2004. IT IS SO ORDERED.
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