The Court intends to DENY Plaintiffs Peter Gerlach and Bradina LLC's motion to exclude Defendants' expert witness Karl Schulze from testifying at trial for the following reasons:
(1) The evidence shows that following the Court's 9/3/10 minute order allowing Defendants to designate a tardy expert witness, Defendants offerred to produce Mr. Schulze for deposition on 10/11/10 and 11/3/10, both of which dates were agreeable to Plaintiffs. The deposition did not go forward on either date, but there is no indication that Defendants were to blame. Thus, it appears that Defendants did in fact make their designated expert witness available for deposition.
(2) While Defendants did fail to produce Mr. Schulze for his noticed 2/17/11 deposition, this was due to his unavailability and the fact that Defendants' counsel withdrew from this case on 2/15/11.
(3) Following Mr. Schulze's to appear on 2/17/11, Plaintiffs had time to file a timely motion to either compel his attendance or exclude his testim