United States District Court, W.D. Washington
ORDER CONTINUING JURY TRIAL
Stanley A. Bastian United States District Judge
the Court is Defendant David Leon's Renewed Motion to
Take the Trial Perpetuation Deposition of David Easlick, or,
Alternatively, Motion for Trial Continuance, ECF No. 132.
Defendant renews his motion to take a trial perpetuation
deposition of Mr. Easlick, an expert on fraternity safety
policies and procedures whom Plaintiff originally noted, but
subsequently decided not to call.
fundamental issue is whether Defendant may present as his own
witness an expert originally retained by Plaintiff, over the
objection of Plaintiff, when Plaintiff seeks to reclassify
the expert as a consultative expert. The Court denied
Defendant's motion to do so originally, ECF No. 121, and
denied Defendant's motion for reconsideration, ECF No.
126, but granted leave for Defendant to make a renewed motion
or to move for a continuance to allow time for Defendant to
secure his own expert on fraternity safety.
has vigorously sought to ensure that a fraternity expert
would be available through this litigation. On April 27,
2018, Plaintiff identified Mr. Easlick as his proposed expert
on fraternity safety. The since-dismissed fraternity
co-defendant noted Mr. Easlick for a deposition, but withdrew
that notice of deposition on June 19, 2018, when they were
dismissed from the case. On July 2, 2018, discovery closed.
In early August, Defendant notified Plaintiff of his
intention to use Mr. Easlick as an expert, and Plaintiff
informed Defendant of his objection. The parties decided to
resolve this issue through motions in limine,
originally filed on August 13, 2018, and set for
consideration on August 30, 2018.
a continuance, those motions in limine were renoted
for consideration at a later date. Defendant then moved to
conduct a trial perpetuation deposition of Mr. Easlick, on
the assumption that he would be entitled to present Mr.
Easlick's testimony, but that Mr. Easlick would be unable
to provide it in person at trial. Shortly after that Motion
was filed, the case was transferred to this Court, and the
pending motions in limine were struck with leave to
refile consistent with this Court's Scheduling Order. A
ruling on the underlying question of whether Defendant would
be able to use Mr. Easlick only came on November 22, 2019,
more than a year after the original motions in
limine were set to be considered. None of this delay was
attributable to Defendant, who moved for reconsideration
promptly after this Court's first order denying leave to
depose Mr. Easlick.
Order denying reconsideration, this Court identified two
potential sources of prejudice resulting from allowing
Defendant to use Plaintiff's expert as his own: the
prejudice resulting from the proximity to trial; and the
prejudice resulting from Plaintiff being forced to
cross-examine a witness he originally selected and
identified. ECF No. 126. The Court was unable to weigh that
potential prejudice against the probative value of Mr.
Easlick's testimony. In its renewed Motion, Defendant
details the potential probative value of a fraternity expert,
and in the alternative, seeks a continuance to allow
Defendant to procure his own expert.
the Court denies again Defendant's request to call Mr.
Easlick as his own, late-noted expert, it grants the motion
for a continuance. A short continuance to allow Defendant to
procure an expert, provide an expert report to Plaintiff, and
make the expert available to Plaintiff for a deposition will
cure both potential sources of prejudice, and the potential
probative value of such expert testimony outweighs the delay
caused by such a continuance.
deciding whether good cause exists to warrant the grant of a
continuance, the Court considers: (1) the diligence of the
party seeking a continuance in preparing for trial; (2) the
usefulness to the movant of the continuance; (3) the
inconvenience a continuance would cause for the opposing
party, the witnesses, and the Court; and (4) the prejudice
that would result for the movant if the continuance is
denied. United States v. Flynt, 756 F.2d 1352, 1358
(9th Cir. 1985), amended, 764 F.2d 675 (9th Cir. 1985).
Court finds that Defendant has been diligent in seeking a
fraternity safety expert, that a 60-day continuance will
provide ample time for Defendant to procure such an expert,
that such a continuance will create a substantial
inconvenience to other participants or Plaintiff, and that
Defendant would be substantially prejudiced if unable to
present any expert testimony on fraternity standards.
IT IS ORDERED:
Defendant's Renewed Motion to Take the Trial Perpetuation
Deposition of David Easlick, or, Alternatively, Motion for
Trial Continuance, ECF No. 132, is GRANTED.
telephonic status conference will be held on February
4th, 2020, at 10:30 a.m. to discuss the timing of
discovery regarding this expert issue, and a new trial date.
Participants are to call the Court Conference Line at
1-888-204-5984, with the access code of 6790153. The Parties