Dorroh v. Deerbrook Insurance Company

Filing 153

ORDER RE: Reopening Discovery re 135 signed by Magistrate Judge Erica P. Grosjean on 11/16/2015. (Martinez, A)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

ROBERT DORROH et al.,
Plaintiffs,

11
v.

12
13

No. 1:11-cv-2120 AWI-GSA

ORDER RE: REOPENING DISCOVERY

DEERBROOK INSURANCE
COMPANY,
(Doc. 135)

14
Defendant.
15
16

I.

17
18
19

Introduction
This case has a lengthy factual and procedural history that is known to the parties and will

not be recited here. Pending before the Court is Plaintiff, Cedar Sol Warren‟s (“Plaintiff”)
Motion to Reopen Discovery. (Doc. 135).1 The Court has considered Plaintiff‟s motion,

20
21

Deerbrook Insurance Co.‟s (“Defendant”) Opposition (Docs. 144 and 146), and Plaintiff‟s Reply

22

(Doc. 148). A hearing was held on November 13, 2015. (Doc. 149). For the reasons set forth

23

below and as stated on the record at the hearing, Plaintiff‟s Motion to Reopen Discovery (Doc.

24

135) is DENIED IN PART AND GRANTED IN PART.

25

///

26
27
28

1

Plaintiff Warren, a newly added party in this action, seeks to obtain discovery into circumstances and events
following the initial refusal to settle the insurance claim at issue in this case for $15,000, including the decision to tell
Warren he needed to file for bankruptcy, Deerbrook‟s agreement to pay for Warren‟s bankruptcy, as well as policies
and procedures regarding how Deerbrook defends actions where the insured is facing an excess judgment after a
prior policy limit demand was rejected. (Doc. 135-1, pg. 2).

1

1
2
3
4
5
6
7
8

II.

Discussion
Fed. R. Civ. P. 16(b)(2) and (3) requires district courts to enter scheduling orders to

establish deadlines for, among other things, “to file motions” and “to complete discovery.” A
modification of the scheduling order requires a showing of good cause. Fed. R. Civ. P. 16(b)(4).
Scheduling orders “are at the heart of case management,” Koplve v. Ford Motor Co., 795 F.2d 15,
18 (3rd Cir.1986), and are intended to alleviate case management problems. Johnson v. Mammoth

9

Recreations, Inc., 975 F.2d 604, 610 (9th Cir.1992). “[A] schedule may be modified „if it cannot

10

be reasonably met despite the diligence of the party seeking the extension.‟” Zivkovic v. Southern

11

California Edison Co., 302 F. 3d 1080, 1087 (9th Cir. 2002) quoting Johnson v. Mammoth

12
13

Recreations, Inc., 975 F. 2d 604, 607 (9th Cir. 1992)).
Plaintiff Warren has filed this Motion to Reopen Discovery because the Ninth Circuit held

14
15

that he should be substituted into this action to pursue wrongs of a personal nature, including

16

emotional and punitive damages. (Docs. 127 and 128). Deerbrook has opposed the motion on

17

several bases. However, the main thrust of its position is that all the discovery on the liability

18

phases of the case has been completed by the Dorrohs, and since Mr. Warren‟s relief is limited to

19

emotional and punitive damages, additional discovery on liability issues should be precluded.

20

While the Court is sympathetic to Deerbrook‟s position, Mr. Warren has established good

21
cause to reopen discovery because he is a newly added party in this case. Some of his claims-22
23

specifically, the circumstances surrounding his bankruptcy proceedings, and subsequent

24

negotiations he had with Deerbrook--are personal to him and relate directly to his claims for

25

emotional and punitive damages. He was not permitted to propound any discovery previously, or

26

to ask questions during prior depositions. Finally, the case is not currently set for trial so any

27

prejudice to the Defendant is minimal. Nevertheless, the Court will only grant a subset of the

28

requested discovery in order to further minimize any prejudice to the Defendant.

2

1
2

III.

Conclusion

3

For the reasons set forth above, Plaintiff Warren‟s Motion to Reopen Discovery (Doc.

4

135) is DENIED IN PART AND GRANTED IN PART. The Court will permit the following

5

narrowly tailored discovery:

6
1. Plaintiff Cedar Sol Warren may take up to one full day (seven hours) of deposition

7
8
9

testimony of Persons Most Knowledgeable (“PMK”) on various topics.2 Plaintiff Warren shall
notice the exact topics of the PMK depositions. The topics shall be limited to Mr. Warren‟s

10

emotional and punitive damages claims and any liability issues associated with those claims. Mr.

11

Warren should use his best efforts to refrain from posing questions that have already been

12
13

answered before in discovery. If the parties have difficulty agreeing on the deposition topics, they
shall contact chambers for assistance in advance of the deposition(s). Any such depositions shall

14
15
16

be completed within sixty (60) days of this Order. Only Mr. Warren can ask questions at the
depositions. However, the Dorrohs may be present;
2. Thirty (30) days after the completion of the above discovery, Warren shall serve expert

17
18

reports and disclosures regarding his emotional distress and punitive damages only, as required

19

by FRCP 26(a)(2);

20

3. Any depositions of experts disclosed by Warren shall be completed 45 days after

21
service of the expert reports; and
22
4. Any rebuttal expert reports are due thirty days after the depositions of Mr. Warren‟s

23
24

experts are completed.

25

IT IS SO ORDERED.

26
Dated:
27

November 16, 2015

/s/
UNITED STATES MAGISTRATE JUDGE

28
2

The seven hour period can be divided into multiple witnesses.

3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4