Defendants must file their summary judgment motions, scheduled for January 13, 2017, by late October 2016. Plaintiffs concede "it would be helpful to allow some additional time for expert depositions" in advance of the March 10, 2017 trial date, and propose exchange dates of November 15 and December 9. These dates are after the summary judgment motions must be filed. As the Court previously noted, because plaintiffs admit there is no direct, physical evidence, the case turns largely on circumstantial evidence. Thus, expert testimony will be critical. Further, plaintiffs cannot claim prejudice from an early exchange date because they have been pursuing their claims here and in federal court since July 2013. Under these circumstances, an early expert exchange is warranted.
Defendant's request to depose plaintiffs' purported handwriting expert/consultant prior to the designation is denied. "An expert's identity and opinions are discoverable prior to designation only so long as it has become reasonably certain that the expert will testify at trial ... or if fairness requires it." Hernandez, supra, at 297. Plaintiffs have not decided whether they will designate a handwriting expert. Defendant will be free to depose plaintiffs' handwriting expert if one is designated.