United States of America et al v. Dish Network LLC

Filing 166

OPINION by U.S. Magistrate Judge Byron Cudmore: Defendant's Motion for Leave to Conduct Two Depositions After the Close of Discovery and To Compel Certain Discovery from Plaintiffs 159 ALLOWED in part and DENIED in part. See written order. (LB, ilcd)

E-FILED

Friday, 20 July, 2012 01:25:44 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION

UNITED STATES OF AMERICA,
and the STATES of CALIFORNIA,
ILLINOIS, NORTH CAROLINA,
and OHIO,
Plaintiffs,
v.
DISH NETWORK, L.L.C.,
Defendant.

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No. 09-cv-3073

OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Defendant Dish Network,
LLC’s (Dish) Motion for Leave to Conduct two Depositions after the Close
of Discovery and to Compel Certain Discovery from Plaintiffs (d/e 159)
(Motion). For the reasons set forth below, the Motion is ALLOWED in part
and DENIED in part.
Dish wishes to depose Plaintiffs’ witness and Federal Trade
Commission (FTC) employee Kathy French. The Plaintiffs have no
objection to Dish’s request to depose French after the close of fact
discovery. The Plaintiffs had agreed to French’s deposition, but the
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deposition has been delayed because French has been ill. This portion of
the Motion is ALLOWED.
Dish next moves to compel Plaintiff United States of America to
produce a witness to testify on the subject of caller identification spoofing.
On May 24, 2012, Dish served a notice on Defendants pursuant to Federal
Rule of Civil Procedure 30(b)(6) to provide a deponent for this purpose.
Dish had originally served a notice of deposition of Plaintiffs on May 4,
2012, to depose Jason Weinstein, United States Department of Justice
Deputy Assistant Attorney General for the Criminal Division, to testify
regarding identification spoofing. After discussions between counsel, Dish
substituted the Rule 30(b)(6) notice.
The United States now objects that Dish has not complied with the
requirements of 28 C.F.R. § 16.23(c). Section 16.23(c) states,
(c) If oral testimony is sought by a demand in a case or matter
in which the United States is a party, an affidavit, or, if that is
not feasible, a statement by the party seeking the testimony or
by the party's attorney setting forth a summary of the testimony
sought must be furnished to the Department attorney handling
the case or matter.
28 C.F.R. § 16.23(c). Dish did not provide the affidavit required by
§16.23(c) with either the May 4, 2012, notice to depose Deputy Assistant
Attorney General Weinstein or the May 24, 2012, Rule 30(b)(6) notice.

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The failure to comply with § 16.23(c) means that the Court cannot compel
the deposition. Dish complains that the Plaintiffs agreed to provide a
person for this deposition. There seems to be some indication that the
Plaintiffs changed positions during the parties’ discussions, but in light of
§16.23(c), the Court does not have the authority to compel the requested
deposition. This portion of the Motion is DENIED.
Last, Dish moves for permission to conduct a Rule 30(b)(6)
deposition of a representative of AT&T Government Solutions, Inc. (AT&T)
after the close of fact discovery. Dish served a subpoena on AT&T with the
Rule 30(b)(6) notice on April 30, 2012. AT&T acknowledged service on
May 10, 2012, but stated that it was having difficulty locating a person who
could act at the Rule 30(b)(6) representative who had knowledge of the
topic of the deposition. Motion, attached Declaration of Lauri Mazzuchetti,
¶ 10.
The parties agreed to extend the time to conduct several depositions,
including this one, until June 30, 2012, and the Court approved the
requested extension. Consent Motion for a Limited Extension of Discovery
(d/e 139); Text Order Entered May 23, 2012. On June 28, 2012, AT&T
notified Dish that the former AT&T employee who had initially agreed to be
the Rule 30(b)(6) witness changed her mind, and AT&T would need time to
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locate and designate another witness. Dish, therefore, asks for additional
time to complete this deposition after the June 30, 2012, deadline.
The Plaintiffs object on the grounds that Dish did not move diligently
to complete this discovery. A party must demonstrate good cause to
modify the scheduling order. Fed. R. Civ. P. 16(b)(4). To demonstrate
good cause, the party must demonstrate that it acted diligently. See
Anderson v. City of West Bend Police Dept., 774 F.Supp.2d 925, 934
(E.D. Wisc. 2011). The Court has reviewed the material submitted by the
parties and finds that Dish has diligently pursued this discovery and has
demonstrated good cause for the requested modification of the discovery
schedule. The Court, therefore, will give Dish additional time to complete
the deposition. This portion of the Motion is ALLOWED.
WHEREFORE This matter comes before the Court on Defendant
Dish Network, LLC’s (Dish) Motion for Leave to Conduct two Depositions
after the Close of Discovery and to Compel Certain Discovery from
Plaintiffs (d/e 159) is ALLOWED in part and DENIED in part. Defendant
Dish Network, LLC, is given leave to conduct the deposition of FTC
employee Kathy French when French is well enough to sit for the
deposition. Dish Network, LLC, is also given leave to conduct the pending
Rule 30(b)(6) deposition of the representative of AT&T Government
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Solutions, Inc., to be completed by September 28, 2012. The Motion is
otherwise denied.
ENTER:

July 20, 2012
s/ Byron G. Cudmore
BYRON G. CUDMORE
UNITED STATES MAGISTRATE JUDGE

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