United States District Court, D. Nevada
MUSTAFA YOUSIF and SHARONE WALKER on behalf of themselves and all others similarly situated, Plaintiffs,
LAS VEGAS SAND CORP.; THE VENETIAN CASINO RESORT, LLC; and DOES 1 through 50, inclusive, Defendants.
THIERMAN BUCK LLP, Mark R. Thierman, Attorneys for
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Anthony
L. Martin, Patrick F. Hulla (admitted pro hac vice),
Attorneys for Defendant.
STIPULATION AND ORDER TO EXTEND TIME TO RESPOND TO
PLAINTIFFS' MOTION FOR CLASS CERTIFICATION UNDER RULE 23
OF THE FEDERAL RULES OF CIVIL PROCEDURE (FIRST
RICHARD F. BOULWARE, UNITED STATES DISTRICT JUDGE.
to Local Rules IA 6-1, IA 6-2 and LR 7-1, Defendant Venetian
Casino Resort, LLC (“Defendant”), and Plaintiffs
Mustafa Yousif and Sharone Walker (collectively referred to
as “Plaintiffs”) hereby request a three-week
extension of time, up to and including, May 13, 2019, for
Defendant to file its Response to Plaintiffs' Motion for
Class Certification. Plaintiffs filed their Motion for Class
Certification on April 1, 2019 (“Motion”). (ECF
No. 126.) The present deadline for Defendant to file its
Response to the Motion is April 22, 2019. This is
Defendant's first request for an extension of time to
file its Response.
Stipulation is not intended for delay, and is made in good
faith so the parties may conclude a meet-and-confer regarding
evidence submitted by Plaintiffs in support of their Motion.
Specifically, Plaintiffs rely on the purported expert
testimony of analyst James R. Toney in their Motion. (ECF No.
126, p. 26.) However, Defendants believe that Plaintiffs
should have disclosed Mr. Toney as a witness under Fed. R.
Civ. Pro. 26(a)(1), or as an expert witness under Fed. R.
Civ. Pro. 26(a)(2), prior to using his testimony in support
of their Motion. “Expert reports are required in order
to eliminate ‘unfair surprise to the opposing party and
[to conserve] resources.'” Williams v.
University Medical Center of Southern Nev., 2010 WL
2802214 (D. Nev. July 14, 2010) (citing Elgas v. Colorado
Belle Corp., 179 F.R.D. 296, 299 (D. Nev. 1998)).
Further, while the original Discovery Plan and Scheduling
Order (“DPSO”) did not set a date for disclosure
of experts or the close of discovery, it did set forth a
two-phase discovery structure whereby the first phase of
discovery “will focus on the appropriate scope of any
motion for conditional and/or class certification and
Plaintiffs' individual claims for all (3) classes.”
(ECF No. 42 at section G.) Because Plaintiffs knew they would
use Mr. Toney's analysis in their Motion for Class
Certification, it was within the scope of discovery and
should have been disclosed under the DPSO. Moreover, at the
class certification stage, any proffered expert testimony
must undergo an analysis under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 591, 113 S.Ct. 2786
(1993) to test the evidence for scientific reliability and
relevance. See Ellis v. Costco Wholesale
Corp., 657 F.3d 970, 982 (9th Cir. 2011).
Plaintiffs' failure to disclose Mr. Toney or his report
deprived Defendants of the opportunity to depose Mr. Toney
and to test the reliance of his opinions. See Brown v.
Wal-Mart Store, Inc., 2018 WL 2011935 (N. D.
Cal. 2018) (Court reiterated that Wal-Mart's failure to
disclose the identities of fifteen declarants before filing
an opposition to Plaintiff's motion for class
certification “deprived [Plaintiffs] of the opportunity
to depose these declarants” and that the exclusion of
this evidence was justified (noting that the Ninth Circuit
upheld the imposition of that sanction on appeal).)
disagree due to the facts that (1) no expert disclosure
deadline has been set by the Court, and (2) no trial dates
have been set. See Torres v. White, 685 F.Supp.2d
1283, 1286 (N.D. Okla. 2010) (“Plaintiff's expert
report was timely disclosed under the Federal Rules of Civil
Procedure as this court did not set a specific time frame for
the identification of expert witnesses or the exchange of
witness reports. Absent a specific date set by the court or a
stipulation by the parties, Fed.R.Civ.P. 26(b)(2)(C)(i)
dictates that disclosure of experts must be made 90 days
before trial. Since there was no trial date set in this
matter, plaintiff's disclosure was timely.”);
see also, Minebea Co. Ltd. v. Papst, 231 F.R.D. 3,
6-7 (D.D.C. 2005) (“Purpose of rule requiring that
expert reports be disclosed at least 90 days before the trial
date or as directed by the court is to prevent unfair
surprise at trial and to permit the opposing party to prepare
rebuttal reports, to depose the expert in advance of trial,
and to prepare for depositions and cross-examination at
April 9, 2019, Defendant's counsel contacted
Plaintiffs' counsel to meet-and-confer regarding
Plaintiffs' reliance on Mr. Toney's testimony, their
failure to disclose him as a witness, and their failure to
disclose his expert report. Counsel for Plaintiffs responded
that they do not believe they were required to disclose Mr.
Toney prior to relying on his expert testimony but that they
would provide a position on the propriety of Mr. Toney's
analysis by Friday, April 12, 2019 or Monday, April 15, 2019.
Counsel also stated they would be available to discuss this
matter after Defendants' counsel has had an opportunity
to review their response. On April 15, 2019, Plaintiffs'
counsel sent correspondence to Defendant's counsel
regarding why it did not believe an expert disclosure prior
to filing their Motion was required. Further, Plaintiffs'
counsel indicated that they anticipated providing Defendant
with Plaintiffs' Expert Disclosure for Mr. Toney
“likely before the end of the week, 4/19/19”. .
result, the parties respectfully request a three-week
extension of time for Defendant to respond to Plaintiffs'
Motion and to allow for a meet-and-confer with Plaintiffs to
be fully conducted, to review and analyze Mr. Toney's
expert report, to determine whether a rebuttal expert is
necessary at this time, and to explore whether and to what
extent a Motion to Strike Mr. Toney is appropriate.
 Las Vegas Sands Corp. was dismissed
from this matter on October 10, 2018. (ECF ...