Killgore v. Specpro Professional Services, LLC

Background

Aaron Killgore brought this action against SpecPro Professional Services, LLC, alleging that SpecPro terminated his employment as a government contractor after he reported that an Environmental Assessment report for a U.S. Army Reserve Command project was being prepared in a way he believed violated federal law.

Expert designations ended on October 15, 2019. Killgore designated an economist and a psychologist as retained experts and identified two medical professionals as non-retained experts. He also identified Melissa Russ and Oskar Burger as lay witnesses who would testify in part about their understanding of Environmental Assessments. The case had previously included claims under California Labor Code section 1102.5. The court had granted SpecPro partial summary judgment on two claims; the Ninth Circuit affirmed the ruling on the section 1102.5(c) claim and reversed and remanded the ruling on the section 1102.5(b) claim. The opinion states that the section 1102.5(b) whistleblower claim and a wrongful-termination claim remained for trial.

Killgore later moved to reopen expert discovery so that he could hire and designate an environmental expert. He argued that his financial circumstances had changed since 2019 and that Russ and Burger had shown decreasing enthusiasm for his case. Trial was set to begin on April 16, 2024.

Legal standards

The court considered two possible frameworks. Under Rules 26(a) and 37(c), a late disclosure may be allowed if the party establishes substantial justification or shows that the late disclosure would be harmless. Under Rule 16(b)(4), a party seeking to change the scheduling order must show good cause, with the main focus on whether the party acted diligently.

The court determined that Rule 16(b) was the more appropriate framework because Killgore was seeking to change the scheduling order by reopening discovery and adjusting the schedule to accommodate it. The court nevertheless analyzed the request under both frameworks.

Analysis

Under the Rules 26(a) and 37(c) framework, the court found that the relevant factors favored denying the motion. Although SpecPro knew Killgore intended to seek reopening, the proposed environmental expert remained unidentified and therefore would still be a surprise. With trial approximately two months away, SpecPro likely would not have enough time to respond without continuing the trial. The proposed schedule would also disrupt the trial schedule.

The court recognized that educating the jury about Environmental Assessments was important, but found that Killgore had already identified Russ and Burger to address that subject. Killgore did not provide facts showing that those witnesses had lost the ability to give the necessary information. The court also found that Killgore’s changed financial circumstances did not establish substantial justification, particularly because he had retained or identified other experts in 2019. It likewise found that the witnesses’ perceived lack of enthusiasm did not show that they were unable to testify about the environmental issues.

The court rejected Killgore’s argument that the late disclosure would be harmless. Reopening discovery would require SpecPro to spend time and resources revising its trial strategy, conducting expert depositions, reviewing reports, and preparing for trial. The court found that the proximity of trial and the age of the case meant that reopening discovery would cause financial and other harm to SpecPro.

Under Rule 16(b), the court found that Killgore had not shown good cause or diligence. Expert discovery had closed more than four years earlier. Although Killgore knew as early as July 2023 that he intended to seek reopening, he did not file the motion until December 2023. The court acknowledged that the Ninth Circuit appeal contributed to the delay but found that Killgore still had ample opportunity to raise the issue after the appellate decision on October 20, 2022.

Disposition

The court DENIED Killgore’s motion to reopen expert discovery. It denied the motion under Rules 26(a) and 37(c) because Killgore failed to establish substantial justification and reopening discovery would cause harm to SpecPro. It also denied the motion under Rule 16(b) because Killgore failed to establish good cause or diligence. The order did not decide the merits of the remaining whistleblower or wrongful-termination claims.