Killgore v. Specpro Professional Services, LLC

• Court: District Court, N.D. California
• Decided: February 12, 2024
• Docket: 5:18-cv-03413
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 AARON KILLGORE, Case No. 5:18-cv-03413-EJD

9 Plaintiff, ORDER DENYING MOTION TO REOPEN EXPERT DISCOVERY 10 v.

11 SPECPRO PROFESSIONAL SERVICES, Re: Dkt. No. 69 LLC, 12 Defendant.

13 Plaintiff, Aaron Killgore (“Killgore”), brought this action against Defendant, SpecPro 14 Professional Services, LLC (“SpecPro”), alleging that SpecPro terminated Killgore’s employment 15 as a government contractor in retaliation for whistleblower activity protected under California law. 16 Notice of Removal (“Compl.”), ECF No. 1 at 18–32. Before the Court is Killgore’s motion to 17 reopen expert discovery. Mot. to Reopen Expert Discovery Re Environmental Expert (“Mot.”), 18 ECF No. 69. SpecPro filed an opposition, and Killgore filed a reply. Opp’n to Mot. (“Opp’n”), 19 ECF No. 71; Reply in Supp. of Mot. (“Reply”), ECF No. 73. 20 On February 8, 2024, the Court heard oral arguments from both Parties and took the matter 21 under submission. ECF No. 75. For the following reasons, the Court DENIES Killgore’s motion 22 to reopen expert discovery. 23 I. BACKGROUND 24 While he was consulting on an environmental project for the U.S. Army Reserve 25 Command under the employment of SpecPro, Killgore believed he was required to prepare an 26 Environmental Assessment report in a manner that violated federal law. Compl. ¶¶ 9–34. 27 Killgore alleges that he was terminated after reporting the suspected illegality to the client and his 1 supervisor at SpecPro. Id. 2 This case was removed from the Superior Court of the State of California, County of Santa 3 Clara on June 8, 2018. Notice of Removal, ECF No. 1 at 1–10. The Parties thereafter engaged in 4 discovery, and expert designations ended on October 15, 2019. ECF No. 28. On October 15, 5 2019, Killgore retained two expert witnesses, an economist and a psychologist, and identified two 6 other medical professionals as non-retained experts. Decl. of Amy K. Todd in Supp. of Opp’n, 7 Ex. A, Killgore’s Expert Witness Designation, ECF No. 71-1 at 5–8. During fact discovery, 8 Killgore also identified two former co-workers, Melissa Russ (“Russ”) and Oskar Burger 9 (“Burger”), as lay witnesses to testify in part to their understanding of Environmental 10 Assessments. Mot. 6. Russ and Burger were both deposed in April 2019. Id. 11 On December 19, 2019, the Court granted SpecPro’s motion for partial summary judgment 12 as to the first cause of action for wrongful termination in violation of California’s whistleblower 13 protections under California Labor Code section 1102.5(c), and the fourth cause of action for 14 wrongful termination in violation of public policies under Section 1102.5(b). Order Granting 15 Partial Summ. J., ECF No. 40. Upon appeal, on October 20, 2022, the Ninth Circuit affirmed the 16 Court’s order granting summary judgment of the Section 1102.5(c) whistleblower claim, and 17 reversed and remanded the Court’s order granting summary judgment of the Section 1102.5(b) 18 claim. Killgore v. SpecPro Pro. Servs., LLC, 51 F.4th 973 (9th Cir. 2022). The Parties resolved 19 the wage claims to allow an appeal of the partial summary judgment claims; thus, the only 20 remaining claims for trial are the Section 1102.5(b) whistleblower claim and wrongful termination 21 claim. See Mot. 6; Joint Trial Setting Conference Statement 2–3, ECF No. 67. 22 On September 29, 2023, the Parties filed a stipulation to set trial. ECF No. 64. Jury trial is 23 currently set to begin on April 16, 2024. ECF No. 70. On December 6, 2023, Killgore filed the 24 present motion requesting that the Court reopen expert discovery so Killgore can hire an 25 environmental expert. See Mot. 26 27 1 II. LEGAL STANDARD 2 “District courts in the Ninth Circuit generally have approached motions to substitute experts 3 after the deadline in one of two ways. Either they construe the motion as a motion to amend the 4 court's scheduling order under Rule 16(b) of the Federal Rules of Civil Procedure or they construe 5 the motion as an untimely designation under Rule 26(a) of the Federal Rules of Civil Procedure and 6 determine whether to sanction the untimely disclosure under Rule 37(c) of the Federal Rules of 7 Civil Procedure.” In re Northrop Grumman Corp. ERISA Litig., No. CV 06-06213-AB (JCX), 8 2016 WL 6826171, at *2 (C.D. Cal. Apr. 7, 2016) (comparing Fidelity Nat'l Finc., Inc. v. Nat'l 9 Union Fire Ins. Co., 308 F.R.D 649, 652 (S.D. Cal. 2015) and Park v. CAS Enterprises, Inc., No. 10 08-cv-00385, 2009 WL 4057888, at *2–3 (S.D. Cal. Nov. 18, 2009) with Nijjar v. Gen. Star Indem. 11 Co., No. 12-cv-08148, 2014 WL 271630, at *2 (C.D. Cal. Jan. 2014)). 12 A. Federal Rules of Civil Procedure 26(a) and 37(c) 13 Rule 26(a) of the Federal Rules of Civil Procedure requires parties to make initial 14 disclosures providing “the name and, if known, the address and telephone number of each 15 individual likely to have discoverable information—along with the subjects of that information— 16 that the disclosing party may use to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i). 17 Parties must supplement their disclosures in a timely manner. Fed. R. Civ. P. 26(e)(1)(A). Rule 18 37(c)(1) provides that “[i]f a party fails to provide information or identify a witness as required by 19 Rule 26(a) or (e), the party is not allowed to use that information . . . at a trial, unless the failure 20 was substantially justified or is harmless.” Hoffman v. Constr. Protective Serv., Inc., 541 F.3d 21 1175, 1179 (9th Cir. 2008). “The party facing sanctions bears the burden of proving that its failure 22 to disclose the required information was substantially justified or is harmless.” Unicolors, Inc. v. 23 H&M Hennes & Mauritz L.P., 52 F.4th 1054, 1073 (9th Cir. 2022) (citation omitted). 24 B. Federal Rule of Civil Procedure 16(b) 25 Rule 16(b)(4) requires a plaintiff to establish “good cause” to modify a court’s scheduling 26 order. Fed. R. Civ. P. 16(b)(4). Under Rule 16(b), “the focus of the inquiry is upon the moving 27 party's reasons for seeking modification.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 1 608 (9th Cir. 1992). Secondarily, “the existence or degree of prejudice to the party opposing the 2 modification might supply additional reasons to deny a motion.” Id. Ultimately, if the moving 3 party was not diligent, “the inquiry should end.” Id. 4 III. DISCUSSION 5 Killgore moves to reopen discovery so he may designate an environmental expert. Killgore 6 raises two primary justifications for his request: (1) Killgore’s financial situation has changed since 7 expert discovery closed in 2019, and he now has the financial resources necessary to hire an 8 environmental expert; and (2) Russ and Burger, the two lay witnesses identified to testify regarding 9 Environmental Assessments, have expressed decreasing enthusiasm for Killgore’s case over the 10 years. 11 Killgore asks the Court to consider his motion as a request for delayed disclosure under 12 Rule 26(a) and analyze whether the delayed disclosure is substantially justified or harmless 13 pursuant to Rule 37(c). SpecPro asks the Court to consider Killgore’s motion as a request to 14 modify the case schedule under Rule 16(b) and analyze whether Killgore has shown good cause 15 and diligence pursuant to Rule 16(a)(4). The Court finds Rule 16(b) a more appropriate lens, as 16 Killgore’s motion essentially requests a change in the Court’s scheduling order by reopening 17 discovery and adjusting trial dates to accommodate the new discovery. See, e.g., In re Northrop 18 Grumman Corp. ERISA Litig., 2016 WL 6826171, at *2; Fidelity, 308 F.R.D. at 652; Park, 2009 19 WL 4057888, at *2–3. 20 Even so, under both frameworks, the Court finds that Killgore has not met the requisite 21 standards to reopen discovery at this late stage. 22 A. Rule 26(a) and 37(c) 23 To reiterate, in considering Killgore’s motion as a request for delayed disclosure under Rule 24 26(a), Killgore would need to show that there is either substantial justification or harmlessness 25 pursuant to Rule 37(c). 26 1. Substantial Justification 27 Courts in this circuit weigh five factors in analyzing substantial justification: (1) the surprise 1 to the party against whom the evidence would be offered; (2) the ability of that party to cure the 2 surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of 3 the evidence; and (5) the non-disclosing party's explanation for its failure to disclose the 4 evidence. See, e.g., Moua v. IBM Corp., No. 5:10-cv-01070-EJD, 2019 WL 917422, at *1 (N.D. 5 Cal. Feb. 25, 2019). 6 Here, the Court finds that the factors favor denying the motion. 7 First, Killgore’s motion itself is not a surprise to SpecPro, as Killgore informed the Court of 8 its intent to file a motion to reopen expert discovery in its September 29, 2023, status report, and 9 the Parties indicated that they discussed this motion in July 2023. Stipulation to Set Trial and 10 Related Dates, ECF No. 64; Opp’n 10. However, to date, Killgore still has not identified the 11 environmental expert he plans to designate. See Mot. 14 (proposing a designation and report 12 deadline on or about March 29, 2024). Because the proposed environmental expert remains a 13 surprise, this factor weighs in favor of a denial. 14 Second, trial is set in approximately two months on April 16, 2024. Unless the Court 15 continues the trial, it is highly unlikely that SpecPro will have enough time to cure the surprise by 16 April 16, 2024. This is particularly true given that Killgore has yet to identify the expert he plans 17 on designating. Therefore, this factor also favors denying Killgore’s motion. 18 Third, Killgore’s motion proposes a schedule which would disrupt the trial schedule, as the 19 motion suggests expert discovery cutoff on April 26, 2024. Mot. 14. While Killgore filed his 20 motion before trial was set and modified his proposed discovery dates at oral argument, as 21 discussed above, the Court is not confident that there is enough time before April 16, 2024, to 22 conduct the discovery requested. See, e.g., Gene Pool Techs., Inc. v. Coastal Harvest, LLC, No. 23 521CV01328JWHSHK, 2023 WL 5941757, at *9 (C.D. Cal. July 26, 2023), report and 24 recommendation adopted, No. 521CV01328JWHSHK, 2023 WL 5944139 (C.D. Cal. Sept. 11, 25 2023) (summarizing the propensity for courts to find “that this factor favors granting a motion to 26 exclude where the violating party serves the relevant discovery near the trial date, such that the trial 27 itself would be disrupted or delayed in order to allow the opposing party adequate time to review 1 and respond to the discovery at issue”). Therefore, this factor also weighs in favor of denial. 2 Fourth, while the Court recognizes the importance of educating the jury on the requirements 3 of an Environmental Assessment, Killgore has already identified two witnesses to speak to this 4 topic, Russ and Burger. Although Killgore now describes Russ and Burger as “lay witnesses with 5 some expertise in the field who supported Killgore, though with decreasing passion between the 6 time of the project and their depositions,” Killgore has not provided any facts to suggest that Russ 7 and Burger have lost their ability to provide the jury with the information regarding Environmental 8 Assessments necessary to determine liability. Mot. 13. 9 Finally, Killgore’s two justifications for his delayed discovery request—a change in 10 financial resources and decreasing witness passion—are insufficient. First, Killgore argues that the 11 failure to designate an expert in 2019 was due primarily to financial conditions beyond Killgore’s 12 control, and he now has the financial resources necessary to hire an environmental expert. Mot. 13. 13 However, Killgore has cited no case law supporting his argument that a change in financial 14 resources constitutes substantial justification to reopen discovery at this late stage. Further, the fact 15 that Killgore retained two other expert witnesses in 2019 and designated another two non-retained1 16 expert witnesses leads the Court to believe that the issue is more one of priority than ability. 17 Second, Killgore argues that Russ and Burger have shown “decreasing passion between the time of 18 the project and their depositions.” Mot. 13. However, a perceived lack of enthusiasm in Killgore’s 19 cause over the course of litigation is not out of the ordinary, and again, Killgore has not supplied 20 any additional facts to show that Russ and Burger would be incapable of testifying to the 21 environmental implications in the case. Therefore, this factor also weighs in favor of denial. 22 Given that all factors favor denial, the Court finds that Killgore has failed to show a 23 substantial justification for his delayed request to reopen discovery. 24 2. Harmless 25 Even if there is no substantial justification, under Rule 26(a)’s framework, a delayed 26

27 1 The Court notes that Killgore could have designated a non-retained environmental expert in 2019 without exerting financial resources to hire the expert, as it did with the two medical professionals. 1 disclosure may still be permitted pursuant to Rule 37(c) if it is harmless. 2 The Court is unpersuaded by Killgore’s arguments regarding harmlessness. 3 First, Killgore argues that the new designation would be financially harmless because, had 4 the expert been designated previously, SpecPro would still have incurred the same cost to depose 5 Killgore’s expert and prepare rebuttal. Mot. 14. To the contrary, SpecPro argues that given the age 6 of this case, it would have to expend significant costs should the Court reopen expert discovery, 7 including “time and resources reworking Defendant’s trial strategy, taking expert depositions, 8 reviewing expert reports, and doing all of this while simultaneously preparing for a jury trial.” 9 Opp’n 10. The Court agrees with SpecPro. Given the proximity to trial and the significant work 10 that has been devoted to this case since the close of expert discovery in 2019, the Court finds that 11 reopening expert discovery at this time would cause financial harm to SpecPro. See Fidelity, 308 12 F.R.D. at 655 (finding that designating a new expert on the eve of trial, years after the close of 13 expert discovery and after summary judgment briefing, “would be extremely time intensive and 14 costly”). 15 Second, Killgore argues that SpecPro still has sufficient time to conduct discovery of its 16 new environmental expert witness before trial. Mot. 13. However, as the Court discussed above, 17 two months is likely not enough time to conduct the expert discovery requested here, particularly 18 given that Killgore has yet to disclose the expert witness it seeks to designate. Compare, e.g., 19 F.D.S. Marine, LLC v. Brix Mar. Co., 211 F.R.D. 396, 400 (D. Or. 2001) (extending expert 20 discovery two months before trial where the extension did not change the trial schedule given that 21 the moving party had already disclosed the expert and the responding party had received the 22 proposed expert’s disclosure statement). The Court therefore finds that reopening discovery at this 23 time would cause SpecPro harm considering the fast approaching trial date. 24 * * * 25 Therefore, the Court DENIES Killgore’s motion under Rules 26(a) and 37(c), as Killgore 26 has failed to establish a substantial justification for his delayed disclosure, and reopening discovery 27 on the eve of trial, over four years after expert discovery closed, would cause harm to SpecPro. 1 B. Rule 16(b) 2 Similarly, Killgore’s motion fails under Rule 16(b). To reiterate, under Rule 16(b), Killgor 3 must show good cause for his delayed discovery request, and the primary inquiry is diligence. 4 For all the reasons discussed above, the Court finds that Killgore has neither established 5 good cause nor diligence. Just as how a change in financial conditions and a witness’s perceived 6 || decreasing passion for the case does not establish substantial justification, neither does it establish 7 good cause. Killgore has also failed to show diligence in seeking to reopen discovery. Not only 8 did expert discovery close over four years ago,” but Killgore knew he was going to seek to reopen 9 expert discovery as early as July 2023 and failed to diligently file the present motion until 10 || December 2023. 11 Therefore, the Court also DENIES Killgore’s motion under Rule 16(b), as Killgore has 12 || failed to establish good cause or diligence in seeking to reopen expert discovery at this stage.

13 || IV. CONCLUSION

v 14 Based on the foregoing, Killgore’s motion to reopen discovery is DENIED. © IT IS SO ORDERED. 16 || Dated: February 12, 2024

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Z 18 EDWARD J. DAVILA 19 United States District Judge 20 21 22 23 24 25 26 . . The Court recognizes that the Ninth Circuit appeal in part caused the substantial lapse in time 27 between expert discovery closure and the present motion. Regardless, Killgore still had ample opportunity to raise this issue after the Ninth Circuit issued its order on October 20, 2022. 28 || Case No.: 5:18-cv-03413-EJD ORDER DENYING MOTION TO REOPEN EXPERT DISCOVERY