Gonzalez v. City of Alameda

• Court: District Court, N.D. California
• Decided: August 11, 2023
• Docket: 4:21-cv-09733
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIO GONZALEZ, et al., Case No. 21-cv-09733-DMR

8 Plaintiffs, ORDER ON JULY 27, 2023 JOINT 9 v. DISCOVERY LETTER

10 CITY OF ALAMEDA, et al., Re: Dkt. No. 90 11 Defendants.

12 The parties filed a joint discovery letter on July 27, 2023 in which the Gonzalez Plaintiffs 13 seek a protective order preventing Edith Arenales from contacting, deposing, or attempting to 14 subpoena their retained experts. [Docket No. 90 (Jt. Letter).] Because Defendants are unable to 15 depose those experts until this dispute is resolved, Defendants request that the expert discovery 16 deadline be continued from September 15, 2023 to September 29, 2023. This matter is suitable for 17 resolution without a hearing. Civ. L.R. 7-1(b). For the following reasons, the Gonzalez Plaintiffs’ 18 motion is granted, and Defendants’ request is denied as moot. 19 On December 8, 2022, the court denied Arenales’ motion to consolidate the trial in her 20 case (4:22-cv-00718-DMR) with this case due to conflicts that could prejudice the Gonzalez 21 Plaintiffs. The court consolidated the cases for discovery to promote efficiency given that both 22 involve the same incident. [Docket No. 60.] The deadline for expert disclosures in both cases was 23 July 21, 2023. [Docket No. 74.] The Gonzalez Plaintiffs provided a courtesy copy of their expert 24 disclosures to Arenales’ counsel on July 21, 2023. Jt. Letter at 1. They assert that Arenales 25 subsequently served expert disclosures designating the Gonzalez Plaintiffs’ experts as her own. 26 Id. Arenales concedes that she did not retain these experts. Instead, she contends that she 27 “decided to mutually identify/designate [the Gonzalez Plaintiffs]’ experts[.]” Id. at 3. In other 1 Gonzalez Plaintiffs’ experts as her own and use their work and testimony. 2 Arenales argues that Penn Nat. Ins. v. HNI Corp., 245 F.R.D. 190, 194 (M.D. Pa. 2007) is 3 “directly on point,” relying on that court’s analysis of Federal Rules of Procedure 26(b)(2) and 4 26(b)(4)(a). See Jt. Letter at 3, 4. In Penn Nat. Ins., the court noted that “[o]nce an expert is 5 designated and his report submitted pursuant to Rule 26(b)(2), another party may depose the 6 expert pursuant to Rule 26(b)(4)(A). This deposition testimony may then be admissible at trial 7 should the expert become unavailable or as the basis for impeachment.” 245 F.R.D. at 193. Penn 8 Nat. Ins. is readily distinguishable. Arenales is not a party in this case, and the Gonzales and 9 Arenales cases have not been consolidated for trial. Therefore, Rule 26(b)(4)(A) is inapposite. 10 Arenales could have retained the experts before the deadline (assuming the experts agreed 11 to work on her behalf.) Arenales cannot now lay claim to that expert work, either by 12 “designating” them as her own or by participating in their depositions. As noted by the Gonzalez 13 Plaintiffs, allowing Arenales’ counsel to take part in the expert depositions, presumably to develop 14 testimony helpful to Arenales, would be prejudicial to their case because among other things, 15 Arenales’ questions could open the experts up to cross-examination by Defendants they would not 16 otherwise face. Jt. Letter at 2. 17 Accordingly, the Gonzalez Plaintiffs’ motion for a protective order is granted to the extent 18 it bars Arenales’ counsel from designating the experts as her own, participating in their 19 depositions in this case, or attempting to subpoena them for her trial.1 20 // 21 // 22 // 23 // 24 // 25 // 26

27 1 The Gonzalez Plaintiffs’ request to bar Arenales’ counsel from “contacting” the experts is denied 1 Defendants request that the expert discovery deadline be continued to September 29, 2023. 2 At the August 10, 2023 hearing on Defendants’ motions for summary judgment, the parties 3 represented that the first expert deposition is scheduled on August 23, 2023. Because that 4 deposition can now proceed as scheduled, Defendants’ request is denied as moot. 5 6 IT IS SO ORDERED. 7 Dated: August 11, 2023 8 ______________________________________ Donna M. Ryu 9 Chief Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27