Pandeosingh v. American Medical Response, Inc. et al
ORDER granting 29 Motion to Reopen Discovery to Take Additional Depositions for Discovery. The depositions of Trace Skeen and Marsh USA shall be taken on or before January 12, 2015 by Magistrate Judge Kathleen M. Tafoya on 10/28/14.(jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–01792–PAB–KMT
AMERICAN MEDICAL RESPONSE, INC.,
GLOBAL MEDICAL RESPONSE, INC., and
EMERGENCY MEDICAL SERVICES CORP.,
This matter is before the court on “Plaintiff’s Motion to Reopen Discovery to Take
Additional Depositions” filed July 23, 2014 [Doc. No. 29]. “Defendants’ Opposition to
Plaintiff’s Motion to Take Additional Depositions” (“Resp.”) [Doc. No. 52] was filed on August
13, 2014 and Plaintiff replied on August 25, 2014 (“Reply”) [Doc. No. 62]. The matter is ripe
for review and ruling.
Plaintiff seeks to reopen discovery for the purpose of taking the depositions of nonparties Trace Skeen and corporate designees of Marsh USA. Plaintiff asserts that it has good
cause to take these depositions outside the previously designated discovery period as a result of
late disclosures and because certain critical documents were not produced by Defendants until
after the February 4, 2014 close of discovery.
Plaintiff asserts that in December 2013, Defendants first alerted the plaintiff to the
existence of GMR 1 former employee, Trace Skeen, a witness who had not been disclosed up to
that point. Plaintiff alleges that Mr. Skeen had significant involvement in the formation of
GMRTT and the day-to-day control Defendants exerted over GMRTT, however Defendant GMR
allegedly did not timely produce documents while the case was pending in the Eastern District of
New York concerning Mr. Skeen so that a deposition could be scheduled.
Marsh USA was the insurance brokerage firm to whom Ron Thackery, the Safety and
Risk Manager of EMSC/AMR, allegedly made representations about AMR’s control over
GMRTT to enable AMR to obtain insurance coverage for the 2008 ambulance explosion in
Trinidad. Plaintiff asserts that although some of the email correspondence between Marsh USA
and Thackery has been produced by Defendants, some was withheld, preventing the Plaintiff
from being able to adequately examine a Marsh USA representative prior to the expiration of the
Defendants’ objection to Plaintiff’s request to take these two depositions is primarily
based on timeliness. Additionally, as to Marsh USA, Defendants argue that one or more
documents about which Plaintiff seek to inquire do not exist and, therefore, reopening discovery
would be a waste of time. Further, Defendants argue that Mr. Thackery’s comments to Marsh
USA occurred in 2010, two years after the 2008 accident, for the purposes of obtaining insurance
Defendant Global Medical Response, Inc., will hereinafter be referenced as GMR.
Additionally, Defendant American Medical Response, Inc. will hereinafter be referenced as
AMR; Defendant Emergency Medical Services Corp. will hereinafter be referenced as EMSC;
and, non-party Global Medical Response of Trinidad & Tobago, will hereinafter be referenced as
going forward, not with respect to coverage for the 2008 incident. Defendants assert that these
comments are therefore irrelevant.
Legal Standard for Reopening Discovery
The Court may modify scheduling orders upon a showing of good cause. See Fed. R. Civ.
P. 16(b)(4); D.C.COLO.LCivR 16.1. Whether to modify a scheduling order “to extend or reopen
discovery is committed to the sound discretion” of the Court. Smith v. United States, 834 F.2d
166, 169 (10th Cir. 1987).
When exercising its discretion, the Court considers the following
factors: (1) whether trial is imminent; (2) whether the request to reopen or extend discovery is
opposed; (3) whether the nonmoving party would be prejudiced; (4) whether the moving party
was diligent in obtaining discovery within the guidelines established by the Court; (5) the
foreseeability of the need for additional discovery in light of the time allowed for discovery by
the Court; and (6) the likelihood that discovery will lead to relevant evidence. Id.; see also
Celani v. Neumeyer, No. 09-cv-01501-PAB-KLM, 2011 WL 4972058, at *2-4 (D. Colo. Oct. 19,
The Smith Factors
Imminence of Trial
When this motion was originally filed in Case No. 09-cv-05143-FB-RER in the Eastern
District of New York, the parties were subject to District Judge Block’s accelerated trial
schedule. In this District, however, no trial has yet been set nor will one be set until a Final
Pretrial Conference is held and a Final Pretrial Order entered. The Court finds that depositions
of Trace Skeen and of Marsh USA may be reasonably accomplished in a short amount of time.
The first Smith factor, therefore, weighs in favor of granting Plaintiff’s motion.
Whether the Request is Opposed
Defendants oppose the reopening of discovery to allow Plaintiff to take these two
depositions. However, the only argument advanced is that Plaintiff somehow should have
known how important Trace Skeen might be to the litigation in spite of Defendants’ late
production of documents and failure to disclose pursuant to Fed. R. Civ. P. 26(a)(1). This court
disagrees. Although Plaintiff acknowledges she first learned about Trace Skeen’s existence in
December 2013, it was only after the February 21, 2014 document production – several weeks
after the close of discovery -- that she learned Trace Skeen (1) was invited to attend all GMRTT
board meetings; (2) supervised and instructed Paul Anderson, the CEO of GMRTT, in carrying
out the daily operation of GMRTT; and (3) negotiated with the Ministry of Health of Trinidad
and Tobago on GMRTT’s behalf. (See Plaintiff’s Motion for Sanctions and Adverse Inferences
for Defendants’ Failure to Comply with the Court’s November 1, 2013, January 9, 2014, and
February 7, 2014 [“Pl.’s Mot. Sanctions & Adv. Inf.”], Doc. Nos. 28, 36 at 15-17 (citing
documents from Defendants’ February 21, 2014 production).
As to Marsh USA, Plaintiff alleges that in 2010 Ron Thackery represented to Marsh USA
that “AMR has active control” over GMRTT for purposes of insurance coverage. (See argument
more fully developed in Pl.’s Mot. Sanctions & Adv. Inf. at 7-9). Plaintiff duly questioned Mr.
Thackery during his deposition on January 23, 2014, approximately one week before the close of
discovery, about his representations to and discussions with Marsh USA regarding the existing
insurance coverage; however, it appears that Mr. Thackery’s memory was less than sterling.
(Resp. at 2; Reply, Ex. 1, Deposition of Ronald Thackery, at 138:8-146:10.) Further, Plaintiff
alleges Defendants did not produce any documents referencing Marsh USA until January 11,
2014—less than a month before the close of discovery. The fact that there is a dispute over the
context of Mr. Thackery’s representations further supports the need for a deposition of Marsh
This Court finds that Defendants objections are not well-founded based on the history of
this case, including the finding that the Eastern District of New York lacked jurisdiction over
GMR. Therefore, the second factor weighs in favor of granting Plaintiff’s request.
Whether the Non–Moving Party would be Prejudiced
Defendants can point to no prejudice which will inure to them if the two depositions are
allowed to go forward and the court’s independent review has revealed none. Dispositive
motions have not been filed nor is there a deadline mandated for such filings and, as previously
noted, no Final Pretrial Order has been entered and no trial is scheduled.
From this court’s reading of the many discovery orders of Magistrate Judge Reyes and
District Judge Block, it appears that it has been the Defendants who have prolonged the
discovery process and repeatedly violated court orders. (See this court’s Order, [Doc. No. 75]
dated October 20, 2014.) Plaintiff has been required to file numerous motions to compel and
depositions already have been reopened once to cure the prejudice to Plaintiff. All counsel are
deeply familiar with the case, so additional depositions will not be unduly burdensome.
This Court finds that allowing the depositions of Trace Skeen and Marsh USA is not
unduly prejudicial to Defendants. Accordingly, the third Smith factor weighs in favor of granting
Diligence of Moving Party
Defendants do not dispute they failed to identify Trace Skeen in their initial disclosures,
or in any supplements thereto. Plaintiff asserts that Trace Skeen is a very important witness
concerning issues of control of GRMTT by the defendants. Plaintiff alleges that Defendants did
not search for or produce documents from Mr. Skeen’s computer until after both the close of
discovery and the originally scheduled February 18, 2014 trial date. When they did search the
computer, Plaintiff alleges Defendants identified 2,000 potentially relevant emails plus
attachments “going back to the initial formation of GMR and GMRTT up to March 2011,” and
produced these to Plaintiff on February 21, 2014, weeks after the close of discovery. (Reply at
The Court finds that Plaintiff has acted diligently but has been thwarted by Defendants
failure to timely produce requested documents. Therefore, it is in the interest of justice to reopen
discovery on a limited basis. The fourth Smith factor weighs in favor of granting Plaintiff’s
Foreseeability of the Need for Additional Discovery
This Court finds that plaintiff has adequately explained why the need for the two
depositions was not reasonably foreseeable during the Court-prescribed discovery period. Given
the late production of documents and Mr. Thackery’s failure of memory at his deposition, the
Plaintiff acted promptly in trying to reopen discovery to take the two depositions. (See Doc. No.
1-269, Plaintiff’s Letter Seeking to Reopen Discovery to Take Additional Depositions, filed
March 14, 2014 in the Eastern District of New York.) Therefore, the fifth Smith factor weighs in
favor of granting Plaintiff’s motion.
Likelihood that Discovery will Lead to Relevant Evidence
Mr. Skeen obviously possesses evidence relevant to this litigation, and specifically
related to the control Defendants are alleged to have exercised over non-party GMRTT during
the relevant time period. The Defendants also acknowledge Mr. Skeen’s “involvement in the
formation of GMRTT” in their Response. (Resp. at 1.) Further, the Defendants do not challenge
the Plaintiff’s assertion that documents concerning Mr. Thackery and his discussions with Marsh
USA were produced late, although they posit that Mr. Thackery’s discussions will be irrelevant
to the issues in this case. The court disagrees with Defendants. Mr. Thackery’s representations
to any entity or individual that AMR controls GMRTT, if such representations were indeed
made, are highly relevant to the issues in this case and would likely be admissible at trial. See
Spacecon Specialty Contractors, No. 09-cv-02080-REB-KLM, 2010 WL 4823056, at *4 (D.
Colo. Nov. 15, 2010) (sixth Smith factor weighed in favor of reopening discovery “[b]ecause
relevancy during the discovery process is broadly construed, the Court agrees with Plaintiff that
deposing [the witness] is likely to yield relevant evidence.”).
All six of the Smith factors weigh in favor of granting Plaintiff’s motion. Therefore, the
Court will reopen discovery for the limited purpose of allowing Plaintiff to depose Trace Skeen
and take the Fed. R. Civ. P. 30(b)(6) deposition of Marsh USA upon proper notice.
It is ORDERED
“Plaintiff’s Motion to Reopen Discovery to Take Additional Depositions” [Doc. No. 29]
is GRANTED. The depositions of Trace Skeen and Marsh USA shall be taken on or before
January 12, 2015.
Dated this 28th day of October, 2014.
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