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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

CHARLES MARTINEZ,

NO. CIV. S-04-1446 LKK/PAN

Plaintiff,

v. O R D E R

FIRST NATIONAL INSURANCE

COMPANY; and SAFECO INSURANCE

COMPANY OF AMERICA,

Defendants.

 /

On June 24, 2004 plaintiff Charles Martinez filed suit against

First National Insurance Co. alleging breach of an insurance

contract, bad faith and negligence relative to a claim for

vandalism resulting in injury to plaintiff’s property. The court

issued a status order on October 20, 2004 indicating that discovery

would close on October 18, 2005 and that experts should be

designated, and their reports filed, by August 19, 2005. Defendant

First National disclosed its expert, Paul Hamilton, by the

specified date but failed to include the written report required

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by this court’s status order and by Rule 26(a)(2)(b) of the Federal

Rules of Civil Procedure. The expert report was not filed until

September 30, 2005. Plaintiff now moves to strike defendant’s

expert witness and report on the grounds that the report was

disclosed after the mandatory deadline established by this court.

This court’s Status Order filed on October 20, 2004 provided

that:

all counsel are to designate in writing and file with

the court and serve upon all other parties a final list

of the names of all expert that they propose to tender

at trial not later than sixty (60) days before the close

of discovery herein established. Accompanying the

designation shall be the written report specified in

Fed. R. Civ. P. 26 A2B. All experts so designated are

to fully prepared to render an informed opinion at the

time of designation so that they may fully participate

in any deposition taken by the opposing party. 

Plaintiff contends that the report should be stricken because

it was filed over a month after the date it was due and it thus did

not allow sufficient time for the plaintiff to “research and

investigate the expert’s written report and related information and

then schedule and prepare for deposition” prior to the cut-off of

discovery. Defendants respond that they had good cause to be tardy

in their filing because the matter had been referred to the

Voluntary Dispute Resolution Program and thus the parties did not

conduct discovery as they were “conserving resources.” They

further contend that plaintiff has failed to establish any

prejudice by the late filing. They base the lack of prejudice upon

the fact that the plaintiff never scheduled the expert’s

deposition, even after the report was disclosed, nor did the

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plaintiff ever meet and confer with defendants counsel with respect

to his need to have time to conduct research, etc. 

The court’s status order starts out with the following

reminder:

READ THIS ORDER CAREFULLY. IT CONTAINS IMPORTANT DATES

WHICH THE COURT WILL STRICTLY ENFORCE AND WITH WHICH ALL

COUNSEL AND PARTIES MUST COMPLY. A FAILURE TO COMPLY

WITH THE TERMS OF THIS ORDER MAY RESULT IN THE

IMPOSITION OF MONETARY AND ALL OTHER SANCTIONS WITHIN

THE POWER OF THE COURT, INCLUDING DISMISSAL OR AN ORDER

OF JUDGMENT.

Defendant apparently believes that these deadlines are not all

that important if defendant has other things going on, and, even

worse, defendant argues that plaintiff has an obligation to remind

the defendant of its obligation to comply before plaintiff can

fairly seek an appropriate remedy.

Rule 37 provides that “A party that without substantial

justification fails to disclose information required by Rule 26(a)

. . . is not, unless such failure is harmless, permitted to use as

evidence at a trial, at a hearing, or on a motion any witness or

information not so disclosed.” Fed. R. Civ. P. 37. The

justification provided by the defendant is simply not substantial

enough to overcome their duty to comply with the court’s order.

The court did not put on hold the deadlines in the status order

while the dispute resolution process was pending and thus all the

parties had an obligation to continue to comply with those dates.

The fact that the defendants retained Mr. Hamilton late is not the

fault of the court or the plaintiffs. Nor have defendants shown

how their failure to provide the expert report was harmless. 

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Plaintiff has the right to the time the court provided for research

and investigation prior to the close of discovery. The court

provides sixty days to schedule and prepare for depositions of

experts and defendants’ late filing allowed for less than a month.

Accordingly, plaintiff’s motion to strike the expert is

GRANTED.

IT IS SO ORDERED. 

DATED: October 25, 2005

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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