Bozick v. Conagra Foods, Inc.
- Lewis Liman
- 1:19-cv-04045
- U.S. District Court · Southern District of New York
- 4
In Bozick v. Conagra Foods, Judge Liman granted more discovery time but denied Conagra’s request to exclude Bozick’s expert.
The ruling affected Bozick’s expert discovery and ConAgra’s opportunity to conduct additional expert discovery and prepare rebuttal reports. It also required both parties to revise their case-management plan and scheduling order.
What happened
In Bozick v. Conagra Foods, Conagra said it did not receive Gregory J. Cahanin’s fire-cause-and-origin expert reports until April 12, 2021, during another expert’s deposition. Conagra said the reports had supposedly been emailed in November but never reached its lawyers.
Conagra asked the court to exclude the expert as untimely or, alternatively, to allow a 30-day extension for the expert’s deposition and rebuttal reports. The letter said Conagra’s lawyers had not been told about the expert during several months of expert discovery and scheduling discussions.
Judge Lewis J. Liman granted the request for a 30-day discovery extension and denied the request to exclude the plaintiff’s expert. He also directed the parties to submit a revised case-management plan and scheduling order by April 23, 2021.
The detailed version
- Bozick v. Conagra Foods, Inc. · No. 1:19-cv-04045
- Lewis Liman
- Apr. 19, 2021
Background
The filing concerns expert discovery in Grace Bozick’s case against ConAgra Foods, Inc. Conagra stated that it received four expert disclosures from Bozick in early November 2020: disclosures for Thomas W. Eagar, William Kitzes, and Robert Tornambe on November 2, and Lester Hendrickson on November 3. Conagra said the parties proceeded as though those were Bozick’s experts, and that Bozick’s counsel did not identify Gregory J. Cahanin during later communications about expert discovery, expert schedules, reliance materials, or Conagra’s own expert’s report and deposition.
According to Conagra, Eagar referred during an April 12, 2021 deposition to a report by Cahanin. Bozick’s counsel then said the report had been emailed on November 2, 2020, from a personal email address. Conagra’s lawyers said they never received it. The filing stated that the email appeared to contain two large attachments, that counsel received a bounce-back message concerning one recipient, and that counsel did not follow up with either recipient. The reports were later transmitted through the video-conferencing platform being used for the deposition.
Arguments and requested relief
Conagra argued that electronic service was ineffective under Federal Rule of Civil Procedure 5(b)(2)(E) because the sender learned, or should have learned, that the email did not reach the recipients. It therefore argued that the expert disclosure was late under Rule 26(a)(2)(D) and the court’s scheduling order. Conagra requested that the court exclude the expert. Alternatively, it requested a 30-day extension of the schedule so it could depose the expert and obtain rebuttal reports from its own experts.
The filing cited the court’s March 30, 2021 order, which stated that discovery should end and the case should proceed on the theories disclosed by November 2, 2020. The filing also cited other cases concerning late or ineffective electronic service. These arguments were made by Conagra in its letter; the provided order does not separately explain the court’s reasoning.
Ruling
Judge Lewis J. Liman granted the request for a 30-day extension of discovery to address the expert discovery identified in Conagra’s letter. He denied the request to exclude the plaintiff’s expert. The order also directed the parties to submit a proposed revised Case Management Plan and Scheduling Order by April 23, 2021.
The letter identifies the expert as “Gregory J. Cahanin,” while the order refers to the plaintiff’s expert as “Gregory J. Kahanin.” The provided text does not explain whether this is a spelling discrepancy or a different name.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.