The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge,
Before the Court are three discovery motions: defendant's Motion to Compel Discovery Responses or Preclude Plaintiffs from Using Certain Evidence, May 22, 2012, ECF No. 351; defendant's Motion to Strike, Or, In the Alternative, For Extension of Time and Leave to Designate Rebuttal Expert(s), June 29, 2012, ECF No. 365; and plaintiffs' Non-Consent Amended and Re-Stated Motion to Compel Production of the Release Discrepancy Database, June 25, 2012, ECF No. 362. Upon consideration of the motions, the oppositions and replies thereto, and the record herein, the Court will deny in part and grant in part defendant's Motion to Compel  and deny defendant's Motion to Strike . The Court will also deny defendant's Motion in the Alternative for Extension of Time and Leave to Designate Rebuttal Expert(s) . The Court will reopen discovery for 28 days to allow the depositions of plaintiffs' expert witnesses, instead of the 74 days requested by the defendant. Furthermore, the Court will grant in part and deny in part plaintiffs' Motion to Compel .
This case concerns the District of Columbia Department of Corrections' ("DOC") practice of overdetaining and strip searching its inmates. The plaintiffs, former inmates subject to overdetentions and strip searches, filed a class action against the District of Columbia ("District") over six years ago. Compl., Feb. 23, 2006, ECF No. 1. This long-running case is virtually identical to a prior case before this Court, Bynum v. District of Columbia, Civil Action No. 02-956 (RCL) (filed in 2002). Given this extensive history, the Court assumes familiarity with its prior opinions, which set forth the background of this class-action litigation in greater detail. See, e.g., Barnes v. District of Columbia, 793 F. Supp. 2d 260, 265 (D.D.C. 2011) (ECF No. 307) (discussing background of case up to summary judgment stage).*fn1
In June 2011, the Court granted plaintiffs' Motion for Summary Judgment as to the District of Columbia's liability for any overdetentions at its jails, throughout the class period, caused by the DOC's application of the so-called "10 p.m. cut-off" rule, and all overdetentions occurring from September 1, 2005 to December 31, 2006. Id. at 286. The Court granted the District's Motion for Summary Judgment as to overdetentions occurring from February 26, 2008 forward that were not caused by the DOC's enforcement of the 10 p.m. cut-off rule. Id. The Court denied both parties' motions as to the District's liability for overdetentions that occurred from January 1, 2007 to February 25, 2008 (the "disputed" or "Trial Period") that were not caused by the DOC's enforcement of the 10 p.m. cut-off rule. Id. at 286 & n.18. The District's liability for that subset of overdetentions remains undetermined pending trial.
Following these rulings, the Court ordered limited, additional discovery in December 2011. See Barnes v. District of Columbia, 278 F.R.D. 14, 18 (D.D.C. 2011) (ECF No. 328). The parties' competing trial proposals each assumed the need for additional fact and expert discovery prior to trying the remaining liability issues, and the Court-responding to and agreeing with the District's concerns-restricted that discovery "to such...as will assist the parties in determining how many overdetentions occurred during the disputed period." Id. The Court made clear that it would not permit further discovery on "process" and related issues. Id. at 23. The Court ordered the parties to update their expert reports by February 10, 2012, and ordered that this additional discovery period would close on April 6, 2012. Id.
Between January 13, 2012 and March 6, 2012, the District served four sets of interrogatories and requests for production on plaintiffs, seeking information about plaintiffs' contentions regarding the number of overdetentions during the Trial Period. Plaintiffs' responses to two of those sets of interrogatories, as well as the scope of an upcoming deposition of plaintiffs' statistical expert, were in dispute. These disputes were rooted in a disagreement as to the proper scope of discovery. The District contended that the only overdetentions that are relevant to the upcoming liability trial are those not caused by the 10 p.m. cut-off rule. Consequently, the District believed that plaintiffs needed to determine the number of 10 p.m. cut-off rule overdetentions during the Trial Period so that those overdetentions could be excluded. Plaintiffs argued that the plain language of the Court's December 2011 Order limited additional discovery to the number of overall overdetentions during the Trial Period, without specifying that this number had to exclude overdetentions caused by the 10 p.m. cut-off rule. See Barnes v. District of Columbia, 281 F.R.D. 53, 55 (D.D.C. 2012) (ECF No. 336) (summarizing parties' discovery disputes).
On April 3, 2012, the Court resolved these discovery disputes in a Memorandum Opinion.*fn2 Barnes, 281 F.R.D. 53. The Court considered both parties' positions "substantially justified," id. at 56 n.2, but ultimately agreed "with the District that the purpose of the Court's December 2011 discovery Order was to permit the parties to ascertain the number of disputed overdetentions during the Trial Period." Id. at 55. To this end, the Court ordered the plaintiffs to answer the District's Interrogatory 1 (seeking overall number of overdetentions during Trial Period) and Interrogatory 2 (seeking number of overdetentions during Trial Period caused by 10 p.m. cut-off rule). Id. The Court "recognize[d] that ordering a party to create a document that doesn't exist or to perform analyses it hasn't yet performed is somewhat unusual," but decided:
In the circumstances of this case, where plaintiffs' failure to perform the required analysis would almost certainly result in the exclusion of that key evidence prior to trial, and where that analysis can be performed comparatively easily using computerized data plaintiffs have in their possession, ordering plaintiffs to create the requested information is reasonable.
Id. at 55--56. *fn3 To allow for the completion of this additional analysis, the Court extended discovery first until April 25, 2012 (Minute Order, Apr. 24, 2012), then until June 11, 2012 (Order, Apr. 27, 2012, ECF No. 345), and ultimately until June 14, 2012 (Minute Order, June 12, 2012). The plaintiffs filed two supplemental expert reports and one set of errata on June 14, 2012. See Sealed Documents, June 14, 2012, ECF No. 360.
On May 22, 2012, before the amended discovery deadlines had passed, the District filed a Motion to Compel interrogatory responses and preclude plaintiffs from introducing certain evidence. ECF No. 351. Upon receipt of the plaintiffs' supplemental expert reports and errata, the District filed a Motion to Strike the expert reports. ECF No. 365. In the alternative, the District requested additional time to complete discovery and leave to designate rebuttal experts. Id. These motions are related to one another, and the Court considers them in turn.
While creating the supplemental expert reports, the plaintiffs claim that their experts discovered that the District's production was incomplete. The plaintiffs filed, on June 22, 2012, their Non-Consent Amended and Re-Stated Motion to Compel Production of the Release Discrepancy Database. ECF No. 362. This opinion also resolves this motion.
Under Federal Rule of Civil Procedure 26(b)(1), "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party." This right is subject to Rule 26(b)(2)(C), which limits discovery that is, inter alia, unreasonably duplicative, burdensome, or expensive. A party may submit to another party interrogatories that "relate to any matter that may be inquired into under Rule 26(b)." F.R.C.P. 33(a).
When a party fails to respond to a proper discovery request or interrogatory, the other party may-after first attempting to resolve the issue by conferring with the other party-file a motion to compel. F.R.C.P. 37(a)(1). Courts consider the prior efforts of the parties to resolve the dispute, the relevance of the information sought, and the limits imposed by Rule 26(b)(2)(C) when deciding whether to grant a motion to compel. See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350--52 (1978); Harris v. Koenig, 271 F.R.D. 356, 363 (D.D.C. 2010); U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 235 F.R.D. 521, 529--30 (D.D.C. 2006) (Lamberth, J.). An appellate court will review a district court's decision whether to compel discovery for an abuse of discretion. See Libscomb v. Winter, 2009 WL 1153442, *1 (D.C. Cir Apr. 3, 2009) (affirming district court because "appellant has not shown the district court abused its discretion in denying his motion to compel discovery."). Courts may, if appropriate, consider motions to compel filed after discovery has closed. See Lurie v. Mid-Atlantic Permanente Medical Group, P.C., 262 F.R.D. 29, 31 (D.D.C. 2009) (Lamberth, C.J.) ("[C]courts routinely consider motions related to discovery, even though they are filed outside the discovery period.").
Interrogatories, as a part of the discovery process, help litigants prepare for trial by narrowing the issues and determining what evidence they will need at trial. 8b CHARLES ALAN WRIGHT, ET AL., FED. PRAC. & PROC. § 2162 (3d ed. 2012). Parties must answer interrogatories "fully" with "true, explicit, responsive, complete and candid" answers. Equal Rights Ctr. v. Post Properties, Inc., 246 F.R.D. 29, 32 (D.D.C. 2007). "The party objecting to.discovery bears the burden of 'show[ing] why discovery should not be permitted,'" Alexander v. F.B.I., 193 F.R.D. 1, 3 (D.D.C. 2000) (internal citations omitted), while the party seeking to compel discovery has the burden of proving that a discovery response is inadequate. Equal Rights Ctr., 246 F.R.D. at 32. Courts treat evasive or incomplete answers to interrogatories as a failure to respond. F.R.C.P. 37(a)(4).
Under Federal Rule of Civil Procedure 12(f), a court may strike all or part of a pleading for insufficiency, redundancy, immateriality, impertinence, or scandalousness. See F.R.C.P 12(f); Judicial Watch, Inc. v. Dep't of Commerce, 224 F.R.D. 261, 263 (D.D.C. 2004). Under this Rule, "pleading" encompasses expert reports. See U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 474 F. Supp. 2d 75, 79 (D.D.C. 2007) (Lamberth, J.) (providing standard of review for motion to strike expert report, applying 12(f)).These motions are strongly disfavored, and the decision of whether to strike all or part of a pleading rests within the sound discretion of the Court. See Judicial Watch, 224 F.R.D. at 263 (collecting authorities); 2-12 MOORE'S FEDERAL PRACTICE-CIVIL § 12.37 (2006). A "motion to strike is considered an exceptional remedy and is generally disfavored," Larouche v. Dep't of the Treasury, 2000 WL 805214 at *13, (D.D.C. Mar. 31, 2000) (citing MOORE'S at § 12.37), and the proponent of such a motion must carry a "formidable burden." Judicial Watch, 224 F.R.D. at 264.
Defendant seeks to strike supplemental and amended expert reports, so the legal standards for filing and amending expert reports are relevant. Rule 26(A)(2)(d) states:
A party must [disclose expert testimony] at the time and in the sequence that the court orders. Absent a stipulation or court order, the disclosures must be made: at least 90 days before the date set for trial or for the case to be ready for trial; or if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party., within 30 days after the other party's disclosure.
F.R.C.P. 26(A)(2)(d) (original formatting omitted). The Rules further state:
A party who has made a disclosure under Rule 26(a).must supplement or correct its disclosure or response: in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information had not otherwise been made known to the parties during the discovery process or in writing; or as ordered by the court.
F.R.C.P. 26(e) (original formatting omitted). Courts do not allow supplemental or amended reports simply at the whim of a party; they are permitted: "(1) upon court order; (2) when the party learns that the earlier information is inaccurate or incomplete; or (3) when answers to discovery requests are inaccurate or incomplete." Mineba Co., Ltd. v. Papst, 231 F.R.D. 3, 6 (D.D.C. 2005) (citing Keener v. United States, 181 F.R.D. 639, 640 (D. Mont. 1998)).
The Rules provide that "[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time: with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or on motion made after the time has expired if the party failed to act because of excusable neglect." F.R.C.P. 6(b). Specifically pertaining to scheduling orders, Federal Rule 16(b) and Local Rule 16.4 allow the Court to modify the discovery deadlines of a scheduling order "upon a showing of good cause." Myrdal v. District of Columbia, 2007 WL 1655875, *2 (D.D.C. June 7, 2012) (Lamberth, J.).
Deciding whether to extend discovery is within the sound discretion of the trial court. See, e.g., U.S. v. Microsoft Corp., 253 F.3d 34, 100 (D.C. Cir. 2001) ("[T]he trial court [has] wide latitude to receive evidence as it sees fit."); Food Lion, Inc. v. United Food and Commercial Workers Int'l Union, 103 F. 3d 1007, 1012 (D.C. Cir. 1997) ("Trial courts exercise considerable discretion in handling discovery matters[.]"). In deciding whether good cause exists under Rules 16(b) and 16.4 to amend a scheduling order, the Court primarily considers the diligence of the party in seeking discovery before the deadline. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) ("Rule 16(b)'s 'good cause' standard primarily considers the diligence of the party seeking the amendment..If the party was not diligent, the inquiry should end."); St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., 2007 WL 1589496, *6 (D.D.C. June 1, 2007) (collecting cases, quoting Johnson).
D.Leave to Designate Rebuttal Experts
Rule 26(A)(2)(d)(ii) allows a party to designate a rebuttal expert "within 30 days after the other party's disclosure." Rebuttal experts are used "solely to contradict or rebut evidence on the same subject matter identified by another party." F.R.C.P. 26(A)(2)(d)(ii). There is no freestanding Rule that specifically addresses the designation and disclosure of rebuttal experts vis-a-vis supplemental or amended expert reports. Some Courts have held that, when a party had previously failed to designate a rebuttal expert, that party does not necessarily get another chance after a report is amended. See Hubbard v. Potter, 247 F.R.D. 27, 31 (D.D.C. 2008) (denying motion to strike supplemental expert report and denying leave to designate rebuttal experts). Other Courts, when faced with a report containing significant changes filed during or near trial, have gone as far as striking the entire supplemental report. See Minebea, 231 F.R.D. at 6 (striking supplemental expert reports submitted during trial).
Ultimately, granting leave is within the discretion of the Court. Rule 26(a)(2)(C) states that "[expert witness] disclosures shall be made at the times and in the sequence directed by the court." From "the language of Rule 26(a)(2)(C), the Court has the authority to control the timing and sequence in which expert designations are made" including whether a party can make a designation of an expert for the purposes of rebuttal. Estate of Vaughn v. KIA Motors America, Inc., 2006 WL 1806454, *2 (S.D. Miss. June 29, 2006).
A.Defendant's Motion to Compel Answers to Interrogatories No. 1 and 2
The District's current Motion to Compel relates to a previous Order of the Court resolving several discovery motions. On April 3, 2012, the Court ruled on two motions by the defendant to compel discovery responses and a motion by the plaintiffs for a protective order. Barnes, 281 F.R.D. 53. The District challenged plaintiffs' responses to Interrogatories 1, 2, 5, and 6. Id. at 55. As previously summarized by the Court:
Interrogatory No. 1 seeks, in short, the overall number of overdetentions during the Trial Period. Interrogatory No. 2 seeks the number of the overdetentions during the Trial Period that plaintiffs contend were caused by the 10 p.m. cut-off rule. Interrogatory No. 5 seeks the number of overdetentions (the time period is not specified) in which an inmate was sent to the Medical Holding Unit before being overdetained. Interrogatory No. 6 seeks a breakdown ("for all periods at issue") of the number of inmates who were overdetained for certain lengths of time-"less than 2 hours," "2 or more hours but less than 4 hours," and so forth.
Id. (citations omitted). This Court denied defendant's motion to compel as to Interrogatories 5 and 6, id. at 56, but granted the motion*fn4 as to Interrogatories 1 and 2. Id. at 55. To this end:
[T]he Court will order plaintiffs to revise their responses to Interrogatories Nos. 1 and 2 by stating how many overdetentions they contend occurred during the Trial Period (excluding from that number the number of overdetentions that they contend were caused by the DOC's enforcement of the 10 p.m. cut-off rule) and also by stating how many 10 p.m. cut-off rule overdetentions they contend occurred during the Trial Period. As requested by the District, plaintiffs must also explain in full in their responses how they arrived at these figures. The Court recognizes that ordering a party to create a document that doesn't exist or to perform analyses it hasn't yet performed is somewhat unusual..In the circumstances of this case, where plaintiffs' failure to perform the required analysis would almost certainly result in the exclusion of that key evidence prior to trial, and where that analysis can be performed comparatively easily using computerized data plaintiffs have in their possession, ordering plaintiffs to create the requested information is reasonable.
Id. at 55--56. In their present motion, the District claims-despite the Court's April 3rd Order- that it still has not received satisfactory responses to Interrogatories 1 and 2. Def.'s Mem. ISO its Mot. to Compel 2--3, May 22, 2012, ECF No. 351.
The Court's December 2011 Trial Plan opened a period of limited discovery to close on April 6, 2012. Barnes, 278 F.R.D. at 18. After this Court issued its April 3rd Discovery Opinion, the parties each moved to extend the discovery deadline to accommodate the discovery compelled by the Order. See ECF docket entries 337, 338, 339, 343. On April 27, 2012 this Court resolved those motions and set the deadline for extended discovery for June 11, 2012, adding: "[T]he Court shall permit the District to depose both [plaintiffs' experts] Dr. Kriegler and Mr. Day, at its option. No further extensions of discovery will be permitted." ECF No. 345. On June 12, 2012, the Court issued a Minute Order granting an additional extension of time, ordering the plaintiffs to "produce the [expert] reports and all related discoverable material no later than 12:00 AM on Thursday June 14, 2012." On June 14, 2012, the plaintiffs submitted their supplemental expert reports per the Court's Order. See ECF No. 360.
When granting defendant's earlier motion to compel as to Interrogatories 1 and 2, this Court expected that the answers may come via supplemental expert reports. This Court carefully considered the appropriateness of ordering plaintiffs to create new documents or perform new analyses, and ultimately decided that so ordering was "reasonable." 281 F.R.D. at 55--56. The Court extended discovery so plaintiffs could respond to Interrogatories 1 and 2 with supplemental reports identifying the requested information and explaining their methodologies. The District may have misunderstood the Court's April 3rd Discovery Opinion, because on May 22, 2012 it filed a renewed motion to compel. At that time, the plaintiffs had until June 11, 2012 to file reports answering the interrogatories. Therefore, the District's May 22nd motion to compel was premature; the plaintiffs still had time to file their responses.
In any event, the plaintiffs timely filed expert reports aimed at clearly and fully answering Interrogatories 1 and 2. Supplemental Report of Sean R. Day, June 14, 2012, ECF No. 360-2; Third Supplemental Expert Report of Brian Kriegler, Ph.D., June 14, 2012, ECF No. 360-3. When these reports came in, the defendant filed a Motion to Strike; the Court declines to strike these reports, for the reasons discussed in Part III.C. infra. The defendant may dispute the accuracy and methodologies of the reports, and they are free to do via deposition. However, plaintiffs answered ...