Liberty Life Insurance Company v. Myers et al

Filing 277

ORDER granting in part and denying in part 236 Motion Seeking Ruling. Specifically, the Court denies Defendant's request to deny Plaintiff the use of the account records and the Indemnity Agreement. The Court grants Defendant's request to deny Plaintiff the use of the Robert Comeau deposition. Signed by Judge James A Teilborg on 2/11/13. (LAD)

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1 WO 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 Liberty Life Insurance Company, 12 No. CV 10-2024-PHX-JAT Plaintiff, 13 ORDER v. 14 Eric L. Myers, et al., 15 Defendants. 16 17 18 Pending before the Court is Defendant Eric L. Myers’ Motion Seeking Ruling by 19 Judge Teilborg Regarding the Court’s Rule 16 Scheduling Order (Doc. 236). Plaintiff 20 Liberty Life has filed a Response (Doc. 238) and Defendant has filed a Reply (Doc. 241). 21 Defendant requests that the Court deny Plaintiff’s use of three items of discovery 22 because Defendant contends that these three items were “sought” after the February 29, 23 2012, discovery deadline. (Doc. 236 at 2). 24 I. BACKGROUND 25 On December 12, 2010, in the Rule 16 Scheduling Order, the Court set the 26 discovery deadline for September 30, 2011. (Doc. 52 at 2). In that Order, this Court made 27 it clear that, 28 the Court will not entertain discovery disputes after the close of 1 8 discovery barring extraordinary circumstances. Therefore, the parties shall complete all discovery by the deadline . . . (complete being defined as including the time to propound discovery, the time to answer all propounded discovery, the time for the Court to resolve all discovery disputes, and the time to complete any final discovery necessitated by the Court’s ruling on any discovery disputes). Thus, “last minute” or “eleventh hour” discovery which results in insufficient time to undertake additional discovery and which requires an extension of the discovery deadline will be met with disfavor, and may result in denial of an extension, exclusion of evidence, or the imposition of other sanctions. 9 (Id. at 3 n. 3). On October 24, 2011, in response to the parties’ Motion to Extend 10 Discovery and Disclosure Deadlines (Doc. 160), the Court moved the discovery deadline 11 back to February 29, 2012. (Doc. 164 at 2). 2 3 4 5 6 7 12 Defendant wants the Court to deny Plaintiff the use of Defendant’s account 13 records from Bank of America, the indemnification agreement between Eric Myers, 14 Brooke Myers Wilson, Erin Myers Stoloff, and Kirsten Anne Reggiano and any 15 communications leading to the execution of the indemnification agreement, and the 16 deposition of Robert Comeau. (Doc. 236 at 2). 17 II. The Bank of America Account Records 18 Liberty Life first served Bank of America with its subpoena duces tecum (the 19 “Subpoena”) for Defendant’s account records on January 7, 2011. On January 24, 2011, 20 Defendant added to his motion to stay discovery (Doc. 67) and objected to the Subpoena 21 arguing that his account records were not relevant to any claims. (Doc. 76 at 1). On 22 February 25, 2011, the Court denied Defendant’s motion to stay discovery and ordered 23 Defendant to respond to any outstanding discovery within twenty days of the order. (Doc. 24 87). Evidently this Order by the Court was not clear enough. Almost one year later, on 25 January 31, 2012, with the request for the account information still outstanding, Plaintiff 26 sent a letter to Defendant inquiring about the Subpoena. (Doc. 238-1 at 3). On February 27 21, 2012, the parties conducted another hearing before the Court regarding the Subpoena. 28 The Court again overruled Defendant’s objections and explicitly ordered Bank of America -2- 1 to respond to the Subpoena. (Doc. 214). On February 23, 2012, Plaintiff sent a copy of 2 the order to Bank of America to produce documents responsive to the Subpoena. Bank of 3 America’s responsive documents were received by Plaintiff on March 9, 2012. 4 Defendant proffers no argument why he did not comply with this Court’s order in 5 February 2011 (Doc. 87) denying his motion to stay discovery and therefore his addition 6 to his motion to discovery (Doc. 76) (arguing against the Subpoena). The Order explicitly 7 instructed Defendant to respond to any outstanding discovery within twenty days of the 8 order. (Doc. 87). Instead, Defendant continued to object to the discovery request until the 9 Court had to deny the objection a second time. (See Doc. 214). Defendant’s actions were 10 the overwhelming reason the account records were not turned over prior to the discovery 11 deadline. Accordingly, the Court denies Defendant’s motion to suppress the account 12 records. 13 III. The Indemnification Agreement 14 Similar to the Bank of America records, the sole reason the Indemnification 15 Agreement (the “Agreement”) was not turned over prior to the discovery deadline was 16 Defendant’s actions. Plaintiff requested the Agreement on January 30, 2012. Defendant 17 objected to the request and appeared telephonically before the Court to argue his objection 18 on February 21, 2012. The Court overruled Defendant’s objection to producing the 19 Agreement. 20 immediately produce the Agreement. Defendant continued to object on other grounds to 21 production. Defendant appeared before the Court again on March 6, 2012, arguing why 22 he should not have to produce the Agreement. For the second time, the Court overruled 23 Defendant’s objections and ordered him to produce the Agreement. 24 Defendant turned over the Agreement on March 6, 2012. (Doc. 214). Apparently this did not make it clear to Defendant to (Doc. 222). 25 For the same reasons the Court denied Defendant’s request regarding the account 26 records, the Court denies Defendant’s request to suppress the Indemnification Agreement. 27 Defendant’s actions were the reason the account records were not turned over prior to the 28 discovery deadline. -3- 1 IV. Robert Comeau Deposition 2 Defendants Donald and Joan Myers disclosed that they intended to call Robert 3 Comeau as an expert witness at trial on December 2, 2011. Plaintiff’s counsel waited over 4 two months, until February 16, 2012, to schedule Mr. Comeau’s deposition. The first 5 available date for the deposition was March 5, 2012, five days after the deadline. 6 Contrary to Defendant’s argument that this item of discovery was not “sought” until after 7 the deadline, Plaintiff tried to address the deposition prior to the deadline. However, 8 under the definition of complete that this Court made both parties aware of in the Rule 16 9 Scheduling Order, Plaintiff failed to ensure that discovery was complete prior to the 10 discovery deadline. Accordingly, the Court grants Defendant Eric L. Myer’s request to 11 deny Plaintiff the use of this item of discovery. 12 V. CONCLUSION 13 Based on the foregoing, 14 IT IS ORDERED denying in part and granting in part Defendant Eric L. Myer’s 15 Motion Seeking Ruling Re: the Rule 16 Scheduling Order (Doc. 236). Specifically, the 16 Court denies Defendant’s request to deny Plaintiff the use of the account records and the 17 Indemnity Agreement. The Court grants Defendant’s request to deny Plaintiff the use of 18 the Robert Comeau deposition. 19 Dated this 11th day of February, 2013. 20 21 22 23 24 25 26 27 28 -4-

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