Sipes v. Allstate Indemnity Company

Filing 188

ORDER denying 182 Plaintiff's Motion to Reopen Discovery to Conduct a Discovery Deposition of Allstate Witness Rand Smith. By Magistrate Judge Kathleen M. Tafoya on 10/8/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 11BcvB02369BPABBKMT
LARRY SIPES,
Plaintiff,
v.
ALLSTATE INDEMNITY COMPANY, an Illinois corporation,
Defendant.

ORDER

This matter is before the court on “Plaintiff’s Motion to Reopen Discovery to Conduct a
Discovery Deposition of Allstate Witness Rand Smith” [Doc. No. 182] filed September 24, 2013.
“Defendant’s Response to Plaintiff’s Motion to Reopen Discovery to Conduct a Discovery
Deposition of Allstate Witness Rand Smith (Doc. No. 182)” was filed on October 7, 2013. [Doc.
No. 187.]
Forty-two days preceding trial, in a case which was filed over two years ago and for which
discovery has been closed for over a year, Plaintiff moves to take the last minute deposition of one
of Defendant’s employees, a supervisory adjuster named Rand Smith. As grounds, Plaintiff
states that because he took the depositions of two other of Defendant’s adjusters, Stephanie
Littleton and Lori Kidwell, he determined that the deposition of Rand Smith, “who supervised
Stephanie Littleton and Lori Kidwell” (Mot. ¶ 10), was unnecessary. (Mot. ¶ 11.) Now, because

both Ms. Kidwell and Ms. Littleton1 have been listed on Allstate’s Witness List as “may call”
witnesses and Rand Smith has been listed as a “will call” witness, Plaintiff is justified in taking a
last minute deposition of Mr. Smith.
Rand Smith was the second name listed in Allstate’s initial disclosures as a person “likely
to have discoverable information that the disclosing party may use to support its claims or
defenses.” (Resp., Ex. A. at 1.) Rand Smith appeared on Allstate’s first Final Pretrial Order
[Doc. No. 63 filed December 3, 2012] and the Amended Final Pretrial Order [Doc. No. 109, filed
April 23, 2013] as a will call witness. Twice Mr. Smith appeared as a may call witness [Doc. No.
132 filed May 23, 2013 and Doc. No. 149 filed June 3, 2013] and most recently has made his third
appearance as a will call witness on Allstate’s Trial Witness List [Doc. No. 180 filed Sept. 16,
2013]. No witness list has ever been propounded by Allstate in this case that did not include Rand
Smith. Testimony was elicited by Plaintiff from both Ms. Littleton and Ms. Kidwell during their
depositions indicating that Rand Smith was a Special Investigative Unit adjuster with specialized
knowledge about the case and that he oversaw the case file. (Resp. at 3-4.) Nonetheless, the
Plaintiff determined not to take the deposition of Rand Smith until this twelfth hour request.
This court finds that there is no justification to re-open discovery for the purpose of taking
Mr. Smith’s deposition at this late date and to do so would be prejudicial to the Defendant whose
counsel would be interrupted in their trial preparation and strategy by this untimely request.

1 Both are out of state witnesses.

Therefore, it is ORDERED
“Plaintiff’s Motion to Reopen Discovery to Conduct a Discovery Deposition of Allstate
Witness Rand Smith” [Doc. No. 182] is DENIED.
Dated this 8th day of October, 2013.