Moller

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KATHLEEN MOLLER * CIVIL ACTION

VERSUS * NO. 24-228

MARTIAN SALES, INC., ET AL. * SECTION “D” (2)

ORDER AND REASONS

Pending before me on an expedited basis is Defendant JOpen, LLC’s Motion to Preclude,

Motion to Re-depose and Motion to Compel. ECF Nos. 217, 220. Plaintiff timely filed Opposition

memorandum, and Defendant timely filed a Reply. ECF Nos. 221, 224. The Court finds oral

argument unnecessary.

Having considered the record, the submissions and arguments of counsel, and the

applicable law, Defendant JOpen, LLC’s expedited Motion to Preclude is DENIED WITHOUT

PREJUDICE, Motion to Re-depose is GRANTED, and Motion to Compel is GRANTED IN

PART AND DENIED IN PART and for the reasons stated herein.

I. BACKGROUND

Plaintiff Kathleen Moller filed suit against, among others, JOpen, LLC after the death of

her 36-year-old daughter, whom she contends died as a result of ingesting Defendants’ kratom

products. ECF No. 100 ¶¶ 30-33. Plaintiff asserts state law wrongful death and products liability

claims. Id. ¶¶ 58-64. Chief Judge Vitter initially authorized jurisdictional discovery and continued

all other deadlines, but later entered a Scheduling Order setting this matter for trial on April 13,

2026, and establishing a November 18, 2025, expert disclosures deadline and a January 20, 2026,

fact discovery deadline, and subsequently extended the expert discovery deadline to February 20,

2026, and the motion submission date to March 17, 2026. ECF Nos. 54, 158, 195.

Dr. Josef Thundiyil is Plaintiff’s designated expert toxicologist that will be called to testify

at trial. ECF No. 196. On the November 18, 2025, expert disclosure deadline, Plaintiff provided

Dr. Thundiyil’s expert report with his attached Curriculum Vitae (“CV”) dated April 14, 2025.

ECF No. 217-1 at 4-5; No. 217-7. Dr. Thundiyil has opined that Plaintiff’s daughter died as a

result of ingesting kratom products distributed by the defendants. ECF No. 217-1 at 2.

On January 16, 2026, JOpen deposed Dr. Thundiyil. ECF No. 221-1 at 2. JOpen’s counsel

asked the doctor whether he had ever performed any studies related to kratom, and he described

an unpublished study from 2020 to 2024 looking at reported deaths in Florida from kratom as

compared to a control group of patients that died in Orange County, Florida, who had kratom or

mitragynine on board, but whose causes of death were not attributed to those substances. Id. at 3

(17:15-20), 5-6 (19:21-20:8), 14 (50:10-18). Although currently under peer review, Dr. Thundiyil

indicated the study was presented as a poster and oral presentation in October 2025. Id. at 6 (20:2-

10). However, these presentations were not disclosed in his April 14, 2025, CV because that CV

was not his “most recent” CV. ECF No. 217-6 at 4 (22:12-18). Plaintiff’s counsel later provided

JOpen’s counsel another updated CV of Dr. Thundiyil, dated October 17, 2025. ECF No. 222-1 at

36 (234:12-21); see ECF No. 217-8.1 The October 2025 CV lists four poster presentations

regarding mitragynine and kratom and three news segments regarding kratom, none of which was

listed in the April 14, 2025, CV. Compare ECF No. 217-7 at 10, 18, 25, 31 (Last entries in listings

of poster publications and presentations in April 14, 2025 CV), with ECF No. 217-8 at 10, 18, 25,

32 (Last entries in listings of poster publications and presentations in October 17, 2025, CV).

On September 4, 2025, the abstract of the study at issue was published. ECF No. 217-4 at

3 (abstract of “Control study of mitragynine induced fatalities vs all causes deaths with

1 While listed as updated on October 17, 2025, Dr. Thundiyil testified that he updated his CV in December 2025. See

ECF No. 221-1 at 11 (47:17-48:2), 36 (234:15-235:1); see also ECF No. 221-2.

mitragynine found on autopsy” (the “Study”)). On January 21, 2026, Plaintiff produced the

relevant posters listed in Dr. Thundiyil’s October 2025 CV. ECF No. 217-5 at 2. The posters are

entitled “Case Control study of mitragynine induced fatalities vs all causes deaths with mitragynine

found on autopsy” (“Poster 1”) and “Risk factors associated with kratom deaths in a single state”

(“Poster 2”). ECF Nos. 217-2, 217-3. On January 23, 2026, JOpen requested Plaintiff produce

certain documents relating to the posters, but Plaintiff did not produce same. ECF No. 217-1 at

12; No. 217-9 at 2, 4.

II. PENDING MOTIONS

On February, 3, 2026, JOpen filed its Motion to Preclude, requesting the Court preclude

Plaintiff from using information related to the Study in any motion, trial or a hearing, pursuant to

Rule 37(c)(1). ECF No. 217-1 at 1. Alternatively, JOpen requests the Court allow it an additional

2 hours to depose Dr. Thundiyil at Plaintiff’s expense and award sanctions pursuant to Rule

30(d)(2). Id.2 JOpen also requests the Court to compel Plaintiff to produce certain documents

related to the posters, which the Court construes as a Motion to Compel pursuant to Rule

37(a)(3)(A). Id. at 1-2, 8. JOpen asserts the omissions of the four poster presentations and three

news segments from the April 2025 CV constitute failure to provide required expert disclosure per

Rule 26(a)(2)(B)(iv). Id. at 8-9. It then contends Plaintiff’s failure is neither substantially justified

nor harmless, and thus, Rule 37(c)(1) sanctions are appropriate. Id. at 10-12.

In Opposition, Plaintiff notes Dr. Thundiyil updated his CV after the November 18, 2025,

expert disclosure deadline and that, during the doctor’s deposition, JOpen’s counsel asked various

2 The Court construes the motion as a request to re-depose the expert pursuant to Rules 30(a)(2)(A)(ii) and 30(d)(1).

This is consistent with Fifth Circuit precedent directing courts to “determine the true nature of a pleading by its

substance, not its label.” Armstrong v. Capshaw, Goss & Bowers, LLP, 404 F.3d 933, 936 (5th Cir. 2005) (citing

Edwards v. City of Hou., 78 F.3d 983, 995 (5th Cir. 1996) (en banc) (“[W]e have oft stated that ‘the relief sought, that

to be granted, or within the power of the Court to grant, should be determined by substance, not a label.’” (quoting

Bros. v. W.E. Grace Mfg. Co., 320 F.2d 594, 606 (5th Cir. 1963))) (finding court properly treated motion for leave to

amend his complaint in intervention as motion for leave to intervene).

questions relating the news segments and poster presentations. See ECF No. 221 at 2-4. Plaintiff

asserts the disclosure of the October 2025 CV during the deposition was timely, and that disclosure,

along with the provision of the abstracts, is substantially justified and not prejudicial to JOpen. Id.

at 7-12. Plaintiff asserts there is no good cause to redepose Dr. Thundiyil because JOpen’s counsel

questioned him extensively about the October 2025 CV, the abstracts, and the Study, and the

abstracts were publicly available as of September 2025. Id. at 12-13. As to the requested

documents, Plaintiff asserts the Protective Order’s attorneys-eyes-only provision is insufficient to

protect the documents’ sensitive data because JOpen’s counsel has an alleged interest to use the

documents for purposes other than this litigation due to a potential business relationship with

JOpen. Id. at 14-15; see ECF No. 62. Plaintiff next asserts JOpen seeks sensitive personal health

and identifying information that is protected by the Health Insurance Portability and

Accountability Act (“HIPAA”) and Louisiana law, privileged, and not relevant or proportional to

the needs of the case. ECF No. 221 at 15-17.3

In Reply, JOpen asserts Plaintiff’s contention that her expert disclosure is timely would

eliminate the purpose of the disclosures, and any disclosure could be avoided by using the date the

expert added the publication to his CV rather the date of the publication. ECF No. 224 at 2. It

reiterates that it will be prejudiced if the Court does not preclude Plaintiff from using information

3 Plaintiff’s Opposition Memorandum also requests production and preclusion, but Plaintiff has not filed any motion

requesting same. See ECF No. 221 at 6, 17. “A request for a court order must be made by motion. The motion must:

(A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order;

and (C) state the relief sought.” FED. R. CIV. P. 7(b)(1). “It is axiomatic that a memorandum in opposition does not

equate to a motion,” thus the Court declines to further consider Plaintiff’s requests. Ruiz v. Weeks Marine, Inc., No.

23-5428, 2025 WL 3088900, at *9 (E.D. La. Oct. 23, 2025) (Guidry, J.) (emphasis in original) (quoting Lazard v. E.

Baton Rouge Par. Sch. Bd., No. 12-552, 2013 WL 3772286 (M.D. La. July 16, 2013) (denying party's request to

amend complaint in her memorandum in opposition); Cotton Exch. Inv. v. Xcel Air Conditioning, No. 16-17543, 2019

WL 3006401 (E.D. La. July 10, 2019) (denying consideration of request to reconsider prior ruling improperly raised

in opposition); In re Taxotere (Docetaxel) Prod. Liab. Litig., No. 20-3087, 2022 WL 17980209 (E.D. La. Dec. 27,

2022) (declining to “consider the argument raised in Plaintiff's memorandum in opposition seeking relief”)).

relating to the Study because its conclusions form the basis of Dr. Thundiyil’s expert opinion on

mitragynine-related causes of death. Id. at 3-5.

III. APPLICABLE LAW AND ANALYSIS

A. Motion to Preclude

Rule 37(c) of the Federal Rules of Civil Procedure authorizes the preclusion of evidence

(or other sanctions) when a party has failed to provide information as required by Rule 26(a) or

(e). FED. R. CIV. P. 37(c)(1). Rule 37(c)(1) motions are akin to motions in limine4 as same seek

to secure a pretrial ruling that certain evidence is inadmissible.5 Given the request that Plaintiff

be precluded from using the information related to the Study at trial and the impact of same on the

trial process, the prudent approach is to allow Chief Judge Vitter to determine what evidence may

or may not be introduced during trial when addressing motions in limine. In light of available less

severe alternatives, the undersigned denies JOpen’s motion to preclude but does so without

prejudice to JOpen raising the issue via a motion in limine before Chief Judge Vitter.

B. Motion to Compel

Under Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure, “a party must disclose to

the other parties the identity of any witness it may use at trial to present evidence under Federal

Rule of Evidence 702, 703, or 705.” The party must make the expert disclosure “at the times and

in the sequence that the court orders.” FED. R. CIV. P. 26(a)(2)(D).

Generally, expert disclosures “must be accompanied by a written report—prepared and

signed by the witness—if the witness is one retained . . . to provide expert testimony in the case,”

4 Compare CQ, Inc. v. TXU Mining Co., 565 F.3d 268, 279 (5th Cir. 2009) (describing a Rule 37(c)(1) motion as a

“motion in limine”) Edmonds v. Beneficial Miss., Inc., 212 F. App’x 334, 338 (5th Cir. 2007) (same), with King, 117

F.4th at 306 (treating Rule 37(c)(1) motion as motion to exclude and expressly distinguishing it from motion in limine).

5 Randle v. Tregre, 147 F. Supp. 3d 581, 596 (E.D. La. 2015) (brackets omitted) (quoting Bond Pharmacy, Inc. v.

AnazaoHealth Corp., No. 11-58, 2012 WL 3052902, at *2 (S.D. Miss. July 25, 2012) (citing cases)), aff’d, 670 F.

App’x 285 (5th Cir. 2016).

and that report must contain, among other things, “a complete statement of all opinions the witness

will express and the basis and reasons for them” and “the facts or data considered by the witness

in forming them.” FED. R. CIV. P. 26(a)(2)(B)(i)-(ii). The party must not only disclose the facts

or data considered but must also produce same.6

The Advisory Committee’s notes to Rule 26(a)(2)(B) indicate “facts or data” is “broadly”

interpreted “to require disclosure of any material considered by the expert, from whatever source,

that contains factual ingredients. The disclosure obligation extends to any facts or data

‘considered’ by the expert in forming the opinions to be expressed, not only those relied upon by

the expert.”7 “[C]onsidered” in Rule 26(a)(2)(B) means any fact or data “furnished to a testifying

expert that such expert ‘generates, reviews, reflects upon, reads, and/or uses in connection with

the formulation of his opinions, even if such [fact or data] is ultimately rejected.’”8

Rule 37 authorizes a party to move for an order compelling another party to make a

disclosure required under Rule 26(a) that she failed to make. FED. R. CIV. P. 37(a)(1), (3)(A). A

6 See, e.g., Harness v. Chevron U.S.A., Inc., No. 23-210, 2024 WL 3868215, at *2 (S.D. Miss. Aug. 19, 2024) (holding

Rule 26(a)(2)(B)(ii) requires not only citation of the facts/data in the expert’s report but also production (citing Brimer

v. Chase Bank, U.S.A., N.A., No. 10-7, 2011 WL 13233317 (N.D. Tex. Jan. 13, 2011)); Sanchez v. Gomez, No. 17-133,

2019 WL 12536398, at *3 (W.D. Tex. Apr. 29, 2019) (“Thus, under Rule 26(a)(2)(B)(ii), because Taylor considered

the testimony of certain grand jury witnesses when formulating his opinion, Gomez must disclose and produce the

grand jury transcripts considered by Taylor.” (emphasis added) (citing Deal v. La. ex rel. Dep’t of Just., No. 11-743,

2013 WL 4546772, at *4 (M.D. La. Aug. 28, 2013) (citation omitted))); Est. of Manship v. United States, 236 F.R.D.

291, 295 (M.D. La.) (“Thus, testifying experts . . . must produce not only their written valuation reports but also the

materials that they ‘considered’ in forming their valuation opinions, regardless of when those materials were,

generated, reviewed and/or used.”), vacated in part, 237 F.R.D. 141 (M.D. La. 2006) (vacating award of attorney’s

fees as an unfair sanction); Clean Pro Carpet & Upholstery, Inc. v. Upper Pontalba of Old Metairie Condos. Ass’n,

Inc., No. 20-1550, 2020 WL 7229700, at *4 (E.D. La. Dec. 8, 2020 (finding documents discoverable under Rule

26(a)(2)(B)(ii) and ordering them to be produced).

7 FED. R. CIV. P. 26(a)(2)(B) advisory committee’s notes to 2010 amendment, quoted in United States ex rel. Wall v.

Vista Hospice Care, 319 F.R.D. 498, 506 (N.D. Tex. 2016); see also Brimer, 2011 WL 13233317, at *3 (“Testifying

experts are not only bound to disclose all information they ultimately rely upon in forming their opinions, but also all

information that they consider in reaching their conclusions.” (citing Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d

373, 378 n.8 (5th Cir. 2010) ( holding that work product privilege was waived over documents considered by testifying

experts when formulating opinions))).

8 Est. of Manship, 236 F.R.D. at 295 n.2 (alterations in original) (quoting Synthes v. Spine Co. v. Walden, 232 F.R.D.

460, 463 (E.D. Pa. 2005); and citing Amway Corp. v. Procter & Gamble Co., No. 98-726, 2001 WL 1877268, at *1

(W.D. Mich. Apr. 17, 2001)); accord. Millsaps Coll. v. Lexington Ins. Co., No. 16-193, 2017 WL 3158879, at *3 (S.D.

Miss. July 24, 2017) (quoting In re Benicar (Olmesartan) Prods. Liab. Litig., 319 F.R.D. 139, 141 (D.N.J. 2017)

(quoting Synthes Spine Co., 232 F.R.D. at 463)).

Rule 37 motion “must include a certification that the movant has in good faith conferred or

attempted to confer with the person or party failing to make disclosure or discovery in an effort to

obtain it without court action.” Id. at 37 (a)(1). However, this requirement may be overridden

when the circumstances warrant.9 “In circumstances where the discovery may impact pending

deadlines, the failure to certify has been sacrificed to achieve pragmatic ends such a[s] ‘judicial

expediency.’”10 While JOpen’s failure to provide the required Rule 37(a)(1) certificate would be a

sufficient reason to deny its motion,11 considering the lapse of the expert discovery deadline, the

Court will address the merits of the motion.12

JOpen requests the Court compel Plaintiff to disclose and produce certain documents and

communications related to the studies reflected in Posters 1 and 2. ECF No. 217-1 at 4.

Specifically, they are:

1) All research and case-related documents underlying the presentations on

THUNDIYIL_000001 and THUNDIYIL_000002, including but not limited to the

manual of operations and all “autopsy records and toxicology reports over a 5-year

period for all decedents with MTG identified as the cause of death” that were received

by medical examiners for the study . . . ;

2) Communications with the Institutional Review Board regarding the studies presented

in THUNDIYIL_000001 and THUNDIYIL_000002, including but not limited to

9 Robinson v. LA Dock Co., No. 99-1996, 2000 WL 1059860, at *2-3 (E.D. La. Aug. 1, 2000) (indicating that failure

to hold an initial conference did not warrant dismissal of the motion where non-movant objected to three specific

interrogatories for which a blanket work-product privilege and other vague, boilerplate language had been asserted,

and circumstances indicated that a Rule 37 conference would have been futile); Holmes v. Reddoch, No. 19-12749,

2020 WL 5749157, at *3 (E.D. La. Sept. 25, 2020) (“[I]n circumstances where the discovery may impact pending

deadlines, the failure to certify has been sacrificed to achieve pragmatic ends such as ‘judicial expediency.’” (quoting

J.M. Smith Corp. v. Ciolino Pharmacy Wholesale Distribs., No. 10-1483, 2012 WL 13001456, at *2 (E.D. La. Dec.

28, 2012))); S. La. Ethanol, L.L.C. v. Fireman’s Fund Ins. Co., No. 11-2715, 2013 WL 1196604, at *3 (E.D. La. Mar.

22, 2013) (citing cases).

10 Holmes, 2020 WL 5749157, at *3 (quoting J.M. Smith Corp., 2012 WL 13001456, at *2).

11 Shaw Grp. Inc. v. Zurich Am. Ins. Co., No. 12-257, 2014 WL 4373197, at *3 (M.D. La. Sept. 3, 2014) (citations

omitted); see also McAllister v. McDermott, Inc., No. 18-361, 2019 WL 6065704, at *2 (M.D. La. Nov. 15, 2019)

(citing Forever Green Athletic Fields, Inc. v. Babcock Law Firm, LLC, No. 11-633 (M.D. La. July 2, 2014) (denying

motion to compel where defense counsel made a single attempt by email to meet and confer and did not do so in a

good faith effort to resolve the dispute without court intervention)); Greer v. Bramhall, 77 F. App’x 254, 255 (5th Cir.

2003) (finding the district court did not abuse its discretion in denying motion to compel for failing to follow Rule

37); D.H. Griffin Wrecking Co. v. 1031 Canal Dev., L.L.C., No. 20-1051, 2020 WL 8265341, at *3 (E.D. La. Apr. 16,

2020) (citations omitted).

12 Holmes, 2020 WL 5749157, at *3 (waiving plaintiff’s non-compliance with Rule 37’s conference and certification

requirements because the second discovery period has now lapsed without extension).

submittals for approval and any subsequent approval for such research; and

3) Documents sufficient to understand the training and background of the individuals (or

“group of physicians” as Dr. Thundiyil referred to in public news segments) that

conducted the case studies in THUNDIYIL_000001 and THUNDIYIL_000002

(including but not limited to, Christian Iuteri, Ryan Sawyers, Connor Byrne, and Max

Trojano).

ECF No. 217-1 at 1-2.

The briefing, including Plaintiff’s, indicates that the studies reflected in Posters 1 and 2 are

bases for Dr. Thundiyil’s opinions. See ECF No. 221 at 9-10 (“[T]he CV and related abstract

posters do not constitute new opinions, but only support Dr. Thundiyil’s pre-existing opinions. . .

. Further, the updated CV and abstracts only support Dr. Thundiyil’s opinion, the documents are in

no way leading to a new or different opinion.”); see also No. 224 at 3-4 (“[T]he study Plaintiff

failed to disclose is Dr. Thundiyil’s own study . . . the conclusions of which form the basis for Dr.

Thundiyil’s opinion on mitragynine-related causes of death.”). Thus, any facts or data from the

studies that Dr. Thundiyil considered in forming his opinions, as well as the studies themselves,

should have been disclosed by Plaintiff in the expert report on November 18, 2025. It does not

appear that such disclosure occurred. See ECF No. 221-4 at 4-9 (“Background Materials Reviewed

And/Or Relied Upon” in Dr. Thundiyil’s November 13, 2025, expert report). Indeed, even Dr.

Thundiyil indicates that he has not provided all the “facts or data” he considered to form his

opinions. See ECF No. 221-4 at 4 n.1 (“This is not a compete recitation of all materials I may

have access to or reviewed in relation to kratom and/or this matter and I reserve the right to refer

to, rely on, or supplement this listing.” (emphasis added)). Disclosure, however, is expressly

required by Rule 26.

The Court cannot determine whether all of the documents and communications requested

by JOpen fall within the scope of Rule 26(a)(2)(B)(ii). Regardless, Plaintiff must produce to JOpen

the studies reflected in Posters 1 and 2 and any facts or data related to them, including responsive

documents and communications requested by JOpen, that Dr. Thundiyil considered, not only those

relied upon, to form the opinions reflected in the expert report as same fall within Rule

26(a)(2)(B)(ii). However, any facts and data not considered by Dr. Thundiyil need not be disclosed

or produced. Plaintiffs must produce the required materials by March 3, 2026. Failure to do so

may result in sanctions under Rule 37(b)(2).

Contrary to Plaintiff’s assertions that the Protective Order is insufficient to protect the

production of the documents and communications, that Order applies to all materials marked

confidential and produced in the course of discovery, including initial disclosures. ECF No. 62 ¶ 1.

That Order expressly prohibits the use or disclosure of confidential information for any purposes

other than this litigation. Id. ¶ 5(a). Designation of a document as “Attorneys’ Eyes Only” further

limits access that document. Id. ¶ 5(c). The Order “remain[s] in force after dismissal or entry of

final judgment not subject to further appeal.” Id. ¶ 12(a). A violation of the Order can subject a

party and/or its counsel to Rule 37(b)(2)(A) and (C) sanctions,13 even absent a motion.14 While

the Court cannot prevent a violation of the Order, the Court expects all officers of the court to

comply with their ethical obligations. Moreover, the parties and their counsel are on notice that

the Court will appropriately issue sanctions for any violation.

Likewise, Plaintiff’s assertions of HIPAA protections and privilege15 over autopsy records

and toxicology reports fail. HIPAA does not apply because even a covered entity may disclose an

individual's protected health information when disclosure is required by law.16 And the Louisiana

health care provider-patient privilege does not apply because Plaintiff is not the patient who may

13 See Smith & Fueller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 490 (5th Cir. 2012).

14 See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990).

15 See ECF No. 221 at 15-16.

16 See Disability Rts. Texas v. Hollis, 103 F.4th 1058, 1065 (5th Cir. 2024).

raise this privilege.17 Nor does LA. REV. STAT. § 3715.1 apply as neither Plaintiff nor Dr. Thundiyil

qualify as a “health care provider” under those provisions. See LA. REV. STAT. § 3715.1(A)(2);

LA. REV. STAT. § 40:1165.1(A)(10); see ECF No. 217-8 (Dr. Thundiyil’s October 17, 2025, CV,

indicating he is licensed to practice medicine in Florida but not indicating any Louisiana license

or certification).

B. Motion to Re-depose

Rule 30(a)(2)(A)(ii) of the Federal Rules of Civil Procedures requires a party to obtain

leave of court to re-depose a party or witness, and the court must grant leave to the extent consistent

with Rule 26(b)(1) and (2) if the parties have not stipulated to the deposition and the deponent has

already been deposed in the case. Rule 26(b)(1) describes the permissible scope of discovery,18

and (b)(2) describes when the court may and must limit the frequency and extent of discovery.

Accordingly, “many district courts simply follow[ ] the directive of Rule 30(a)(2) by considering

the principles set out in Rule 26(b)(2) in deciding whether they must grant leave.”19

Relatedly, Rule 30(d)(1) requires a court to allow a party additional time to depose a party

or witness beyond the general limitation of one day of 7 hours “consistent with Rule 26(b)(1)

and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other

circumstances impedes or delays the examination.” “In deciding whether there has been a fair

examination, the court may consider factors such as: (1) if the examination will cover events

occurring over a long period of time; and (2) the need for each party to examine the witness in

17 See La. CODE EVID. art. 510(B)(1) (“In a non-criminal proceeding, a patient has a privilege to refuse to disclose and

to prevent another person from disclosing confidential communication made for the purpose of advice or diagnosis or

treatment of his health condition between or among himself or his representative, his health care provider, or their

representatives.” (emphasis added)); Id. at 510(D) (“In . . . civil . . . proceedings, the privilege may be claimed by the

patient or by his legal representative.”).

18 This Court has previously explained to permissible scope of discovery to these parties. See, e.g., ECF No. 98 at 6-

7; No. 211 at 6 (explaining the scope of discovery in the context of a Rule 30(a)(2)(A)(i) motion).

19 Kleppinger v. Tex. Dep’t of Transp., 283 F.R.D. 330, 332 (S.D. Tex. 2012) (citing cases).

multi-party cases.”20 In multi-party cases, “duplicative questioning should be avoided and parties

with similar interests should strive to designate one lawyer to question about areas of common

interests.” Another factor is whether the deponent is an expert witness, for which “there may more

often be a need for additional time—even after the submission of the report required by Rule

26(a)(2)—for full exploration of the theories upon which the expert relies.”21

Before extending the duration of a deposition, however, the court must be satisfied that the

moving party has shown “good cause.”22 The Advisory Committee’s notes to Rule 30(d) do not

describe what suffices as good cause, but courts generally agree that good cause means the

proposed areas of questioning do not run afoul of Rule 26(b)(2)(C)23 and have required same where

a party moves for a second deposition pursuant to Rule 30(a)(2)(A)(ii).24

Courts typically allow a second deposition “where a witness was inhibited from providing

full information at the first deposition” or “where new information comes to light triggering

20 Waste Mgmt. of La. LLC v. River Birch, Inc., No. 11-2405. 2017 WL 2256888, at *2 (E.D. La. May 23, 2017)

(quoting Kleppinger, 283 F.R.D. at 333 (citing FED. R. CIV. P. 30(d) advisory committee’s notes to 2000 amendment));

Dunn v. Fontenot, No. 20-1063, 2025 WL 1969931, at *3 (W.D. La. July 16, 2025) (quoting same).

21 FED. R. CIV. P. 30(d) advisory committee’s notes to 2000 amendment.

22 FED. R. CIV. P. 30(d) advisory committee’s notes to 2000 amendment; see also Retif v. ASI Lloyds, No. 19-4899,

2020 WL 6204309, at *2 (E.D. La. Apr. 6, 2020) (Douglas, M.J.) (quoting Kleppinger, 283 F.R.D. at 333); Keplar v.

Google, LLC, 346 F.R.D. 41, 52 (N.D. Tex. 2024) (quoting VeroBlue Farms USA Inc. v. Wulf, 345 F.R.D. 406, 424

(N.D. Tex. 2021)).

23 Kleppinger, 283 F.R.D. at 335-36 (“Defendants have shown that ‘good cause’ exists to grant leave to reopen

Plaintiff’s examination and to extend Plaintiff’s examination beyond Rule 30(d)’s prescribed limit of seven hours. It

does not appear to the Court that the . . . proposed areas of questioning will be unreasonably cumulative or duplicative.

Further, this does not appear to be a case where Defendants have had ample opportunity to obtain the information, or

where the burden or expense of taking Plaintiff’s second deposition outweighs its likely benefit.”).

24 Id. at 335-36 & 335 n.7 (finding “good cause” exists to grant leave to reopen Plaintiff’s examination and to extend

Plaintiff’s examination and noting “that other [out-of-circuit] courts have utilized a ‘good cause’ standard when

[determining whether to reopen or retake a deposition] pursuant to Rule 30(a)(2)(A)(ii)” (emphasis and brackets

added) (citing cases)); E.E.O.C. v. SkyWest Airlines, Inc., No. 22-1807, 2024 WL 1942124, at *3 (N.D. Tex. May 2,

2024) (“District Courts in the Fifth Circuit ‘have applied a good cause standard when deciding a motion to retake a

deposition,’ and they usually place the burden on the movant to establish good cause for the deposition.” (quoting

Chrastecky v. C. R. Bard, Inc., No. 19-1240, 2021 WL 2232013, at *2 (W.D. Tex. May 14, 2021) (citing Kleppinger,

283 F.R.D. at 333))), quoted in Prepared Food Photos Inc. v. Epic Sols. LLC, No. 22-37, 2025 WL 2025175, at *10

(W.D. La. July 18, 2025); Id. (“This good cause requirement is rooted in the language of Rule 26(b): essentially, to

establish good cause the movant must demonstrate that the discovery is consistent with Rule 26(b)(1) and (2).”).

questions that the discovering party would not have thought to ask at the first deposition.”25

“[N]ew information” justifying a second deposition may be “new parties were added to the case,”

“new allegations were made in the pleadings,” or “new documents were produced.”26 But if the

movant seeks information it could have obtained at the first deposition or could be gathered by

less burdensome means, it may not be entitled to conduct a second deposition.27 If the court allows

a second deposition “because of newly discovered information, the questioning of the witness is

limited to those questions relating to the newly produced information.”28

Rule 30(d)(2) authorizes the court to “impose an appropriate sanction—including the

reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays,

or frustrates the fair examination of the deponent.” “The meaning of ‘appropriate sanction’ . . .

has been broadly interpreted as ‘[t]he full scope of sanction available under Rule 30(d)(2) is not

expressly described in the text of the rule.’”29 Many courts have construed the rule to apply to

circumstances where a party’s conduct at a deposition warranted remedial action,30 but “Rule

25 Kleppinger, 283 F.R.D. at 333 (quoting Keck v. Union Bank of Switz., No. 94-4912, 1997 WL 411931, at *1

(S.D.N.Y. July 22, 1997)); see also Briggs v. Phebus, No. 12-2145, 2014 WL 1117888, at *3 (E.D. La. Mar. 19, 2014);

Retif, 2020 WL 6204309, at *1.

26 Kleppinger, 283 F.R.D. at 333 n.4 (citing cases), quoted in Doucet v. R.&R. Boats, Inc., No. 17-421, 2019 WL

13143669, at *2 (M.D. La. Oct. 11, 2019); accord. Donahue v. Wilder, No. 15-499, 2018 WL 9649984, at *2 (M.D.

La. Apr. 10, 2018) (citing Kress v. Price Waterhouse Coopers, No. 08-965, 2011 WL 5241852, at *1 (E.D. Cal. Nov.

1, 2011)); Keplar, 346 F.R.D. at 52 (quoting VeroBlue, 345 F.R.D. at 421).

27 SkyWest Airlines, 2024 WL 1942124, at *4 (citing Lowery v. Noble Drilling Corp., No. 96-3968, 1997 WL 675328,

at *1 (E.D. La. Oct. 29, 1997); Karr v. Four Seasons Maritime, Ltd., No. 02-3413, 2004 WL 797728, at *6 (E.D. La.

Apr. 12, 2004)); see also Kleppinger, 283 F.R.D. at 333 (“[T]he lack of diligence in obtaining information before the

initial or first deposition may result in a court denying leaving to conduct a second deposition.” (citing Fresnius Med.

Care Holdings, Inc. v. Roxane Lab’ys, Inc., No. 05-889, 2007 WL 764302, at *2 (S.D. Ohio Mar. 9, 2007) (citing

Lowery, 1997 WL 675328 (E.D. La. Oct. 29, 1997))); Briggs, 2014 WL 1117888, at *3 (same); Retif, 2020 WL

6204309, at *1 (same).

28 Kleppinger, 283 F.R.D. at 333 (quoting Ganci v. U.S. Limousine Serv., Ltd., No. 10-3027, 2011 WL 4407461, at *2

(E.D.N.Y. Sept. 21, 2021); see also Briggs, 2014 WL 1117888, at *3; Retif, 2020 WL 6204309, at *1; Keplar, 346

F.R.D. at 52 (quoting VeroBlue, 345 F.R.D. at 421).

29 Howell v. Avante Servs., LLC, No. 12-293, 2013 WL 824715, at *5 (E.D. La. Mar. 6, 2013) (Vance, J.) (quoting

Glick v. Molloy, No. 11-168, 2013 WL 140100, at *2 (D. Mont. Jan. 10, 2013)), quoted in MMR Constructors, Inc. v.

JB Grp. of La, LLC, No. 22-267, 2023 WL 3874008, at *2 (M.D. La. June 7, 2023) (citing cases); Keplar, 346 F.R.D.

at 52 (quoting VeroBlue, 345 F.R.D. at 422).

30 S. La. Ethanol, 2013 WL 1196604, at *8 (citing cases); Keplar, 346 F.R.D. at 52 (quoting VeroBlue, 345 F.R.D. at

422).

30(d)(2) permits the imposition of a sanction even for actions that occur while not in the deposition

itself.”31 “The movant bears the burden on any Rule 30(d)(2) motion that it makes.”32

While JOpen does not clearly describe the proposed topics for a second deposition of Dr.

Thundiyil, it apparently seeks to re-depose him regarding the delinquently produced posters and

studies reflected in them, as well the three news segments listed in the October 2025 CV. See ECF

No. 217-1 at 2 (arguing no publications or news segments relating to the Study were disclosed in

the doctor’s expert report and that the information is necessary for JOpen to assess the Study’s

veracity and methodologies). Given that the posters and news segments pre-dated Dr. Thundiyil’s

report but were not identified in either the report or CV,33 the Court permits JOpen to question Dr.

Thundiyil regarding same.

These posters and news segments should have been listed in the expert disclosures. See

FED. R. CIV. P. 26(a)(2)(B)(iv). Plaintiff’s assertion that Dr. Thundiyil did not timely update his

CV does not excuse that failure. Case law, as well as common sense, supports allowing a second

deposition where a party fails to disclose relevant information in its Rule 26(a) disclosure, which

it later reveals only after an intervening deposition has occurred.34 JOpen received the posters

after Dr. Thundiyil’s deposition; it is newly discovered information that JOpen could not have

asked about during the doctor’s first deposition as it did not have the posters. The news segments

are also newly discovered information that JOpen could not have asked about because it was not

made aware of the videos.

31 Howell, 2013 WL 824715, at *5 (citing Lammle v. Ball Aerospace & Techs. Corp., No. 11-3248, 2013 WL 179200,

at *2 (D. Colo. Jan. 17, 2013)).

32 Keplar, 346 F.R.D. at 52 (quoting VeroBlue, 345 F.R.D. at 421 (citing Kleppinger, 283 F.R.D. at 333)).

33 See ECF No. 217-1 at 5-6; No. 217-8 at 18.

34 Miller v. Fed. Express Corp., 186 F.R.D. 376, 389 (W.D. Tenn. 1999) (citing Dixon v. Certainteed Corp., 164 F.R.D.

685, 690-92 (D. Kan. 1996)) (ordering deposition of defendant’s former managing director reopened for the limited

purpose of questioning him concerning the subject matter of the documents produced the day after he was first deposed

for no more than 2 hours because defendant failed to disclose those documents per Rule 26(a)).

There is no indication that JOpen knew about the poster presentations and news segments

before the deposition; rather, its briefing indicates the opposite. See ECF No. 224 at 4 (“Defendant

seeks the opportunity to obtain documents and testimony that it would have sought in the first

place if proper disclosure had been made.”).35 And considering the minimal addition of deposition

time and that the trial for this case is more than a month away, the Court finds the burden Plaintiff

would facing producing Dr. Thundiyil minimal compared to benefit of his additional testimony.36

Contrary to Plaintiff’s assertion, allowing another deposition Dr. Thundiyil is not

unreasonably duplicative discovery as it is unclear when Dr. Thundiyil answered based on the

study reflected in Poster 1 or in Poster 2. See ECF No. 221-1 at 11-12 (47:17-48:6) (discussing

Posters 1 and 2 presentations and the doctor clarifying a previous answer by stating “Well, I sort

of combined the results of both of those when I told you about them”). Accordingly, the Court

finds good cause to permit JOpen to redepose Dr. Thundiyil for an additional 2 hours pursuant to

Rule 30(a)(2)(A)(ii) and (d)(1), but only with regard to the posters, studies, and news segments,

and JOpen may not re-ask any prior questions that were previously asked and answered.

Plaintiff bears the obligation to disclose a complete and accurate written report by Dr.

Thundiyil as described under Rule 26(a)(2)(B). See FED. R. CIV. P. 26(a)(2)(A)-(B) (“[A] party

must disclose to the other parties the identity of any witness it may use at trial to present evidence

. . . . [T]his disclosure must be accompanied by a written report . . . .”); FED. R. CIV. P. 37(c)(1)

(describing available sanctions against a “party” that “fails to provide information . . . as required

35 Cf. MMG Ins. Co. v. Samsung Elecs. Am., Inc., 293 F.R.D. 58, 63-64 (D.N.H. 2013) (finding, among other factors,

Plaintiff had “ample opportunity” to question defendants’ expert witness about a burn testing video that defendants

failed to disclose because Plaintiff learned of the existence of the video months before the expert’s deposition).

36 Cf. id. (finding, among other factors, the “significant burden of that the defendants would face in producing their

expert witness for a deposition during the final week before trial” to outweigh any benefit Plaintiff has in re-deposing

defendants’ expert witness despite failure to disclose a burn testing video in his expert report).

by Rule 26(a) . . . .”). Having failed to do so, in accordance with Rule 30(d)(2), Plaintiff must bear

all costs of the second deposition, including any expenses related to Dr. Thundiyil.

* * *

The current expert discovery deadline (February 20, 2026) has expired. ECF No. 195.

Under Rule 16(b)(4), a scheduling order “may be modified only for good cause and with the

judge’s consent.” Good cause “requires a showing that the relevant scheduling order deadline

cannot reasonably be met despite the diligence of the party needing the extension.”37 The Court

finds good cause to allow the second, 2-hour deposition and the disclosure and production of facts

or data ordered by the Court beyond the existing discovery deadline.38 The production must occur

by March 3, 2026. The deposition must be conducted on or before March 6, 2026.

IV. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that Defendant JOpen’s Motion to Preclude is DENIED.

IT IS FURTHER ORDERED that Defendant JOpen’s Motion to Compel is GRANTED

IN PART AND DENIED IN PART. Plaintiff must produce to JOpen the studies reflected in

Posters 1 and 2 and any facts or data related to them, including responsive documents and

communications requested by JOpen, that Dr. Thundiyil considered to form his opinions reflected

in his expert report by March 3, 2026. Facts and data not considered need not be disclosed and

produced.

37 In re Tarra Crosby, LLC, No. 17-5391, 2022 WL 1154836, at *1 (E.D. La. Apr. 19, 2022) (Ashe, J.) (quoting Garza

v. Webb Cnty., 296 F.R.D. 511, 513 (S.D. Tex. 2014) (citing S&W Enters., L.L.C. v. Southtrust Bank of Ala., NA, 315

F.3d 533, 535 (5th Cir. 2003))).

38 Id. at *1-2 (finding good cause to modify scheduling order to permit written discovery and second depositions

regarding issues which petitioners assert could not have been addressed in prior depositions).

IT IS FURTHER ORDERED that payment of reasonable expenses, including attorneys’

fees, is DENIED pursuant to Rule 37(a)(5)(C).

IT IS FURTHER ORDERED that Defendant JOpen’s Motion to Re-depose is

GRANTED, at Plaintiff’s expense, as described herein.

IT IS FURTHER ORDERED that the second deposition, limited to an additional 2 hours,

of Dr. Josef Thundiyil take place on or before March 6, 2026, for the limited purpose of addressing

the posters, studies reflected in them, and news segments; Defendant JOpen may not ask

duplicative questions previously asked in the first deposition.

New Orleans, Louisiana, this 26th day of February, 2026.

Lovrnlladtyy [uma

UNITED STATES MAGISTRATE JUDGE

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