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United States v. 269 Acres, More or Less, Located in Beaufort County

United States District Court, D. South Carolina, Beaufort Division

January 24, 2018

United States of America, Plaintiff,
v.
269 Acres, More or Less, Located in Beaufort County, State of South Carolina; et al., Defendants.

          ORDER AND OPINION

          Richard Mark Gergel United States District Court Judge

         This matter is before the Court on the Government's motion to exclude expert testimony of Gregg Ness for failure to produce an expert report (Dkt. No. 75). For the reasons set forth below, the Court denies the motion.

          I. Background

         The United States filed this action on July 15, 2016, to acquire a restrictive easement over 269 acres of land adjacent to the Marine Corps Air Station in Beaufort, South Carolina, to protect flight operations. The issue in this case is the compensation due for the property taken. Defendants allege that Southern Current LLC, a developer of solar arrays, entered into an option agreement with them for the construction of a solar array on land adjacent to the property. They also allege Southern Current would have entered into a lease for the development of a solar array on the property had the United States not condemned an easement on the property. Defendants plan to seek recovery of the value of the leases, allegedly about $6 million.

         On August 1, 2017, the Court permitted Defendants' late identification of a witness from Southern Current. (Dkt. No. 59.) Defendants identified Mr. Ness, the company's general counsel, as a fact witness "to testify as to the contract between landowners and Southern Current." (Dkt. Nos. 75-3 & 75-4.) On August 20, 2017, the Government moved for leave to identify an expert witness on the proposed solar arrays. (Dkt. No. 63.) On September 20, the Government deposed Mr. Ness as a fact witness. On September 28, the Court granted the Government's motion and ordered that each side may "disclose a solar expert and report by November 3, 2017" and that the identified solar experts may be deposed by December 1, 2017. (Dkt. No. 71.) On November 3, Defendants named Mr. Ness as its solar expert. The Government did not re-depose him as an expert.

         Confusingly, Defendants' disclosure of Mr. Ness as an expert stated, "Because Mr. Ness' proffered testimony concerns his personal knowledge and involvement with this and other solar farm projects, the nature of Mr. Ness' testimony will be that of a fact witness, rather than an expert witness." (Dkt. No. 79-4.) Defendants provided no expert report for Mr. Ness, instead providing a copy of his September 20, 2017 deposition signed by Mr. Ness. Defendants assert that signed deposition is a sufficient disclosure for a non-retained expert under Rule 26(a)(2)(C).

         On January 8, 2018, the Government moved to exclude Mr. Ness from offering expert opinion testimony. The Government does not object to Mr. Ness as a fact witness.

         II. Legal Standard

         Rule 37 of the Federal Rules of Civil Procedure provides that "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1). Local Civil Rule 16.02(D)(2) provides that witnesses identified in the last twenty-eight days of the discovery period are presumed to be untimely identified, absent a showing of good cause.

         "[T]he basic purpose of Rule 37(c)(1) [is] preventing surprise and prejudice to the opposing party." S. States Rack & Fixture, Inc. v. Sherwin- Williams Co., 318 F.3d 592, 596 (4th Cir. 2003). Thus, the district court has broad discretion to determine whether a nondisclosure of evidence is substantially justified or harmless. Id. at 597. "[I]n exercising its broad discretion to determine whether a nondisclosure of evidence is substantially justified or harmless for purposes of a Rule 37(c)(1) exclusion analysis, a district court should be guided by the following factors: (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence." Id.

          III. Discussion

         Defendants identified Mr. Ness as an expert witness. The Government asserts that he is required to produce an expert report under Rule 26(a)(2)(B). Defendants assert that Mr. Ness is only required to produce an expert disclosure under Rule 26(a)(2)(C) and that Mr. Ness has complied with that requirement.

         A. Whether an expert report under Rule 26(a)(2)(B) is required

         Rule 26(a)(2) provides for two different types of disclosure of expert opinions. Rule 26(a)(2)(B) requires experts who are "retained or specially employed to provide expert testimony in the case or ... whose duties as the party's employee regularly involve giving expert testimony" to disclose an extensive expert report. Rule 26(a)(2)(C) requires experts who are not so retained or employed to provide a more summary disclosure of the ...


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