Kingston v. International Business Machines Corporation

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 SCOTT KINGSTON, CASE NO. C19-1488 MJP 11 Plaintiff, ORDER ON DISCOVERY MOTIONS 12 v. 13 INTERNATIONAL BUSINESS MACHINES CORPORATION, 14 Defendant. 15

16 This matter comes before the Court on Plaintiff’s Motion for Relief from Deadline and 17 Motion Exclude Expert Testimony (Dkt. No. 40) and Plaintiff’s Motion for Relief from Deadline 18 and Motion to Compel (Dkt. No. 42). Having reviewed the Motions, the Oppositions (Dkt. Nos. 19 44 and 45), Replies (Dkt. Nos. 46 and 47), and all supporting papers, the Court: (1) GRANTS the 20 Motion to Exclude Expert Testimony; and (2) RESERVES RULING on the Motion to Compel 21 pending in camera review of the disputed settlement agreement. 22 23 24 1 BACKGROUND 2 Plaintiff Scott Kingston brings retaliation, age discrimination, wage withholding, breach 3 of contract, and related claims against his former employer, International Business Machines 4 Incorporated (IBM). 5 As relates to the Motion to Compel, Kingston alleges that IBM retaliated against him for

6 complaining about the discriminatory treatment by IBM against an African American employee 7 under his management, Jerome Beard. Kingston alleges that he complained about IBM’s 8 decision to cap a commission due to Beard for a large sale, while IBM allowed a white 9 employee, “Nick,” to receive a full, uncapped commission for a similarly large sale. Beard filed 10 suit against IBM purportedly alleging similar claims to Beard based largely on the same facts. 11 Beard settled his suit against IBM, and Kingston now seeks a complete, unredacted copy of the, 12 settlement agreement. IBM has agreed to provide a copy of the settlement agreement for 13 “attorneys’ eyes only” with the amount of the settlement redacted. 14 As relates to the Motion to Exclude, Kingston seeks exclusion of William Skilling’s

15 expert report on Kingston’s efforts to mitigate his damages. IBM served this report as a rebuttal 16 to the expert damages prepared for Kingston by Erick West. In his opening report, West touched 17 on the issue of mitigation, but primarily to note that his damages calculations “assumed no past 18 or future mitigation employment for Mr. Kingston.” (Dkt. No. 41 at 9.) Skilling provided a 25- 19 page report detailing his opinion as to Kingston’s efforts and ability to mitigate his damages by 20 finding alternative employment. (Dkt. No. 41 at 25-50.) 21 22 23 24 1 ANALYSIS 2 A. Motion to Exclude 3 Kingston seeks an order excluding the report of William Skilling on the theory that is was 4 an untimely-disclosed expert report that IBM tries to masquerade as a rebuttal report. The Court 5 agrees.

6 Under Rule 26(a)(2)(D)(ii), a party may serve a rebuttal expert report “solely to 7 contradict or rebut evidence on the same subject matter identified by another party.” Rebuttal 8 reports must be tailored to respond directly to the subject matter of the opinions offered by the 9 opening expert’s report. See, e.g., Rodriguez v. Walt Disney Parks & Resorts U.S., Inc., 2018 10 WL 3532906, at *2 (C.D. Cal. July 2, 2018). 11 In his “rebuttal” report, Skilling provides a wide-ranging opinion on Kingston’s ability 12 and efforts to find employment. (Dkt. No. 41 at 25-50.) This opinion does not rebut any opinion 13 offered by Kingston’s expert, Erick West. On the topic of mitigation, West merely identified 14 mitigation as an issue on which he assumed Kingston was not and would not be employed. He

15 provided no opinion on whether Kingston could find employment. Skilling’s report thus does not 16 rebut West’s opinion, and West’s report did not open the door for Skilling’s report. 17 The Court finds exclusion of Skilling’s report proper. Skilling’s opinions go to IBM’s 18 mitigation affirmative defense that forms part of its case-in-chief. See Burnside v. Simpson 19 Paper Co., 66 Wn. App. 510, 529 (1992), aff’d, 123 Wn.2d 93 (1994). The report should have 20 been disclosed as an opening report, not as a rebuttal. See Fed. R. Civ. P. 26(a)(2)(D); Dkt. No. 21 29. While IBM offers Kingston the chance to retain an expert and depose Skilling, Kingston 22 convincingly argues that the late disclosure of Skilling would still be prejudicial. Kingston would 23 be forced to retain a mitigation expert on a short time frame and conduct expert discovery while 24 1 in the middle of briefing his opposition to IBM’s pending motion for summary judgment and 2 preparing for trial. The Court finds IBM’s failure to timely disclose Skilling’s report was not 3 harmless or substantially justified, and that exclusion of the report is proper under Rule 37(c)(1). 4 The Court GRANTS the Motion to Exclude. 5 The Court notes that IBM does not contest Kingston’s request to permit consideration of

6 the Motion after the deadline passed for discovery motions. The Court finds good cause to permit 7 this late filing. See Fed. R. Civ. P. 16(b). 8 B. Motion to Compel 9 1. The Motion is Timely 10 Invoking Rule 16(b), Kingston asks to be excused from failing to file his Motion to 11 Compel before the discovery motion deadline lapsed. “Rule 16(b)’s ‘good cause’ standard 12 primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth 13 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The Court may extend the deadline if the 14 moving party shows that it could not reasonably meet the deadline despite its diligence. Id.

15 Kingston has demonstrated reasonable diligence in pursuing this discovery. Kingston 16 served his discovery request for the settlement agreement the day before the discovery motion 17 deadline and received IBM’s response the day before discovery was to close. (See Dkt. No. 29; 18 Declaration of Toby Marshall ISO Motion to Compel ¶¶ 3-4 (Dkt. No. 43).) Kingston promptly 19 met and conferred and filed the Motion six days after the close of discovery. IBM argues that 20 Kingston’s counsel was aware of the settlement agreement earlier and failed to request it before 21 the close of discovery. But while Kingston may have been able to demand this document earlier, 22 the Court does not find this demonstrates a lack of diligence. The Court notes that Kingston 23 served the discovery request with sufficient time to permit a response and moved quickly to file 24 1 this motion—albeit a month after the deadline for discovery motions. The delay of one month 2 has not caused prejudice, and IBM has not argued as much. The Court finds good cause to 3 excuse the delay and considers the Motion. 4 2. The Settlement Agreement 5 Kingston seeks the unredacted production of the settlement agreement between Beard

6 and IBM. Kingston argues that the amounts and allocation of the settlement agreement are 7 relevant to his claims because they could show information about IBM’s discriminatory 8 treatment and its policy about capping commissions. The Court finds this argument of relevance 9 tenuous. But the Court cannot resolve the issue without a review of the settlement agreement 10 itself. The Court therefore ORDERS IBM to produce a copy of the Beard settlement agreement 11 for in camera review by no later than January 4, 2021. The Court will then assess whether the 12 agreement must be produced and, if so, on what terms. 13 CONCLUSION 14 The Court GRANTS Kingston’s Motion to Exclude Skilling’s untimely expert report that

15 cannot properly be considered a rebuttal report. The Court RESERVES RULING on Kingston’s 16 Motion to Compel, and will decide the issue after IBM produces the settlement agreement for in 17 camera review. IBM must produce the agreement to the Court by no later than January 4, 2021. 18 The clerk is ordered to provide copies of this order to all counsel. 19 Dated December 29, 2020. A 20 21 Marsha J. Pechman United States District Judge 22 23 24