Albright v. Mountain Home School District et al

Filing 65

OPINION AND ORDER granting in part and denying in part both 58 Motion for Extension of Time to Complete Discovery and 59 Motion to Quash. No further extensions of deadlines will be granted for discovery or dispositive motions. Signed by Honorable Timothy L. Brooks on March 17, 2017. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

JACKIE ALBRIGHT, as Parent and Next Best Friend of
CHILD DOE

v.

PLAINTIFF

CASE NO. 3:16-CV-3011

MOUNTAIN HOME SCHOOL DISTRICT;
DEBBIE ATKINSON , Director of Special Education; and
SUSANNE BELK, BCBA Consultant

DEFENDANTS

OPINION AND ORDER
Currently before the Court are Defendants Mountain Home School District's
("District") , Debbie Atkinson 's, and Susanne Belk's Motion to Extend Discovery Deadline
(Doc. 58) and Motion to Quash Plaintiff's Notices of Depositions (Doc. 59) ; Plaintiff Jackie
Albright's Responses and Supplement in opposition to these Motions (Docs. 60-62); and
Defendants' Combined Reply (Doc. 64) .

As explained below, both Motions are

GRANTED IN PART AND DENIED IN PART.
The Case Management Order ("CMO") in this case established a discovery
deadline of March 24 , 2017 . (Doc. 34 , p. 2) . It informed the parties that they "may conduct
discovery beyond this date if all parties are in agreement to do so ." Id. But it also stated
that "the Court will not resolve any disputes which may arise in the course of extended
discovery. " Id. It required that "[a]ll discovery requests must be propounded sufficiently
in advance of the discovery deadline to allow for a timely response ." And it cautioned the
parties that "[t]he Court will not grant a continuance because a party does not have time
in which to depose a lay or expert witness ." Id. at 3. Elsewhere , the CMO warned : "The

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deadlines set forth above are firm . Extensions and/or continuances will not be considered
absent very compelling circumstances." Id. at 7.
On February 21 , 2017 , Plaintiff propounded written discovery and deposition
notices on Defendants. See Doc. 62-1 . Specifically, Plaintiff provided notice of intent to
take the depositions of District Superintendent Jacob Long , Ms. Atkinson , and Ms. Belk,
at the District' s admin istrative offices on March 23 at 1O:OOam , March 23 at 2:00pm , and
March 24 at 1O:OOam , respectively . See Doc. 62-2 . The following day, new counsel
entered their appearances on behalf of Defendants, see Docs. 55-57 , and propounded
written discovery to Plaintiff, see Doc. 58-2.
Defendants ask the Court to extend the discovery deadline to April 15, 2017, and
to extend the dispositive motions deadline from March 31 to April 30 , 2017 , (Doc. 58 ,

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5-6), or in the alternative , to compel Plaintiff to provide early responses to their written
discovery, shortening her deadline by at least one business day to March 23, 2017 . See
id. at iT 7. The deadlines in this case were thoroughly discussed at the case management

hearing on July 22 , 2016 , and the CMO was entered three days later. Nevertheless, it
appears the parties, having ample notice of the deadlines in this case and of this Court's
general reluctance to extend them , decided to let an additional seven months pass before
beginning discovery. The only reason Defendants offer for why the Court should extend
these deadlines now is that they recently retained new counsel , who presumably wish
their client had begun discovery before they were retained. See id. at iT 4. But the Court
does not believe regrets of this sort, however well-founded , constitute "very compelling
circumstances" warranting an extension of the discovery deadline. (Doc. 34 , p. 7).

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Defendants also ask the Court to quash the deposition notices that Plaintiff served
on Defendants . (Doc. 59 , p. 2). Defendants offer two reasons in support of this request:
(1) their lead counsel is unavailable on the noticed dates, and (2) "these employees'
contracts do not allow them to be compelled to sit for depositions as parties to this
litigation on those dates," which fall on spring break. See id.

at~

2. The Court does not

find the first reason persuasive, because each Defendant is presently represented by no
less than four counsel of record-one who has been on this case from its inception and
has been practicing law in Arkansas since 1981 , and the other three who have been
practicing law in Arkansas since 1991, 1993, and 2012 . See id. at p. 3. The Court has
not been given any reason to believe that any of the three non-lead counsel are
unavailable on the noticed dates or incapable of competently defending the noticed
depositions on those dates.
As for the second reason, the Court observes that Ms. Atkinson and Ms. Belk are
named parties to this case; and although Mr. Long is not a party to this case , it appears
that Plaintiff is seeking the District's deposition through him under Fed . R. Civ. P. 30(b)(6)
in his capacity as Superintendent. See Doc. 58-3 , p. 2 ("Please note the Depositions
scheduled for March 23 & 24 are of the named Defendants .... "); cf. Gowan v. Mid
Century Ins. Co. , 309 F.R.D. 503, 513 (D.S.D . 2015) ("If a corporation is a party to an
action , an opposing party may name a particular person to depose , but that person must
be an officer, director, or managing agent of the corporate party in order to command that
person 's appearance via a notice of deposition served on the corporate party's attorney .
If the person selected for deposition is not an officer, director, or managing agent, then
the party seeking discovery must subpoena that deponent just as with any nonparty."

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(internal quotation marks and citations omitted)). In other words , all three individuals have
an independent obligation under the Federal Rules of Civil Procedure to appear for their
properly-noticed depositions , regardless of whether they have any contractual duty to do
so. See Fed . R. Civ. P. 37(d)(1 )(A)(i) (permitting the Court to order sanctions if "a party
or a party's officer, director, or managing agent-or a person designated under Rule
30(b)(6) or 31(a)(4)-fails, after being served with proper notice , to appear for that
person 's deposition").

So the Court also finds Defendants' second reason to quash

unpersuasive.
However, the Court observes that in their Reply, Defendants appear to offer a new,
additional argument that the depositions should be quashed because they are unduly
burdensome . Defendants explain:
As non-contract days, the District's superintendent has scheduled time off
with his family (and his wife has taken Paid Time Off from her job) , and the
District's most knowledgeable and instrumental person to assist with the
deposition preparation (Cassy Barnhill), and who attended Plaintiff's and
the former superintendent's depositions as the District's representative , has
rented a house and is scheduled to be at her stepdaughter's wedding in
Eureka Springs for preparations on Friday, March 31 and the wedding the
following day. Additionally, Suzanne Belk has paid $3 ,500 for an out-ofstate continuing education , which she provisionally has cancelled (without
a possibility of refund) because of the deposition notices, but will attend if
permitted . Finally, Debbie Atkinson and her husband were scheduled to
visit their son and grandchildren in Colorado.
(Doc. 64, ~ 5) .
Fed . R. Civ. P. 45(d)(3)(A)(iv) requires the Court to "quash or modify a subpoena
that . . . subjects a person to undue burden." And the Federal Rules also state that the
Court "may, for good cause , issue an order to protect a party or person from annoyance ,
embarrassment, oppression , or undue burden or expense ," Rule 26(c)(1) (emphasis
added) , by "specifying terms , including time and place . . . for the disclosure or discovery ,"
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Rule 26(c)(1 )(B). Here, the Court finds that the facts recited in the preceding paragraph
demonstrate "specific prejudice or harm" that the noticed deponents will suffer if the
deposition notices are not quashed . See Kinzer v. Remington Arms Co., Inc., 2011 WL
1659883, at *3 (D . Neb. May 3, 2011 ). Thus , the Court must quash or modify the notices.
However, the Court also finds that Plaintiff provided reasonable notice to the deponents
(here , thirty days prior to the depositions and thirty-one days prior to the discovery
deadline), and that it would unfairly prejudice her to prevent her from taking these
depositions before the dispositive motions deadline has passed.
IT IS THEREFORE ORDERED that Defendants Mounta in Home School District's,
Debbie Atkinson 's, and Susanne Belk's Motion to Extend Discovery Deadline (Doc. 58)
and Motion to Quash Plaintiff's Notices of Depositions (Doc. 59) are GRANTED IN PART
AND DENIED IN PART as follows : the depositions of Jacob Long , Debbie Atkinson , and
Suzanne Belk will not be taken on March 23 or 24, 2017. However, Defendants' counsel
shall accommodate the rescheduling of these three depositions at the convenience of
Plaintiff's counsel for dates that are no later than April 21 , 2017. The discovery deadline
remains March 24, 2017 for all other purposes.

The dispositive motions deadline is

extended to April 28 , 2017 . No further extensions of deadlines will be granted for
discovery or dispositive motions.

IT IS SO ORDERED on

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this ~ day of Marc

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, 017.