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ORDER 

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

UNITED STATES COMMODITY

FUTURES TRADING COMMISSION,

Plaintiff,

v.

JAMES A. MAGGIO; TRADE RISK

MANAGEMENT, LLC (Washington); and

TRADE RISK MANAGEMENT, LLC 

(Oregon),

Defendants.

CASE NO. C05-5766RJB

ORDER DENYING PLAINTIFF’S

MOTION FOR EXCLUSION OF

DEFENDANTS’ EXPERT FOR

NONCOMPLIANCE WITH FRCP

26(a)(2) DISCLOSURES AND

GRANTING IN PART AND

DENYING IN PART JOINT

MOTION FOR ENLARGMENT

[SIC] OF MINUTE SCHEDULE

This matter comes before the Court on Plaintiff’s Motion for Exclusion of Defendants’

Expert for Noncompliance with FRCP 26(a)(2) Disclosures (Dkt. 19) and the Joint Motion for

Enlargment [sic] of Minute Schedule (Dkt. 23). The Court has considered the pleadings filed in

support of and in opposition to the motions and the file herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

According to the complaint, the defendants sell a stock market analysis service known as

Sigma Band Charting through an internet website and materially misrepresent the risk and profitmaking ability of the service. Dkt. 1 at 2. The complaint alleges that the defendants’ conduct

violates the Commodity Exchange Act and Commodities Futures Trading Commission

regulations. Id. at 7.

The deadline for disclosure of expert witnesses in this case was November 30, 2006. Dkt.

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The motion is labeled a “joint” motion and professes to be made on behalf of all parties, but the Court

notes that defendants’ counsel did not sign the motion. Chambers staff contacted defense counsel’s office and was

told that defendants’ counsel is in agreement with the motion.

ORDER 

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14. On that date, the defendants named an expert witness. Dkt. 19 at 2. On December 7, 2006,

the defendants provided the plaintiff with a one page report from that expert. Id. The plaintiff

contends that this report is inadequate and asks that the testimony of the defendants’ proffered

expert be excluded. Dkt. 19 at 3. As an alternative to exclusion of the defendants’ proffered

expert, the reply seeks a 45 day extension of discovery and other deadlines and an order requiring

the defendants to provide a complete expert report before the expert’s deposition is taken. Dkt.

22-1 at 7. Also pending before the Court is a Joint Motion for Enlargment [sic] of Minute

Schedule (Dkt. 23-1) seeking a 60 day continuance of all pretrial deadlines in light of the expert’s

report and the parties’ efforts to reach a settlement.1

II. DISCUSSION

A. SUFFICIENCY OF EXPERT REPORT

Disclosure of expert witnesses is governed by Federal Rule 26, which provides as follows:

(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other

parties the identity of any person who may be used at trial to present evidence under Rules

702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with

respect to a witness who is retained or specially employed to provide expert testimony in

the case or whose duties as an employee of the party regularly involve giving expert

testimony, be accompanied by a written report prepared and signed by the witness. The

report shall contain a complete statement of all opinions to be expressed and the

basis and reasons therefor; the data or other information considered by the witness

in forming the opinions; any exhibits to be used as a summary of or support for the

opinions; the qualifications of the witness, including a list of all publications authored by

the witness within the preceding ten years; the compensation to be paid for the study and

testimony; and a listing of any other cases in which the witness has testified as an expert at

trial or by deposition within the preceding four years.

(C) These disclosures shall be made at the times and in the sequence directed by the court.

Fed. R. Civ. P. 26(a)(2) (emphasis added). The defendants acknowledge that the expert’s report

provided on December 7 did not fully comply with Federal Rule 26 but contend that they have

since gathered the information required by Federal Rule 26 and are in the process of providing it

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ORDER 

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to the plaintiff. Dkt. 20 at 5-6. The defendants do not object to an extension of time to allow the

plaintiff to depose the defendants’ proffered expert. Id. at 6-7. In the reply, the plaintiff contends

that supplemental information provided by the defendants on December 22, 2006, is also

inadequate and fails to comply with Federal Rule 26. Dkt. 22-1 at 2. Specifically, the plaintiff

contends that the expert witness disclosure is deficient in three respects: 

First, the plaintiff contends that the defendants have not provided a complete statement of

all opinions to be expressed and their bases. Dkt. 22-1 at 1. The plaintiff contends that the report

does not offer an opinion as to whether the defendants’ service gives customers a 99% chance of

making money and is therefore incomplete. Id. Whether the proffered expert indeed has formed

such an opinion or intends to offer such an opinion is not apparent to the Court. What is clear,

however, is that such an opinion would likely exceed the scope of the expert’s report.

Second, the plaintiff contends that the report fails to identify data or other information

considered by the witness in forming an opinion. Dkt. 22-1 at 3. The plaintiff contends that if the

expert relied upon no data or other information, the testimony should be stricken as speculation

and conjecture. The plaintiff further contends that if the expert did rely on data or other

information, failure to disclose such information warrants exclusion of the expert testimony. It is

not yet clear whether the opinions contained in the expert report necessarily require consideration

of data or other information.

Finally, the plaintiff notes that the expert report is not accompanied by any exhibits. Dkt.

22-1 at 4. 

While the expert report may be sufficient to pass muster under Federal Rule 26, the parties

are apparently in agreement that the report does not fully encompass the proffered expert’s

anticipated testimony and that more time is needed to furnish a complete report and conduct a

thorough deposition after review of such report. The discovery deadline in this case is January 15,

2007. Dkt. 14. Trial is currently set for April 16, 2007. Dkt. 12. The parties request an extension

of the discovery and other deadlines by 60 days, but such an extension appears excessive in light

of the limited outstanding discovery and would likely jeopardize the trial date. The Court should

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ORDER 

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therefore extend the discovery deadline to February 15, 2007, and extend the dispositive motions

deadline to February 26, 2007. If this extension proves insufficient, the parties may seek another

extension if they so desire.

B. ADMISSIBILITY

In the reply, the plaintiff moves to exclude the testimony of the defendants’ expert on the

grounds that it is inadmissible under Federal Rule of Evidence 702. This request appears for the

first time in the reply. The defendants have not had an opportunity to respond, and the Court

therefore declines to address this portion of the reply. See Lentini v. California Center for the

Arts, Escondido, 370 F.3d 837, 843 n.6 (9th Cir. 2004) (declining to consider argument raised

first in the reply). The plaintiff may separately raise the issue of the admissibility of the defendants’

expert after February 15, 2007.

III. ORDER

Therefore, it is hereby

ORDERED that Plaintiff’s Motion for Exclusion of Defendants’ Expert for

Noncompliance with FRCP 26(a)(2) Disclosures (Dkt. 19) is DENIED. The Joint Motion for

Enlargment [sic] of Minute Schedule (Dkt. 23) is GRANTED IN PART AND DENIED IN

PART as follows: The discovery deadline is reset for February 15, 2007, and the dispositive

motions deadline is reset for February 26, 2007. 

The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel

of record and to any party appearing pro se at said party’s last known address.

DATED this 9th day of January, 2007. 

ARobert J. Bryan

United States District Judge 

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