Hines v. Experian Information Solutions Inc et al

REPLY

W.D. Wash.October 13, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 PLAINTIFF’S REPLY TO DEFENDANT EXPERIAN’S RESPONSE TO PLAINTIFF’S MOTION TO ENLARGE TIME FOR SUBMISSION OF EXPERT REPORT PAGE 1 OF 7 CHUNG, MALHAS & MANTEL, PLLC 1511 Third Avenue, Suite 1088 Seattle, Washington 98101 Phone: (206) 264-8999 ♦ Facsimile (206) 264-9098 THE HONORABLE JUDGE THOMAS S. ZILLY IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON (SEATTLE) DANIEL HINES, a Washington State Resident Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC., a corporation; Defendant. Case No. 16-00881 PLAINTIFF’S REPLY TO DEFENDANT EXPERIAN’S RESPONSE TO PLAINTIFF’S MOTION TO ENLARGE TIME FOR SUBMISSION OF EXPERT REPORT TO: The United States District Court Clerk’s Office; and TO: Angela Taylor and Rachel Dunnington, Counsels for Defendant. I. INTRODUCTION COMES NOW, the Plaintiff, Daniel Hines, by and through his attorney of record, Edward C. Chung, and hereby replies to Defendant Experian’s Response. The evidence contained herein reflects that Defendant has been the one to delay discovery and engage in discovery abuses; not Plaintiff. Plaintiff request that it’s motion be granted is predicated on the following: Case 2:16-cv-00881-TSZ Document 38 Filed 10/13/17 Page 1 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 PLAINTIFF’S REPLY TO DEFENDANT EXPERIAN’S RESPONSE TO PLAINTIFF’S MOTION TO ENLARGE TIME FOR SUBMISSION OF EXPERT REPORT PAGE 2 OF 7 CHUNG, MALHAS & MANTEL, PLLC 1511 Third Avenue, Suite 1088 Seattle, Washington 98101 Phone: (206) 264-8999 ♦ Facsimile (206) 264-9098 II. PLAINTIFF’S REPLY A. DISCOVERY CORRESPONDENCES BETWEEN THE PARTIES’ COUNSEL OF RECORD IRREFUTABLY REVEALS THAT EXPERIAN DELAYED DISCOVERY; NOT PLAINTIFF. Defendant’s responsive pleading is hypocritical to an unconscionable extreme. It is perplexing how Defendants can claim, with anything like a straight face, that the delays in this case all spring from Plaintiff. Both sides here have at various times needed more time. And what is so outrageous about Defendant’s response is that, after Plaintiff had in good spirit offered Defendants two extensions on their discovery responses, Defendants callously turn around and refuse to stipulate that service of Plaintiff’s expert report was acceptable. This is just downright Machiavellian, Plaintiff cannot think of any other way to describe it. Indeed, in the face of emails from Defendant, attached hereto as Exhibit “A,” Defendant’s response strikes a totally disingenuous note. On August 8, 2017, Defendant sent an email to Plaintiff stating, “Please allow this email to confirm that Plaintiff has granted Experian a one-week extension to serve its written discovery responses, making the responses due Tuesday, August 15th. Additionally, thank you for confirming that Plaintiff’s deposition, which is scheduled for August 24th, is going forward. I will make travel arrangements. Finally, per our discussion, I will reach out to Angie regarding the service of the Expert Witness Report and whether she would be willing to stipulate that service was acceptable.” So, when Defendant’s counsel needed a professional courtesy, it was all ears about considering stipulating to accepting the Expert report. However, it does not stop there. Defendants asked for another extension, which Plaintiff granted: “Per an earlier extension granted by your office, Experian’s discovery responses are due today, August 15th. Would you be willing to grant an additional extension to this Friday, August 18th?” Case 2:16-cv-00881-TSZ Document 38 Filed 10/13/17 Page 2 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 PLAINTIFF’S REPLY TO DEFENDANT EXPERIAN’S RESPONSE TO PLAINTIFF’S MOTION TO ENLARGE TIME FOR SUBMISSION OF EXPERT REPORT PAGE 3 OF 7 CHUNG, MALHAS & MANTEL, PLLC 1511 Third Avenue, Suite 1088 Seattle, Washington 98101 Phone: (206) 264-8999 ♦ Facsimile (206) 264-9098 Now, after Plaintiff granted both requests, and Defendant got what it wanted, it turned around and refused to accept Plaintiff’s expert report! And Defendant’s response has the audacity to say “this case is ripe with examples of Plaintiff flouting the discovery.” (Defendant’s Response at 6). Unbelievable! In light of the above, Defendant’s motion has the gall to unabashedly state: “Experian has been more than reasonable with Plaintiff throughout this litigation despite multiple occasions during discovery in which Plaintiff has failed, and is continuing to fail, to meet his discovery obligations which has prejudiced Experian.” Defendant was not “more than reasonable” when it begged for more time. No, it was all graciousness, all smiles. What is more odd, but evident that counsel for Defendant did not read, is the Macias v. Perez case Defendant relies upon as legal authority for denying Plaintiff’s pending motion at bar. See, No. 10CV973- MMA BGS, 2011 WL 2669475 at Page 4 of Defendant’s response. Indeed, in Macias, the Court states: “While troubling, the 10-day delay in producing Mr. Bayer's report is not a sufficient reason to grant Defendant's motion because ultimately the delay is harmless.” It further states, “Accordingly, Defendant's motion to strike Mr. Bayer's report and testimony is DENIED.” The only thing the Court granted in Macias was three expert witnesses that did not provided reports, and which went unopposed. Did Defendant even read Macias? It clearly supports Plaintiff’s position; not Defendant’s case. The other case cited by Defendant is Quevedo v. Trans-Pac. Shipping, Inc., 143 F.3d 1255, 1258 (9th Cir.1998). Again, it is almost as if Defendant’s legal support software conjured up this case as supporting its position, and Defendants happily pasted it to its response to Plaintiff’s motion, without actually reading it. The facts in Quevedo were more egregious than being a week late, as the case here. The Court there noted, “Plaintiff submitted his designation of the one liability expert allowed by the court twenty days late, but did not provide the reports and statements of his expert witness as required by Case 2:16-cv-00881-TSZ Document 38 Filed 10/13/17 Page 3 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 PLAINTIFF’S REPLY TO DEFENDANT EXPERIAN’S RESPONSE TO PLAINTIFF’S MOTION TO ENLARGE TIME FOR SUBMISSION OF EXPERT REPORT PAGE 4 OF 7 CHUNG, MALHAS & MANTEL, PLLC 1511 Third Avenue, Suite 1088 Seattle, Washington 98101 Phone: (206) 264-8999 ♦ Facsimile (206) 264-9098 Fed.R.Civ.P. 26(a)(2) until he submitted his opposition to the defendants' motions for summary judgment on March 14, 1997. Plaintiff never sought an extension of time from the district court. Nor did he express disagreement with the limitation to one liability expert although given the opportunity to do so. The court ruled that “[b]ecause plaintiff has failed to justify his disregard for the Court's April 29, 1996 Order, the untimely report of Captain Bishop will not be considered for purposes of this motion for summary judgment.” This is totally unlike the current case. Plaintiff did not disregard this Court’s order. Rather, his expert was rushing to get it in on time as best he could. Plaintiff had been generous with Defendant about the need for more time, and did not imagine Defendant would so brazenly turn around and pull this sort of a stunt. Outside of the strictly legal issue, Defendant’s conduct is shockingly bad sportsmanship. Truth be told, Plaintiff simply cannot believe that after Defendants had been given more time, in good spirit, that Defendant can pounce on the fact his expert report was a week late, without the slightest feeling of shame. Yes, Plaintiff was required to provide a written expert report under Rule 26(a)(2) by the expert disclosure deadline on April 19, 2017. He provided it on April 26, 2017. Defendants knew that this report was being prepared, and the expert needed an extra week of time. B. EXPERIAN SHOWS NO PREJUDICE FOR A REPORT THAT THEY HAVE ALREADY OBTAINED RESPONSE TO. Two express exceptions ameliorate the harshness of Rule 37(c)(1): The information may be introduced if the parties' failure to disclose the required information is substantially justified or harmless. Fed.R.Civ.P. 37(c). Defendants cite Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1105 (9th Cir. 2001) to support their position that Plaintiff’s conduct was not substantially justified or harmless. However, in Case 2:16-cv-00881-TSZ Document 38 Filed 10/13/17 Page 4 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 PLAINTIFF’S REPLY TO DEFENDANT EXPERIAN’S RESPONSE TO PLAINTIFF’S MOTION TO ENLARGE TIME FOR SUBMISSION OF EXPERT REPORT PAGE 5 OF 7 CHUNG, MALHAS & MANTEL, PLLC 1511 Third Avenue, Suite 1088 Seattle, Washington 98101 Phone: (206) 264-8999 ♦ Facsimile (206) 264-9098 Yeti, the court noted: “Plaintiffs received Vuckovich's report one month before they were to litigate a complex case. To respond to it, plaintiffs would have had to depose Vuckovich and prepare to question him at trial. See NutraSweet Co. v. X-L Eng'g Co., 227 F.3d 776, 786 (7th Cir.2000) (“Without even a preliminary or draft supplemental expert witness report from [the expert], NutraSweet was greatly hampered in its ability to examine him about his analysis of the site work.” How different is the case here! Again, on May 19, 2017, Experian sent Plaintiff its disclosure of Mary Methvin to rebut the testimony of Thomas A Tarter. Ms. Methvin has already “reviewed and evaluated the Opening Expert Report of Thomas Tarter.” Indeed, Ms. Methvin has already prepared and served a 12 page rebuttal of the Plaintiff’s expert. As such, Defendant got this expert report 10 months before trial. And, Experian has a rebuttal report in its pockets. Furthermore, this is not a complicated case, from Experian’s position. This case is directly related to the business its everyday business. It is as humdrum a matter for Experian as it gets. Indeed, PACER is filled with similar against Experian: Inaccurate Reporting. For Experian to cry that it will be harmed by Plaintiff’s one week late report, and that now the case is just too hard for it, is nonsense on stilts. On the other hand, Plaintiff was substantially justified in being a week late. Just like it defies ordinary common to suppose that it is just too much for Experian to deal with a report that is a week late, it makes perfect common sense to suppose that Plaintiff needed some time to figure out what’s what in this matter. The fact is, the credit industry uses extremely complicated codes, exoteric language, things that are not especially familiar, to say the least. In short, from Plaintiff’s perspective, this case is very complex. Plaintiff would implore this Court to consider, in a common-sense way, whether he was late with the expert report because he just wanted to defy and disregard this Court’s order? Or is it more likely that Case 2:16-cv-00881-TSZ Document 38 Filed 10/13/17 Page 5 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 PLAINTIFF’S REPLY TO DEFENDANT EXPERIAN’S RESPONSE TO PLAINTIFF’S MOTION TO ENLARGE TIME FOR SUBMISSION OF EXPERT REPORT PAGE 6 OF 7 CHUNG, MALHAS & MANTEL, PLLC 1511 Third Avenue, Suite 1088 Seattle, Washington 98101 Phone: (206) 264-8999 ♦ Facsimile (206) 264-9098 needling through a byzantine set of documents, for one not accustomed to it, might take a little longer than expected? Which theory seems more likely? Furthermore, it is not Plaintiff’s fault that the expert took a week longer than expected. Lastly, Plaintiff filed this motion on the date of discovery cutoff, September 27, 2017, is not just “another example of Plaintiff’s disregard.” Plaintiff’s motion relates to an issue that came up in the midst of discovery. Plaintiff and Defendant were engaged in settlement talks. And, truth be told, Plaintiff did not believe that Defendant, in the face of the relative cordiality established between the parties, would actually refuse to accept the expert report. III. CONCLUSION Plaintiff’s motion should be granted as he has provided both substantial justification for allowing the testimony to be admissible and has shown that use of the testimony would be “harmless.” Respectfully Submitted this 13th day of October 2017. /s/ Edward C. Chung Edward C. Chung, WSBA #34292 Attorney for Plaintiff, Daniel Hines Case 2:16-cv-00881-TSZ Document 38 Filed 10/13/17 Page 6 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 PLAINTIFF’S REPLY TO DEFENDANT EXPERIAN’S RESPONSE TO PLAINTIFF’S MOTION TO ENLARGE TIME FOR SUBMISSION OF EXPERT REPORT PAGE 7 OF 7 CHUNG, MALHAS & MANTEL, PLLC 1511 Third Avenue, Suite 1088 Seattle, Washington 98101 Phone: (206) 264-8999 ♦ Facsimile (206) 264-9098 DECLARATION OF SERVICE I, Edward C. Chung, declare under penalty of perjury under the laws of the State of Washington that I am counsel of record for the above captioned Plaintiff and I am with the law firm of CHUNG, MALHAS & MANTEL, PLLC with an address of 1511 3rd Avenue, Suite 3803, Seattle, Washington 98101; and I caused copies of the foregoing document to be served this 13th day of October 2017 on the United States District Court Clerk’s Office for the Western District of Washington and Defendant’s legal counsel of record by using the Court ECF filing system which shall provide a copy and serve Defendants counsel of record provided below: JONES DAY c/o Virginia Taylor, Esq. 3161 Michelson Drive, Suite 800 Irvine, California 92612 & STOEL RIVES, LLP c/o: Rachel Dunnington, Esq. 600 University St Suite 3600 Seattle, Washington 98101 Respectfully submitted this 13thday of October 2017 by: /s/ Edward C. Chung . Edward C. Chung, WSBA# 34292 Attorney for Plaintiff Case 2:16-cv-00881-TSZ Document 38 Filed 10/13/17 Page 7 of 7