The opinion of the court was delivered by: Honorable Hugh B. Scott United States Magistrate Judge
Before the Court are (a) defendants Mary Ann Wehlage and Allegany County Society for the Prevention of Cruelty to Animals ("Allegany County SPCA")'s joint (collectively referred to as the "SPCA defendants") motion to compel plaintiffs to appear at depositions initially scheduled for October 3, 5, 6, and 10, 2006 (Docket No. 179*fn1 ); (b) the SPCA defendants' joint motion to strike plaintiffs' expert disclosure and preclude expert testimony (Docket Nos. 182, 183*fn2 ). Previously, this Court granted the SPCA defendants motions for a protective order (Docket No. 161) and to compel documentary discovery from plaintiffs (Docket Nos. 165, 178*fn3 ), while denying plaintiffs' cross-motion to compel (Docket Nos. 169, 178). That Order gave plaintiffs until September 25, 2006, to respond to the SPCA defendants' discovery requests (Docket No. 178, Order at 10), and plaintiffs now argue they intend to fully comply with (Docket No. 188, Pls. Atty. Aff. ¶ 4, filed Sept. 19, 2006). The present motion appears to be a follow up from that earlier discovery motion practice.
This civil rights case arises from the seizure of plaintiffs' dairy cattle from their family farm upon the alleged direction of the SPCA defendants. Familiarity with the facts from prior Reports & Recommendations (Docket Nos. 38, 72, 117, 137) and Orders (Docket Nos. 178, 79, 95, 123, 130, 140) is presumed.
The SPCA defendants attempted to arrange for examining plaintiffs. First, they were hindered by plaintiffs failure to respond to the document discovery sought by the SPCA defendants (see Docket No. 179, SPCA Defs. Atty. Decl. ¶¶ 5, 6, Exs. G, H), causing the cancellation of depositions initially scheduled for July 2006 (see id. ¶¶ 4, 5, Exs. F, G). After this Court's Order compelling plaintiff's discovery (Docket No. 178), the SPCA defendants renewed their efforts to schedule these depositions, writing to plaintiffs' counsel in August 23, 2006, for dates in October (id. ¶ 7, Ex. I). Co-defendants Dr. McNeill and Lakewood Veterinary joined in the deposition schedule proposed by the SPCA defendants (id. ¶ 8, Ex. J, letter of Aug. 28, 2006). The SPCA defendants, however, had no word from plaintiffs as to this proposed schedule (id. ¶ 7). Under the current Scheduling Order in this case (Docket No. 157), all discovery is to conclude by October 11, 2006, with no extensions of that date to be granted (even for good cause shown) (id.), but given these pending motions, the Court held this deadline in abeyance pending resolution of these motions (Docket No. 195).
In addition to seeking to have plaintiffs deposed on the dates urged, the SPCA defendants also seek attorneys' fees for making this motion due to plaintiffs' pattern of default and ignoring defense counsel and the Court's Scheduling Order (Docket No. 179, SPCA Defs. Atty. Decl. ¶¶ 9-11).
Plaintiffs respond, on September 19, 2006, that their counsel scheduled the depositions which defendants unilaterally cancelled (Docket No. 188, Pls. Atty. Aff. ¶ 5). They stated they were available on October 5 and 6, 2006, for depositions, but now are only available on October 6, and are willing to cross-notice their depositions for that date (id. ¶¶ 6, 7). Plaintiffs urge that this Court not impose sanctions, noting that plaintiffs lost their entire livelihood by the taking of the cattle alleged in this action (id. ¶ 9). They note that defendants never called to confirm the availability of October 6, but instead made this motion to compel (id. ¶ 10).
Defendant replies that the declaration from plaintiffs' attorney is not accurate and that defense counsel called and wrote to plaintiffs' counsel to discuss her declaration (e.g., Docket No. 191, Defs. Atty. Reply Decl. ¶¶ 2-4, at 3 n.1). Defense counsel sent her letter on September 21, 2006 (id. Ex. A), and timely filed her reply declaration on the next day. Defense counsel also states that she has been ordered to appear in court in New Jersey on another matter and cannot be present for a deposition on October 6 (id. ¶ 8).
Response to this motion was due by September 19, 2006, and any reply was due by September 22, 2006 (Docket No. 181). The motion was deemed submitted, without oral argument, on September 25, 2006 (Docket No. 186), later extended to October 10, 2006, to be coterminous with defendants' other motion (Docket No. 194).
Motion to Strike Expert Disclosure
Plaintiffs submitted expert disclosure listing two men, Bob Weaver and Patrick O'Brien (see Docket No. 183, SPCA Defs. Atty. Decl. Ex. B). The SPCA defendants complain that plaintiffs served their expert disclosure late. According to the Scheduling Order (Docket No. 157; see Docket No. 183, SPCA Defs. Atty. Decl. Ex. B), plaintiff's expert disclosure was due by August 30, 2006*fn4 (Docket No. 183, SPCA Defs. Atty. Decl. ¶ 2). The SPCA defendants state that, while the disclosure was dated August 30, 2006, this was postmarked for a later date, September 1, 2006 (id. ¶ 8, Ex. C*fn5 ). Plaintiffs also failed to furnish expert reports from Messrs. Weaver or O'Brien (id. ¶ 4), admitting that O'Brien has not rendered such a report (id. ¶ 5, Ex. A, at 3) and referring to an earlier affidavit for Weaver's report (id. ¶ 6, Ex. A, at 2), but without specifying which affidavit was the one referred to (cf. Docket No. 108 (Aff. of David Weaver, sworn to Oct. 4, 2004, submitted by plaintiffs)). Plaintiffs failed to provide references, a list of publications, disclosure of the experts' compensation, and disclosure of the cases in which the experts testified in the last four years (Docket No. 183, SPCA Defs. Atty. Decl. ¶ 7), see also Fed. R. Civ. P. 26(a)(2)(B).
The SPCA defendants note that this is their fourth motion to compel some form of discovery from plaintiffs for their "insufficient and late disclosure" (id. ¶ 11), that appears to be a "pattern of discovery abuses," that warrants sanctions of striking the expert disclosure and precluding the testimony of Weaver and O'Brien (id. ¶ 12). They contend that they are prejudiced in ...