Winn-Dixie Stores, Inc. et al v. Southeast Milk, Inc. et al

Filing 282

ORDER denying without prejudice 222 the plaintiff's motion to compel discovery. Signed by Magistrate Judge Patricia D. Barksdale on 9/30/2019. (KNR)

United States District Court
Middle District of Florida
Jacksonville Division
WINN-DIXIE STORES, INC.,
Plaintiff,
v.

NOS. 3:15-cv-1143-J-39PDB
3:18-mc-14-J-34PDB

SOUTHEAST MILK, INC., ETC.,
Defendants.

Order
Earlier in the case, the Court denied the plaintiff’s motion to strike witnesses
in the defendants’ amended disclosures, adding, “If discovery is needed from someone
not specifically listed until recently, the Court will entertain a request to obtain the
discovery.” See Doc. 141 at 1–5 (motion), Doc. 178 at 14–15 (order). In an order
overruling an objection to the denial of the motion to strike, the Court recognized the
“many challenges associated with litigating such a complex case” and emphasized
that the parties must abide by the rules on case management and exhibit “the utmost
level of professionalism” at all times. Doc. 184 at 4.
Before the Court is a motion for discovery by the plaintiff that followed that
order. Doc. 222. The plaintiff moves to compel the defendants to identify and narrow
the list of witnesses they intend to call at trial and for leave to obtain discovery from
any newly named witnesses. Doc. 222 at 2. The plaintiff states the defendants have
acknowledged they will not try to call 2000 witnesses at trial but have refused to
identify the witnesses they likely will call. Doc. 222 at 2. The plaintiff further moves
to compel those witnesses identified for the first time in the amended disclosures and
identified in the narrowed list to respond to a request for production of documents

and interrogatories. Docs. 222, 222-1, 222-2. For the witnesses who are farmers, the
proposed request for production seeks documents related to their farming businesses
for the decade from 2003 to 2013, including tax returns. Doc. 222-1 at 10–11. The
plaintiff explains a need for the discovery for trial, not for dispositive-motion
purposes. See generally Doc. 222.
The defendants contend the motion is a “belated request” to reconsider the
order overruling the objections to the order on the motion to strike. Doc. 224 at 1. The
defendants emphasize discovery is closed, their amended disclosures list only those
likely to have discoverable information, and witnesses who have never been deposed
routinely testify at trials. Doc. 224 at 3. The defendants complain the plaintiff seeks
to advance the deadline for disclosing witness lists only for the defendants. Doc. 224
at 3. The defendants contend the plaintiff strategically decided to depose only three
potential witnesses related to only two defendants and should not be permitted to
revisit that strategy. Doc. 224 at 3. And the defendants observe that because the
parties do not yet know what issues will be tried, granting the motion will cause
wasted resources on both sides. Doc. 224 at 4.
Since the plaintiff moved for discovery, a lot has happened in the case. Previous
deadlines have been vacated at the plaintiff’s request. Docs. 227, 229. A previous
plaintiff has been dismissed from the case at the plaintiff’s request. Doc. 232. A
previous motion for summary judgment has been granted in part. Doc. 234. A
settlement conference has been conducted. Doc. 250. Another previous motion for
summary judgment has been granted in part. Doc. 257. New deadlines have been
entered. Doc. 258. And several more substantive motions have been filed and remain
pending: a motion to strike the defendants’ affirmative defense of lack of standing
about the plaintiff’s purchase of raw milk, Doc. 259, a motion to exclude the opinions
of the plaintiff’s expert Dr. John Connor, Doc. 260, a motion to exclude or limit the
opinions of the defendants’ experts, Doc. 263, a motion for summary judgment by the

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defendants, Doc. 264, and a motion for partial summary judgment by the plaintiff,
Doc. 267.
Remaining true is the defendants’ observation that because the parties do not
yet know what issues will be tried, granting the motion will cause wasted resources
on both sides (plus, significantly, wasted resources of third parties). Guided by
Federal Rule of Civil Procedure 1, the Court denies the plaintiff’s motion for
discovery, Doc. 222, without prejudice to requesting more tailored discovery at the
pretrial conference, after issues have been narrowed and witness lists have been
exchanged. By then, the parties will have a better understanding of what discovery
if any should be allowed as a matter of fairness and reasonableness, considering
relevancy, proportionality, the circumstances leading to the motion, and the witnesslist designations. See Fed. R. Civ. P. 26(a)(3)(A)(i) (party must separately identify the
witnesses the party expects to present and those the party may call if the need arises);
Doc. 258 ¶ 4 (“[T]he parties are directed to meet the pretrial disclosure requirements
in Fed. R. Civ. P. 26(a)(3)[.]”).
Under the new deadlines, the parties must file the pretrial statement on
December 9, 2019, and must exchange witness lists by December 18, 2019. Doc. 258.
The final pretrial conference will be conducted at 10:00 a.m. on December 18, 2019.
Doc. 258. Trial is scheduled for the January 2020 trial term. Doc. 258. There
accordingly will be a short turnaround between the pretrial conference and the trial,
and discovery will have to be done on an expedited basis during the holiday season.
But the likelihood of discovery—much less substantial discovery—seems exceedingly
low considering the presumed winnowing of trial witnesses and the very limited
number of depositions the plaintiff took during the discovery period. In any event,
taking depositions so close to trial is not unheard of. Cf. Local Rule 3.04(b).

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To allow meaningful discussion at the final pretrial conference of any need to
further winnow witness lists or of any need to conduct expedited discovery, the
parties must exchange the witness lists before the conference begins. *
Ordered in Jacksonville, Florida, on September 30, 2019.

c:

Counsel of record

*Citing

Rule 37(a)(5)(B), the defendants ask for expenses incurred in opposing the
motion, contending the motion is not substantially justified and is a “third attempt to
relitigate the appropriateness of Defendants’ amended disclosures.” Doc. 224 at 4.
Finding the plaintiff was substantially justified in bringing the motion and not trying to
relitigate previous rulings, requiring the plaintiff to pay expenses is unwarranted. See
Fed. R. Civ. P. 37(a)(5)(B) (court must not order payment of expenses if motion was
substantially justified).

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