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Olson v. Nieman's Ltd.5/28/1998
996, two months past the February 6, 1996 disclosure deadline.
Iowa Rule of Civil Procedure 136(b)(3) allows a district court to enter a scheduling order setting time limits for completing discovery. Iowa Rule of Civil Procedure 138 mandates that
fter any conference held pursuant to R.C.P. 136, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order.
Iowa Rule of Civil Procedure 136(e) provides that if a party or a party's attorney fails to obey a scheduling or pretrial order, the court on its own initiative "may make such orders with regard thereto as are just."
The district court was well within its broad discretion to deny Nieman's request to extend the expert disclosure deadline. See Sullivan v. Chicago & Northwestern Transp. Co., 326 N.W.2d 320, 324 (Iowa 1982) (holding that imposition of discovery sanctions is discretionary and will not be disturbed unless there has been an abuse of discretion). We say this because Nieman violated the pretrial order on disclosure of experts, and the district court gave cogent reasons for the denial:
It is clear from the record that Defendant's counsel and Asken had been in contact for a substantial period of time going back at least to June 23, 1994. Contacts between counsel and Asken continued in cumulative fashion, i.e. Asken's opinion modified as the quantum of material researched by him expanded. The nature and extent of his present position appears based upon this expanded data.
The pretrial conference order fixed a discovery deadline of March 15, 1996. Both parties' counsel acknowledged additional discovery would be required in regard to Asken's qualifications, conclusions and basis therefor. Asken resides in Washington, D.C. Travel arrangements would be necessitated and travel time involved. This case is (and has since August 24, 1995) been set for trial on May 29, 1996. As demonstrated by numerous amendatory addenda, Asken's testimony has become progressively detailed. Plaintiff contends the post-deadline inclusion of Asken would be prejudicial as well as untimely. Having reviewed the various affidavits, the Court concurs.
The Court concludes no good cause has been shown for failure to adhere to the disclosure of expert witness deadline of February 6, 1996, as well as the established discovery deadline of March 15, 1996.
Contrary to Nieman's contention, Iowa Rule of Civil Procedure 125(c) provides no relief. Rule 125(c) requires a party to supplement discovery as to experts "as soon as practicable, but in no event less than thirty days prior to the beginning of trial except on leave of court." While it is true Nieman filed its supplemental discovery as to Asken before the thirty-day period before the trial, rule 136 gives the district court power to impose scheduling orders with alternative time limits. In short, rule 136 trumps rule 125(c).
The rule 136 power to impose scheduling orders with alternative time limits is especially important in complex cases like this one. Designating an expert witness thirty days before trial may cause extreme prejudice to the opposing party, who then may be compelled to depose the expert and obtain experts to refute the proffered testimony. In these circumstances, the district court may then be compelled to allow a continuance of a trial that may have been set months previously.
In this case, depriving Nieman of Asken's testimony was not as damaging to Nieman's defense as Nieman contends. Asken was going to testify to numerous patents that he believed included Olson's idea and therefore constituted "prio
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