Smith v. The Pasha Group

Background

The parties presented several discovery disputes shortly before trial. The court held a hearing on February 14, 2023. The order addressed ECF Nos. 108, 113, and 120.

Sanctions motion

Harvey Smith had filed a motion for sanctions under Federal Rule of Civil Procedure 37 based on discovery problems. Because of the short time before trial, and because Smith agreed to defer the sanctions motion until after trial, the court terminated the current motion. The court authorized Smith to notice a hearing later by filing a one-page notice cross-referencing the earlier motion and following the ordinary five-week schedule.

Reopening discovery

Smith sought to reopen fact discovery because the defendants had produced documents after the close of fact discovery. The court held that Smith had been reasonably diligent: he moved to compel within seven days after fact discovery closed, the requested discovery related to earlier document requests, and the need for additional discovery became apparent only after the defendants’ later production. The court therefore found good cause to reopen discovery.

The court allowed limited additional discovery before trial. Captain Kluck was to testify at trial, and either Ed Washburn or Greg Johnson was also to testify at trial. If Tia Anthony did not testify in person, Smith could depose her remotely for up to four hours.

Expert discovery

Smith sought to designate Jeremy Bauer as a new expert on physics and biomechanics based on a conditional survey report that concerned changes to the ship’s deck after the alleged injury. The court concluded that the report and related photographs were relevant, but that there was not enough time before trial for Bauer to update his opinions, for the defendants to respond, and for the parties to complete expert depositions. The court did not allow Smith to designate Bauer as a new expert. It stated that the trial court would address the pending challenge to the qualifications of Smith’s existing expert, Joseph Derie.

The court allowed a subpoena to Safinah Group for higher-quality versions of the photographs used in the survey report. Existing experts could supplement their trial testimony regarding the report and photographs. Any supplemental declaration was due within three business days, and the parties could take supplemental depositions of the existing experts for up to two hours on February 24, 2023, if necessary.

Captain Kluck’s personal email

Smith sought emails from Captain Kluck’s Gmail account from November 7, 2020, through January 20, 2021, that were relevant to prior discovery and document requests. The court found the emails relevant but concluded that Smith could have raised the issue earlier. It denied the late request for this discovery and stated that Smith could address the issue through cross-examination of Captain Kluck at trial.

Disposition

The court terminated the current sanctions motion, allowed Smith to notice it later, allowed limited reopening of discovery, authorized the subpoena for the photographs, established limited supplemental discovery involving existing experts, did not allow a new expert or the requested personal-email discovery, and stated that these rulings disposed of ECF Nos. 108, 113, and 120. The order concerned discovery and did not decide the underlying claims.