Peeler v. KVH Industries, Inc.

Filing 98

ORDER denying 97 Plaintiff's Emergency Motion for Continuance of Trial and Reopening of Discovery for the Depositions of John Spaulding and Tom High. Signed by Judge Virginia M. Hernandez Covington on 1/17/2014. (CH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID PEELER,
Plaintiff,
v.

Case No. 8:12-cv-1584-T-33TGW

KVH INDUSTRIES, INC.,
Defendant.
_____________________________/
ORDER
This matter comes before the Court in consideration of
Plaintiff’s Emergency Motion for Continuance of Trial and
Reopening of Discovery for the Depositions of John Spaulding
and Tom High (Doc. # 97), filed on January 16, 2014.

Within

the Motion, Peeler explains that, “[i]n the case at hand,
leading up to the January 21, 2014 trial date, Senior Vice
President

of

Marketing

for

Stag-Parkway,

Inc.,

John

Spaulding, and Purchasing Manager for Camping World, Inc.,
Tom High, voluntarily agreed to testify in this action.” (Id.
at 2).

Peeler claims that the “testimony of these witnesses

is critical in exposing KVH’s material misrepresentation that
it received periodic sales reports from its customers . . .
.”

(Id.).

However,

Peeler

states

that

“just

days

before

the

January 21, 2014, trial was to begin, both witnesses contacted
[Peeler’s

counsel]

indicating

that

they

were

no

willing to testify following a conversation with KVH.
last-minute
communications

cancellations
with

KVH

following

are

completely

warrant continuing the trial . . . .”

longer
These

undisclosed

unacceptable

and

(Id.).

Importantly, in addition to the request to continue the
trial, Peeler’s Motion requests that the Court reopen the
discovery period so that Peeler may take the depositions of
John Spaulding and Tom High.

(Id. at 5).

first time Peeler has sought such relief.

This is not the
On December 5,

2013, Peeler filed a Motion for Permission to Allow Deposition
in Lieu of Live Testimony (Doc. # 69), in which Peeler argued
that exceptional circumstances existed to justify a trial
deposition in lieu of live testimony as to three witnesses,
including Spaulding and High.

Although all three witnesses

had submitted signed declarations in this matter, none of the
three had been deposed.

Peeler thus sought to conduct a

deposition of the relevant witnesses more than seven months
after the close of discovery and only one month before the
trial term in this case.

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The Court denied Peeler’s motion, explaining that such
a request would impose a substantial burden on the opposing
party.

The Court additionally noted that “this burden seems

particularly unnecessary in light of Peeler’s own decision
not to secure the deposition testimony of these witnesses
during the discovery period despite his awareness at that
time

of

the

testimony.’”

‘substantive

content

of

their

respective

(Doc. # 80 at 6).

In the present Motion, Peeler alerts the Court that these
voluntary witnesses are unwilling to testify at trial as
scheduled, and once more requests to reopen the discovery
period for the purpose of securing the witnesses’ deposition
testimony.

The Court declines to do so.

Delaying the trial

at this late juncture so that Peeler may conduct additional
discovery would be exceedingly burdensome to the Court as
well

as

Peeler’s

opposing

party

and

counsel.

Notably,

Peeler’s Motion offers no explanation for Peeler’s failure to
depose these witnesses before the close of discovery.
However, to the extent Peeler’s Motion implies that KVH
engaged in inappropriate conduct in “dissuading” the relevant
witnesses from testifying at trial, the Court takes this
accusation very seriously.

Thus, before the start of trial

on January 21, 2014, both parties will have an opportunity to

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state on the record their respective positions with regard to
this

alleged

inappropriate

conduct.

At

that

time,

if

additional information reveals that KVH indeed improperly
communicated with these witnesses, the Court will impose
appropriate sanctions.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff’s Emergency Motion for Continuance of Trial
and

Reopening

of

Discovery

for

the

Depositions

of

John

Spaulding and Tom High (Doc. # 97) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
17th day of January, 2014.

Copies: All Counsel of Record

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