Taylor v. Autozone, Inc.

Filing 326

ORDER denying 320 Motion to Take Preservation Deposition of Edward Lewis. Signed by Senior Judge Frederick J Martone on 1/7/2015.(LMR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael L. Taylor; Dilawar Khan; Volena)
Glover-Hale; Manuel Montoya, on behalf)
of themselves and other persons similarly)
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situated,
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Plaintiffs,
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vs.
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AutoZone Inc., a Tennessee corporation;)
AutoZone Inc., a Nevada corporation;)
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AutoZoners LLC,
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Defendants.
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No. CV-10-8125-PCT-FJM
ORDER

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We now have before us plaintiffs’ Motion to Take Preservation Deposition of Edward
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Lewis (doc. 320), defendants’ response (doc. 324), and plaintiffs’ reply (doc. 325).
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Discovery in this action closed on October 21, 2011. Three years after the close of discovery
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and on the eve of trial, plaintiffs now move to take a video preservation deposition of Edward
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Lewis, whose recent deterioration in health might prevent him from traveling to testify at
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trial.
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We will modify a Rule 16 scheduling order only upon the showing of good cause.
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Fed. R. Civ. P. 16(b)(4). The diligence of the moving party is the hallmark of good cause.
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Before the close of discovery, plaintiffs knew that Mr. Lewis, a non-party witness, had
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Parkinson’s Disease and lived in Indiana. Nevertheless, plaintiffs decided, before the close

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of discovery, not to take his deposition. In doing so, plaintiffs accepted the inherent risk that

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Mr. Lewis would be unable to testify at trial, either because of his known illness or for any

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other circumstance that might develop. If he was a critical witness he would have been

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deposed.

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Plaintiffs’ only effort to establish good cause is their statement that they recently

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learned that Mr. Lewis was no longer available to testify at trial. However, they make no

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effort to explain either the nature or significance of Mr. Lewis’s testimony, or whether the

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substance of his expected testimony cannot be elicited from another witness. Nor do

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plaintiffs offer any suggestion of a less burdensome alternative to an eleventh-hour

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deposition. Without more, we cannot conclude that plaintiffs acted diligently to preserve Mr.

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Lewis’s testimony. Good cause does not exist to modify our scheduling order three years

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after the close of discovery and on the eve of trial.

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IT IS ORDERED DENYING plaintiffs’ Motion to Take Preservation Deposition of
Edward Lewis (doc. 320).
DATED this 7th day of January, 2015.

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