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26 ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

BRIAN R. CARTMELL, et al.,

Plaintiffs,

v.

VERISIGN, INC.,

Defendant.

CASE NO. C02-2411C

ORDER

This matter comes before the Court on the Plaintiffs’ Motion for Relief From the Expert

Disclosure Deadline and Ten Deposition Limit (Dkt. No. 108). Having reviewed the materials submitted

by the parties and finding oral argument is unnecessary, the Court GRANTS the motion for the reasons

set forth below.

I. Relief from the Expert Disclosure Deadline 

A. Background 

On November 5, 2004, following the resolution of an appeal, the parties filed a “Stipulation and

[Proposed] Order Lifting Stay and Revising Case Schedule,” which included deadlines to govern the

case’s revised schedule. (Dkt. No. 44.) According to this stipulation, the deadline for the disclosure of

expert testimony under Fed. R. Civ. P. 26(a)(2) was listed as June 1, 2005. (Id. 2.) On November 8,

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1

 The Court hereby GRANTS VeriSign’s motion for an extension of time (Dkt. No. 111), and

finds that both VeriSign’s opposition brief and Plaintiff’s reply brief were timely filed. 

ORDER – 2

2004 the Court ruled on the parties’ stipulation and proposed order by entering a Minute Order lifting the

stay. (Dkt. No. 45.) The Court’s Order contained dates scheduling when trial is to start, when mediation

is to be completed, when pretrial orders are to be lodged, and when trial briefs must be submitted. (Id.) 

The Minute Order did not expressly adopt the parties’ stipulated deadlines, and some of the deadlines in

the Minute Order differed from the parties’ proposed deadlines. Specifically, the proposed order set the

mediation deadline as December 15, 2005 while the Court’s Order set it as October 1, 2005; and the

proposed order set the deadline for trial briefs as March 15, 2005 while the Court’s Order set the

deadline as March 3, 2005.

On July 15, 2005, Plaintiffs identified their proposed experts and provided the experts’ curricula

vitae to VeriSign’s counsel. (Pls.’ Mot. 4.) It was not until August 9, 2005 that VeriSign informed

Plaintiffs of its position that the deadline for disclosure of expert testimony was June 1, 2005, and that

Plaintiffs were therefore barred from presenting expert testimony under Rule 26(a)(2). (Id. 4–5.) The

parties conferred on August 18, 2005 and discussed the relief requested by the Plaintiffs. (Id. 8.) Despite

concessions by the Plaintiffs on other deadlines, the parties could not agree to resolve this dispute.1

 

B. Analysis 

Plaintiffs first request relief from the June 1, 2005 expert testimony disclosure deadline asserted

by VeriSign. Plaintiffs argue that the expert testimony disclosure deadline is not until January 10, 2005,

which is ninety days before trial as provided in Rule 26(a)(2)(C). Fed. R. Civ. P. 26(a)(2)(C). VeriSign

responds that the Court intended the pretrial schedule to be set by the schedule in the parties’ stipulation

and proposed order. VeriSign’s assertion is ill-founded for several reasons. 

First, the November 8, 2004 Order does not specifically adopt the parties’ deadlines listed in their

stipulation and proposed order. (Nov. 8, 2004 Minute Order 1.) The only deadlines the Court

referenced in its Order pertained to the start of trial, the completion of mediation, the lodging of pretrial

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26 ORDER – 3

orders, and the submission of trial briefs. (Id.) The Court did not explicitly adopt the parties’ stipulated

deadlines; therefore, those deadlines are inoperative. Caraballo v. Lykes Bros. S.S. Co., 212 F. Supp.

216, 221 (E.D. Pa. 1962) (stipulations made without approval of the court are ineffective). 

Second, the Court did not adopt the discovery schedule set out in the parties’ proposed order by

mere inference. In its May 19, 2005 Order denying VeriSign’s motion to compel, the Court noted that

the deadline for completing discovery is in December 2005. (May 19, 2005 Order 3.) VeriSign argues

that because the proposed order submitted by the parties listed the deadline for completing discovery as

December 15, 2005, the Court’s reference to this deadline shows it has adopted the parties’ schedule. 

However, this reference by the Court does not evidence its adoption of the parties’ schedule because

under Local Rule 16(f), unless otherwise ordered by the court, discovery is to end 120 days before trial. 

Trial is set for April 10, 2006, so the discovery deadline under Local Rule 16(f) is in December 2005. 

Therefore the Court’s reference to discovery ending in December 2005 does not evidence its inferential

adoption of the parties’ proposed schedule. 

Third, the Court did not adopt the parties’ schedule by acting consistent with it. In fact, several

of the deadlines set by the Court differed from those in the parties’ schedule: for example, the parties

stipulated that mediation was to be held no later than December 15, 2005 (Stip. and Prop. Order 2), while

the Court ordered mediation to be completed by October 21, 2005 (Nov. 8, 2005 Order 1); and the

parties stipulated that trial briefs would be due by March 15, 2006 (Stip. and Prop. Order 2), while the

Court ordered trial briefs to be filed by March 3, 2005 (Nov. 8, 2005 Order 1). Cf. FDIC v. Stahl, 89

F.3d 1510, 1520–21 (11th Cir. 1996) (district court effectively adopted pretrial stipulation by conducting

trial proceedings consistent with it). Therefore, because the Court set deadlines different from those in

the parties’ stipulation and proposed order, the Court could not have implicitly adopted the parties’

schedule by acting consistent with it. 

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26 ORDER – 4

Finally, VeriSign has not alleged that it will be prejudiced by setting the expert disclosure deadline

as January 10, 2005. (Pls.’ Reply 3–4.) There is still ample time between now and the December

discovery cut-off for VeriSign to depose Plaintiffs’ expert witnesses.

For these reasons the Plaintiffs’ motion for relief from the expert testimony deadline asserted by

VeriSign is GRANTED. The Court orders the disclosure of expert testimony under Rule 26(a)(2) to be

completed by January 10, 2006, ninety days before trial. 

II. Relief from Ten Deposition Limit

Plaintiffs next request relief from the limit of ten depositions. Under Rule 30, a party must obtain

leave of the court to take more than ten depositions, which shall be granted to the extent consistent with

the principles stated in Rule 26(b)(2). See FED. R. CIV. P. 30(a)(2)(A). Under Rule 26(b)(2), discovery

shall be limited if the court determines that (1) the discovery sought is unreasonably cumulative or

duplicative, or is obtainable from some other source more convenient, less burdensome, or less expensive;

(2) the party seeking discovery has had ample opportunity in discovery to obtain the information sought;

or (3) the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P.

26(b)(2)

VeriSign argues that a substantial burden will be imposed upon it by allowing Plaintiffs to take

five additional depositions. (Def. Opp’n 12–13; Neeleman Decl. ¶¶ 15 and 18.) However, Plaintiffs will

burdened just the same, if not more so than VeriSign in traveling to attend the additional depositions. 

Plaintiffs’ willingness to depose these witnesses in light of the travel burdens shows that at this stage the

burden of the additional depositions is not believed to outweigh their benefit. The additional witnesses’

relevance and possession of discoverable information is further evidenced by VeriSign’s initial disclosure

designating a total of eleven witnesses likely to have discoverable information (Pls.’ Mot. 8.), and

Plaintiffs’ belief that six additional witnesses may have discoverable information essential to the outcome

of this case. (Id. 9–10.) 

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26 ORDER – 5

Under these circumstances, the Court finds that the additional depositions can be taken consistent 

with Rule 26(b)(2) because the additional depositions “will not result in ‘unreasonably cumulative or

duplicative’ testimony” or “an undue burden to VeriSign.” For all of the above reasons, Plaintiffs’

request to take five additional depositions is GRANTED. 

In sum, it is hereby ORDERED:

1. Plaintiffs’ request for relief from the expert testimony disclosure deadline asserted by the

Defendant is GRANTED. 

2. Disclosure of expert testimony as required by Fed. R. Civ. P. 26(a)(2) shall be completed

by January 10, 2006. 

3. Plaintiffs’ request to take five additional depositions is GRANTED. 

SO ORDERED this 25th day of October, 2005.

A

UNITED STATES DISTRICT JUDGE

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