You are on page 1of 3

Case 1:17-cv-09001-CFL Document 170 Filed 10/29/18 Page 1 of 3

In the United States Court of Federal Claims


Sub-Master Docket No. 17-9001L

(Filed: October 29, 2018)

IN RE UPSTREAM ADDICKS AND


BARKER (TEXAS) FLOOD-
CONTROL RESERVOIRS

THIS ORDER APPLIES TO:

ALL UPSTREAM CASES

AMENDED SCHEDULING ORDER

Pending before the court is defendant United States’ motion to modify expert discovery
schedule, filed October 12, 2018. United States’ Mot. to Modify Expert Disc. Schedule (“Def.’s
Mot.”), ECF No. 159. The court deferred ruling on the United States’ (the “government”)
motion during the discovery conference held October 15, 2018, until after a further discovery
conference on October 26, 2018. At that time, however, the court did extend the close of fact
discovery by one week from October 19, 2018, to October 26, 2018. See Order Am. Schedule
Relating to Disc., at 1 (Oct. 15, 2018), ECF No. 160; see also Hr’g Tr. at 106:5-20 (Oct. 15,
2018), ECF No. 165. During the discovery conference on October 26, 2018, the parties also
addressed setting a date for the exchange of expert rebuttal reports, which was not specified
previously.

For the reasons discussed below, the government’s motion to modify the schedule for
expert discovery is largely denied, but it is granted in part.

The government’s motion proposes that the parties submit expert disclosures
sequentially, with the plaintiffs filing on October 31, 2018, and the government filing on January
31, 2019. Def.’s Mot. at 6. In the alternative, the government seeks a simultaneous exchange of
expert reports on January 31, 2019, with an exchange of rebuttal reports on March 28, 2019. Id.
at 7. The government argues that the current schedule prejudices its ability to analyze adequately
plaintiffs’ expert reports and to depose plaintiffs’ experts, given the complexity of this case. Id.
at 5.

Adoption of either of the government’s proposals would necessarily delay the trial,
currently scheduled to begin on February 19, 2019, in Houston. Plaintiffs oppose any
modification that would delay the scheduled start of the trial. See Hr’g Tr. at 14:2-7 (Oct. 15,
2018).
Case 1:17-cv-09001-CFL Document 170 Filed 10/29/18 Page 2 of 3

Additionally, the government’s motion notes that while expert discovery closes on
December 17, 2018, the current schedule does not specify a date within the expert discovery
period for rebuttal expert disclosures. Def.’s Mot. at 1; see also Upstream Pls.’ Status Report for
Oct. 26, 2018 Close-of-Disc. Conference, at 5 (“Pls.’ Disc. Report”), ECF No. 168. The
government’s motion would delay rebuttal reports until January 2019, at the earliest. Def.’s Mot.
at 7. During the discovery conference on October 26, 2018, plaintiffs represented December 3,
2018, would be appropriate for the exchange of rebuttal reports. See Hr’g Tr. (Oct. 26, 2018).
The government had no issues with December 3, 2018, apart from their pre-existing position that
the time for expert discovery is insufficient. See Hr’g Tr. (Oct. 26, 2018).1

Discovery commenced on March 1, 2018, providing nine months to undertake and


complete factual and expert discovery. See Order Reaffirming Schedule (Feb. 21, 2018), ECF
No. 69; see also Am. Order & Stipulations Regarding Disc. Procedure, at 1 (May 1, 2018), ECF
No. 113. Fact discovery closed on October 26, 2018, and is complete except for one carryover
situation.2 Disclosure of expert reports on the current schedule will advance each party’s
understanding of the opposing party’s case. And with the current schedule, the defendant has a
month to review two opposing expert reports and arrange for rebuttals if necessary. The parties
then have two weeks to depose any additional experts being called for rebuttal. This time
appears sufficient, and plaintiffs have also represented that they are willing “to work with the
[government] on any date between now and the trial as long as we keep the trial date.” Hr’g Tr.
at 104:16-23 (Oct. 15, 2018). Because the trial date has been known since mid-May, both parties
have had ample notice of the timing. See Hr’g Tr. 99:19-24 (May 16, 2018) (discussing a
February 2019 trial date); see also Scheduling Order, at 3 (May 25, 2018), ECF No. 122
(scheduling the trial for February 19, 2019). The court thus finds insufficient cause to delay the
onset of trial.

For these reasons, the court amends the Scheduling Order to set December 3, 2018, as the
date by which each party must submit any rebuttal expert reports. The parties shall adhere to the
amended schedule as follows for trial preparatory steps:

1
At the discovery conference on October 26, 2018, the plaintiffs’ represented that they
expect to provide the government with two expert reports. See Hr’g Tr. (Oct. 26, 2018). The
government represented that it expects to submit five expert reports. See Hr’g Tr. (Oct. 26,
2018).
2
Yet unscheduled is a RCFC 30(b)(6) deposition of the County Engineer for Harris
County. The government seeks that deposition and has represented that it will not duplicate its
previous 30(b)(6) depositions. The government also represents that the Engineer is only
available for a deposition in the middle of November. Hr’g Tr. (Oct. 26, 2018). Plaintiffs have
objected to this belated deposition, especially considering that the government appears to have
identified this source in January 2018, see Pls.’ Disc. Report, at 5, but that remaining deposition
should nonetheless go forward.

2
Case 1:17-cv-09001-CFL Document 170 Filed 10/29/18 Page 3 of 3

Event Deadline

Exchange of Expert Reports October 31, 2018

Exchange of Expert Rebuttal Reports December 3, 2018

Closing Discovery Conference at the Federal Courthouse December 10, 2018


in Houston, TX. (10:00 a.m. local)

Close of Expert Discovery December 17, 2018

Meeting of Counsel (App. A, ¶ 13) December 20, 2018

Plaintiffs’ Pre-Trial Memorandum, Exhibit List, and


December 24, 2018
Witness List (App. A, ¶¶ 14-16)

Defendant’s Pre-Trial Memorandum, Exhibit List, and


January 22, 2019
Witness List (App. A, ¶¶ 14-16)

Pretrial Conference at the Federal Courthouse in February 12, 2019


Houston, TX. (10:00 a.m. local)

Commencement of Trial at the Federal Courthouse in February 19, 2019


Houston, TX. (9:30 a.m. local)

It is so ORDERED.

s/ Charles F. Lettow
Charles F. Lettow
Senior Judge

You might also like