United States District Court, W.D. Washington
ORDER DENYING RECONSIDERATION
STANLEY A. BASTIAN UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion for Reconsideration, ECF
No. 124. Defendant seeks reconsideration of this Court's
Order at ECF No. 121, denying Defendant's Motion for
Leave to Conduct Trial Perpetuation Deposition, ECF No. 105.
expert discovery, Plaintiff disclosed David Easlick as a
liability expert who would testify in support of
Plaintiff's claims against Alpha Epsilon Pi Fraternity
Inc. (AEP). ECF No. 105. Plaintiff listed Mr. Easlick on
Plaintiff's expert disclosures and provided an expert
report for Mr. Easlick. Id. AEP settled with
Plaintiff before the scheduled deposition occurred,
withdrawing their notice of deposition for Mr. Easlick. On
June 19, 2018, while the original discovery deadline was
open, AEP was dismissed Id. Defendant Leon did not
note Mr. Easlick for a deposition at that time. Discovery
closed on July 2, 2018. On August 6, 2018, Defendant Leon
informed Plaintiff that he was planning to call Mr. Easlick
as a witness. ECF No. 75. Plaintiff objected, on August 10,
informing Defendant that Plaintiff was no longer intending to
call Mr. Easlick due to AEP's dismissal, and thus
Plaintiff considered Mr. Easlick to be a consulting witness
under Fed.R.Civ.P. 26(b)(4)(D). Defendant filed a motion to
take a trial perpetuation deposition of Mr. Easlick, ECF No.
105, which this Court denied. ECF No. 121.
for reconsideration are generally disfavored and are
considered an “extraordinary remedy, to be used
sparingly in the interest of finality and conservation of
judicial resources.” Kona Enters., Inc. v. Estate
of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). A motion
for reconsideration “should not be granted, absent
highly unusual circumstances, unless the district court is
presented with newly discovered evidence, committed clear
error, or if there is an intervening change in the
controlling law.” 389 Orange Street Partners v.
Arnold, 179 F.3d 656, 665 (9th Cir. 1999).
for reconsideration “may not be used to raise arguments
or present evidence for the first time when they could
reasonably have been raised earlier in the litigation.”
Kona, 229 F.3d at 890. Whether or not to grant
reconsideration is committed to the sound discretion of the
court.” Navajo Nation v. Confederated Tribes and
Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046
(9th Cir. 2003).
root question is whether one party is entitled to call as an
expert witness a witness originally listed as a testifying
witness but then purportedly converted to a consulting
witness. The parties are divided as to what test applies to
this question - the exceptional circumstances test for
consulting witnesses, or the general rule of availability for
experts expected to testify. Courts are divided on this
question as well. See Blumhorst v. Pierce Mfg.,
Inc., No. 4:10-CV-00573-REB, at *2 (D. Idaho Oct. 7,
2014) (noting different approaches.)
courts and scholars have inferred a general principle of
“unfairness” from the Advisory Committee's
Notes to Rule 26, stating that “it is unfair for one
party, without expense, to obtain information from an expert
who has been hired by the opposing party for an agreed
compensation.” Jack H. Friedenthal, Discovery and
Use of an Adverse Party's Expert Information, 14
Stan.L.Rev. 455, 472 (1962). Based on this principle, courts
have denied opposing parties the opportunity to convert an
opposing party's re-designated consulting witness absent
“exceptional circumstances, ” using the general
test for consulting witnesses. See Ager v. Jane C.
Stormont Hosp., 622 F.2d 496, 502 (10th Cir.1980)
(defining the unfairness rule as a rule “designed to
prevent a party from building his own case by means of his
opponent's financial resources, superior diligence and
more aggressive preparation”).
courts and scholars hold that “once an expert is
designated, the expert is recognized as presenting part of
the common body of discoverable, and generally admissible,
information and testimony available to all parties.”
See House v. Combined Ins. Co., 168 F.R.D. 236, 245
(N.D. Iowa 1996), accord Wright & Miller,
Federal Practice and Procedure: Civil § 2032.
Thus, they hold that “designation of an expert as
expected to be called at trial, pursuant to Fed.R.Civ.P.
26(b)(4)(A), even if that designation is subsequently
withdrawn, takes the opposing party's demand to depose
and use the expert at trial out of the ‘exceptional
circumstances' category of Rule 26(b)(4)(B), ” and
use a discretionary standard. House, 168 F.R.D. at
245. The standard is a “balancing” test,
weighing the probative value of the expert's potential
testimony against the prejudice and unfairness that would
arise from one party another's decision to not call an
either of these tests, Defendant has not met the high bar for
reconsideration. Under the balancing test, the Court does not
find that denial of the motion was clear error. There are at
least two potential sources of prejudice, one arising from
the proximity to trial, and the other from Plaintiff being
placed in the awkward position of cross-examining their own
expert. See Ferguson v. Michael Foods, Inc., 189
F.R.D. 408 (D. Minn. 1999). The Court lacks the necessary
briefing to determine the probative value of Mr.
Easlick's potential testimony.
the exceptional circumstances test, the Court finds that
there are not exceptional circumstances to allow Defendant to
depose a consulting witness. During the year-and-a-half that
this issue was unresolved Defendant did not note Mr. Easlick
for a deposition after AEP's dismissal, and took no steps
to procure their own expert on this issue or move for an
extension of the deadline for expert disclosure and
discovery. With a trial date quickly approaching, the time
for noting an expert has long since passed.
Court therefore denies the Motion for Reconsideration.
However, the Court would entertain and allow the filing of a
renewed motion with a showing of the relevancy of Mr.
Easlick's potential testimony ...