Gill v. Magan

• Court: District Court, W.D. Washington
• Decided: January 6, 2021
• Docket: 2:19-cv-00860
• Status: Unknown

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 NANCY GILL, CASE NO. C19-860 MJP 11 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO 12 v. COMPEL 13 MICHAEL MAGAN, et al., 14 Defendants. 15 16 This matter comes before the Court on Defendants’ Motion to Compel. (Dkt. No. 51.) 17 Having reviewed the Motion, Plaintiff’s Opposition (Dkt. No. 53), the Reply (Dkt. No. 61), and 18 all supporting papers, the Court GRANTS the Motion. 19 BACKGROUND 20 Defendants seek production of a document that Plaintiff’s expert reviewed in forming his 21 opinions. The document is entitled “Nancy Gill Complete Timeline (003) – Nancy Gill Case 22 Timeline of Events.” Plaintiff’s counsel states that the document contains “a compilation of 23 events derived from police reports.” (Declaration of Darryl Parker ¶ 5 (Dkt. No. 54).) Plaintiff 24 1 did not produce this document to Defendants and now claims that it contains attorney work 2 product. 3 ANALYSIS 4 A. Defendants Motion is Timely 5 The Court may extend a case deadline if the moving party shows that it could not

6 reasonably meet the deadline despite its diligence. Fed. R. Civ. P. 16(b); Johnson v. Mammoth 7 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “Rule 16(b)’s ‘good cause’ standard 8 primarily considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609. 9 Although Defendants did not ask leave to file this Motion after the discovery motion 10 deadline, they sufficiently addressed the issue in their reply. As Defendants have demonstrated, 11 they diligently sought production of the timeline from Plaintiff, and the delay in filing the 12 Motion is excusable. The Court finds the record before it evidences sufficient good cause to 13 allow this late filing. 14 B. The Document Must be Produced

15 Rule 26(a)(2)(B)(ii) requires an expert report to contain and disclose “the facts or data 16 considered by the witness in forming them.” “The disclosure obligation extends to any facts or 17 data ‘considered’ by the expert in forming the opinions to be expressed, not only those relied 18 upon by the expert.” Fed. R. Civ. P. 26(a)(2)(B) Adv. Comm. Note to 2010 Amendment. There 19 are exceptions to this disclosure obligation. Rule 26(b)(3) excludes from disclosure trial 20 preparation materials including certain expert materials. See Republic of Ecuador v. Mackay, 21 742 F.3d 860, 866 (9th Cir. 2014). But “a party may still obtain discovery of trial preparation 22 materials under Rule 26(b)(3) if they are otherwise discoverable and the party shows that it has a 23 ‘substantial need’ for the materials and ‘cannot, without undue hardship, obtain their substantial 24 1 equivalent by other means.’” Id. (quoting Fed. R. Civ. P. 26(b)(3)(A)). And Rule 26(b)(4)(C) 2 permits discovery of “communications between the party’s attorney and any [expert required to 3 produce a report] . . . to the extent that the communications . . . identify facts or data that the 4 party’s attorney provided and that the expert considered in forming the opinions to be 5 expressed.” Fed. R. Civ. P. 26(b)(4)(C); see Mackay, 742 F.3d at 866.

6 The Court finds production of the timeline appropriate. The document, even if prepared 7 by counsel, is a timeline that contains “a compilation of events derived from police reports.” 8 (Parker Decl. ¶ 5.) The timeline thus contains facts and data on which the expert relied in 9 forming his opinions. It must be produced under Rule 26(a)(2)(B) and (b)(4)(C). The Court 10 therefore GRANTS the Motion and ORDERS the production of the timeline within 5 days of 11 entry of this Order. 12 CONCLUSION 13 Defendants have demonstrated that they should be entitled to review the timeline on 14 which Plaintiff’s expert relied in forming his opinions, and that their motion should be accepted

15 as timely filed. The Court GRANTS the Motion and ORDERS production of the timeline within 16 5 days of entry of this Order. 17 The clerk is ordered to provide copies of this order to all counsel. 18 Dated January 6, 2021. A 19 20 Marsha J. Pechman United States District Judge 21 22 23 24