Airbus DS Optronics GmbH v. Nivisys LLC et al

Filing 227

ORDER: IT IS ORDERED that Plaintiff's discovery motions (Docs. 223 and 225 ) are denied. See attached Order for details. Signed by Senior Judge James A Teilborg on 10/21/2016. (KAL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Airbus DS Optronics GmbH,
Plaintiff,

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ORDER

v.

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No. CV-14-02399-PHX-JAT

Nivisys LLC, et al.,

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Defendants.

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Pending before the Court are two discovery motions filed by Plaintiff. First,

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Plaintiff seeks to have this Court compel certain third parties to respond to Rule 45

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subpoenas and for leave to disclose those responses to Defendants after the close of

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discovery. Doc. 223. With regard to the motion to compel, it does not appear that any of

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the third parties were given notice of this motion or the opportunity to respond as the

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mailing certification does not reflect any service on said parties. Thus, the motion to

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compel is denied for lack of notice.

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Moreover, discovery in this case closed on October 14, 2016. Plaintiff waited

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until September 9, 20, 29 and 29, 2016, to serve the four subpoenas at issue. Although

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Plaintiff included return dates on the subpoenas that were before the close of discovery,

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none of the four third parties at issue could comply before October 14, 2016. Thus,

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Plaintiff asks this Court to extend Plaintiff’s deadline to make disclosures until October

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29, 20161 (three days after each subpoena will be complied with based on Plaintiff’s

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The Court notes this is a Saturday; thus, Plaintiff may really mean October 31,

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current understanding). Plaintiff has failed to show any cause, much less good cause,

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why these subpoenas could not have been issued after this Court’s Rule 16 conference on

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December 10, 2014, but before September 2016 to ensure time for compliance before the

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close of discovery.

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This Court’s Rule 16 Order requires the parties to make disclosures “in a timely

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manner so as to allow for meaningful discovery prior to the discovery deadline….” Doc.

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16 at 4. Here, Plaintiff seeks to make these disclosures after the close of discovery,

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giving Defendants no opportunity to take any discovery regarding this addition

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information.

Further, Plaintiff seeks to make these disclosures after the dispositive

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motion deadline of October 28, 2016, giving Defendants no opportunity to use or address

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this information in their motions, if any. These two facts result in significant prejudice to

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Defendants.

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Finally, the Court’s Rule 16 Order warned: “‘last minute’ or ‘eleventh hour’

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discovery which results in insufficient time to undertake additional discovery and which

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requires an extension of the discovery deadline will be met with disfavor, and may result

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in denial of an extension, exclusion of evidence, or the imposition of other sanctions.”

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Doc. 16 at 3, n. 2. Additionally, the Court has previously told the parties that there would

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be no further extensions of these deadlines. Doc. 186 at 2, n.1. Thus, Plaintiff was well

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aware that delaying the issuance of these subpoenas until so close to the close of

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discovery could result in preclusion. For all of the forgoing reasons, Plaintiff’s motion at

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Doc. 223 will be denied.

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Second, Plaintiff seeks to compel Defendant Nivisys, LLC (hereinafter

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“Defendant”) to produce additional documents in response to Plaintiff’s request for

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production served on September 6, 2016. Doc. 225. (It is undisputed that Defendant

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timely responded on October 6, 2016; the issue is whether Defendant should provide

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additional documents). The parties were unable to call the Court and schedule the

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required discovery dispute conference call before the close of discovery (October 14,

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2016.
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2016); thus, Plaintiff filed the pending motion to compel on the day discovery closed.2

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In addition to all of the warnings stated above regarding the Court’s unwillingness

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to entertain last minute discovery disputes, the Court’s Rule 16 order also includes the

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following Order: “[T]he parties shall complete all discovery by the deadline set forth in

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this Order (complete being defined as including the time to propound discovery, the time

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to answer all propounded discovery, the time for the Court to resolve all discovery

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disputes, and the time to complete any final discovery necessitated by the Court’s ruling

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on any discovery disputes).” Doc. 16 at 3, n. 2. Clearly filing a discovery motion on the

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day discovery closes runs afoul of all of this Court’s requirements.

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Thus, Plaintiff’s motion at Doc. 225 is untimely, and will be denied accordingly.
Additionally, it is procedurally improper under this Court’s Rule 16 scheduling Order.

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Based on the foregoing,

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IT IS ORDERED that Plaintiff’s discovery motions (Docs. 223 and 225) are

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denied.
Dated this 21st day of October, 2016.

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The parties are very familiar with the required procedure, since they have had
six separate discovery dispute hearings not counting the current dispute. Nonetheless, the
Court’s Rule 16 Order requires: “In the event of a discovery dispute, the parties shall
jointly contact the Court via conference call to request a telephonic conference. … The
parties shall not file any written materials related to a discovery dispute without express
leave of Court.” Doc. 16 at 4.
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