Tuesday, July 03, 2007

Waiting for Godot (to disclose expert witnesses)

I was asked the other day, what does "unreasonable" mean, which prompted the learned response -- "it depends." Judge Skretny recently provided some insight into what is not good cause (i.e., what is unreasonable) in terms of seeking to re-open discovery and extend the deadline for expert disclosure after 2 years (give or take).

What is not good cause? Waiting 2 years after the expiration of expert deadlines and 1.5 years after the close of discovery -- and over a year after a Magistrate Judge expressly ruled in court that expert disclosure deadlines had passed and the opportunity to disclose experts had been waived by the parties -- before first seeking leave to extend the deadline for expert disclosure. Judge Skretny ruled that under circumstances approximating those described above, no good cause was shown -- thus denying a motion to revise a scheduling order under Rule 16(b) of the Federal Rules of Civil Procedure.

ABL successfully opposed plaintiff's request to re-open discovery and disclose an economist that was purportedly not disclosed earlier because plaintiff wanted to "wait and see" what happened with defendant's summary judgment motion before incurring the expense of an expert. The Court noted that plaintiff's "decision to be in for a penny, rather than a pound" was a "strategic gamble [that she] must now live with."


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