The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge
Before the Court is Plaintiff's Motion to Strike Certain of Defendant's Witnesses , Defendant's Response , and Plaintiff's Reply .
On June 15, 2005, the Court held a scheduling conference and entered various scheduling deadlines pursuant to Rule 16(b). That Scheduling Order  established a deadline of December 1, 2005 for Defendant to disclose experts and tender expert reports. That same scheduling order set a deadline of January 31, 2006 for the close of fact discovery. On November 1, 2005, the deadline for Defendant to disclose expert witnesses was extended by the Court to February 3, 2006. On January 17, 2006, the fact discovery deadline was extended by the Court to close on February 28, 2006.
According to Plaintiff's Motion to Strike , Defendant disclosed four new fact witnesses and two expert witnesses on February 21, 2006. Plaintiff complains the experts are disclosed in an untimely fashion and must be stricken. Plaintiff argues the late disclosure of the four "fact" witnesses, only seven days before the close of fact discovery, effectively prevents Plaintiff from any meaningful opportunity to depose the newly disclosed witnesses and asks that the fact witnesses also be stricken.
Defendant Titan argues in its Response  that various "understandings" between counsel concerning discovery require the Court to deny Plaintiff's Motion to Strike and should cause the Court to grant various extensions of discovery to allow fact and expert discovery to be revisited.*fn1 Titan's argument is conclusory and is without the support of correspondence and/or e-mails between opposing counsel.
Federal Rule of Civil Procedure 16(b) directs the Court to enter a scheduling order that limits the time to complete various aspects of each civil case.*fn2 That same rule states that the schedule established by the Court "shall not be modified except upon a showing of good cause . . . ."*fn3
Rule 26(a)(2)(C) states that disclosures of expert witnesses shall be made at the time and in the sequence directed by the court. Under Rule 16(f), if a party or a party's attorney fails to obey a scheduling order, the court may make such orders with regard thereto as are just. Under Rule 37(c), the court can prevent the use at trial of any witness who is not properly and timely disclosed.
The schedule for fact discovery and expert discovery was clearly set forth by the Court in this litigation. There should have been no mistake by the parties as to what deadlines control. When there is a clear violation of Rule 26 as it pertains to the disclosure of expert witnesses, the court has in its discretion, the sanction of precluding the expert witness from testifying.
See Salgado v. General Motors Corp., 150 F.3d 735, 742 (7th Cir., 1998). See also Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir., 1996). Herein, the Court must review the late disclosure to see if it was either justified or harmless. Titan has established neither of these mitigating circumstances herein.
The Court's responsibility herein is to judicially exercise its discretion while following the dictates of the above cited Federal Rules of Civil Procedure. The Court should follow and enforce the deadlines plainly set out in the various court orders and minute entries in this cause unless good cause and due diligence is shown to deviate therefrom. The reasons offered by Defendant for its failure to timely designate expert witnesses are weak at best. Defendant was aware of the February 3, 2006 deadline since November 1, 2005. That deadline came and went without 1) any timely disclosure of experts by Defendant, 2) a timely service of expert reports, or 3) a timely motion to extend the expert disclosure deadline. The fact discovery "problems" might explain Defendant's inability to timely disclose experts, but standing alone does not establish good cause for taking no action before February 3, 2006. The discovery "problems" should have caused Defendant to foresee a need to move the Court prior to the February 3, 2006 deadline for an extension of their expert disclosure date. Defendant should have re-evaluated its expert disclosure deadline much earlier in the case and complied with the requirements of Local Rule 6.1 which requires: "Any party seeking an extension of time for any reason must file a motion for such extension before the original deadline. Motions filed out of time will be denied, unless the presiding judge determines that such denial would create a substantial injustice."
Under the above chronology of facts, and the reasons stated by Defendant, the Court cannot and does not find that there was an agreement between the parties to allow the late disclosure of Defendant's expert witnesses. Wherefore, Plaintiff's motion to strike the late-filed expert witnesses as requested by Plaintiff in it's motion  is allowed.
Focusing now on the four fact witnesses Titan disclosed on February 21, 2006, the Court's focus is whether or not the disclosure (within seven days of the close of fact discovery) causes such prejudice to Plaintiff that the witnesses should be stricken. The Court notes that the dispositive motion deadline herein does not run until June 1, 2006. The Court, in lieu of striking the four fact witnesses, allows a period of time until May 19, 2006 for the four fact witnesses to be telephonically deposed. All costs for the four telephonic depositions to be paid by Titan. Plaintiff, however, remains responsible for the ...