Hansen et al v. Vista Outdoor Inc et al

Filing 62

ORDER granting 39 Motion to Compel; granting in part and denying in part 40 Motion to Compel; denying 42 Motion to Continue Trial; granting in part and denying in part 60 Motion for Extension of Time for Scheduling Order Deadlines. See te xt of Order. Defendants Expert Witnesses due by 2/13/2018. Plaintiffs Rebuttal Experts due by 3/13/2018. Discovery due by 4/2/2018. Motions due by 4/30/2018. Trial Ready Deadline 9/28/2018. Trial date 11/19/2018. Signed by Chief Magistrate Judge CJ Williams on 12/13/2017. (jjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

RONALD W. HANSEN,
No. 17-CV-3002-LTS
Plaintiff,
ORDER
vs.
SAVAGE ARMS CO.; and SAVAGE
ARMS INC.,
Defendants.
____________________
TABLE OF CONTENTS
I.

Background ...................................................................................... 3

II. Defendant’s Motion for Independent Medical Examination ............................. 3
A.

Applicable Law ............................................................................ 3

B.

Discussion .................................................................................. 4

III.

Plaintiff’s Motion to Compel Discovery ................................................. 8
A.

Meet-and-Confer ........................................................................ 8

B.

Discussion ................................................................................ 8

1. Objections .............................................................................. 11
2. Number of Interrogatories ........................................................... 12
3. Requests for Production .............................................................. 15
4. Rule 30(b)(6) Deposition ............................................................ 16
IV.

Motion for Extension of Time........................................................... 17
A.

Background.................................................................... .....17

B.

Discussion ...........................................................................18

V. Conclusion..................................................................................... 21

1

This matter is before the Court on four motions: 1) defendants’1 Motion to Require
Plaintiff to Submit to an Independent Medical Examination (Doc. 39); 2) plaintiff’s
Motion to Compel Discovery (Doc. 40); 3) plaintiff’s Motion to Continue Trial and
Modify Scheduling Order (Doc. 42); and 4) plaintiff’s Alternative Motion to
Modify/Extend Scheduling Order and Discovery Plan (Doc. 60).2 Plaintiff filed an
untimely resistance to defendants’ motion (Doc. 50). Defendants filed timely resistances
to both plaintiff’s motions (Docs. 47, 48), and plaintiff timely filed replies to both
resistances (Docs. 53, 54).

The Court held a hearing on the pending motions on

December 6, 2017.
For the following reasons, defendants’ Motion to Require Plaintiff to Submit to an
Independent Medical Examination (Doc. 39) is granted; plaintiff’s Motion to Compel
Discovery (Doc. 40) is denied in part and granted in part; plaintiff’s Motion to
Continue Trial and Modify Scheduling Order (Doc. 42) is denied; and plaintiff’s
Alternative Motion to Modify/Extend Scheduling Order and Discovery Plan (Doc. 60) is
granted in part and denied in part.

1

Savage Arms Co. has apparently been dissolved and no longer exists. (Doc. 9, at 1 n. 1
“Savage Arms Co. is a dissolved Delaware Corporation and is not a viable legal entity.”).
However, Savage Arms Co. has not been dismissed from the instant case. Thus, the Court will
refer to both Savage Arms Co. and Savage Arms Inc. as the defendants in this matter.
2

Defendants did not file a resistance to plaintiff’s alternative motion (Doc. 60), filed the day
before the hearing. Given the circumstances in this case, as well as defendants’ limited
reservations expressed at the hearing, the Court will rule without waiting for a written resistance.
See LR 7(e) (“If a motion appears to be noncontroversial, or if circumstances otherwise warrant,
the [C]ourt may elect to rule on a motion without waiting for a resistance or response.”).

2

I.

BACKGROUND

Plaintiff filed this case in the Iowa District Court for Franklin County (Doc. 8)
and defendants subsequently removed this case to this Court based on diversity
jurisdiction (Doc. 2). This Court has diversity jurisdiction.
Plaintiff alleges that while firing a muzzleloader rifle manufactured by Savage
Arms, the muzzleloader exploded, causing plaintiff to suffer severe permanent injury to
both his right hand and ear.

(Doc. 40-1, at 1).

Specifically, plaintiff claims

approximately 80% loss of hearing in his right ear as a result of the explosion. (Id.).
Prior to the explosion, plaintiff had never undergone an audiogram to objectively test his
hearing; however, plaintiff believes that his hearing was unimpaired prior to the
explosion. (Doc. 50-1, at 2).
On November 7, 2017, defendants filed their motion to compel plaintiff to submit
to an independent medical examination (“IME”) by Dr. Richard S. Tyler, an
otolaryngologist, arguing that without the examination, Dr. Tyler “would be subject to
cross-examination based on speculation and lack of foundation.” (Doc. 39-1, at 2-4).
Further, defendants argue that the IME is necessary to ascertain “the extent of [p]laintiff’s
hearing loss and whether the hearing loss was caused by the subject incident,” and
whether plaintiff would require surgery. (Id., at 4). In turn, plaintiff filed his motion to
compel discovery and his motion to continue the trial date and modify the scheduling
order.
II. DEFENDANTS’ MOTION FOR INDEPENDENT MEDICAL
EXAMINATION
A.

Applicable Law

Federal Rule of Civil Procedure 35(a)(1) provides that a court “may order a party
whose . . . physical condition . . . is in controversy to submit to a physical . . .
examination by a suitably licensed or certified examiner.” Such an order may only be

3

entered upon a showing of good cause and “must specify the time, place, manner,
conditions, and scope of the examination, as well as the person or persons who will
perform it.”

FED. R. CIV. P. 35(a)(2).

The “good cause” and “in controversy”

“requirement[s are] not . . . mere formalit[ies], but . . . plainly expressed limitation[s]
on the use of that Rule.” Schlagenhauf v. Holder, 379 U.S. 104, at 118 (1964).
[These requirements] are not met by mere conclusory allegations of the
pleadings—nor by mere relevancy to the case—but require an affirmative
showing by the movant that each condition as to which the examination is
sought is really and genuinely in controversy and that good cause exists for
ordering each particular examination. . . . The ability of the movant to
obtain the desired information by other means is also relevant.
Rule 35, therefore, requires discriminating application by the trial
judge, who must decide, as an initial matter in every case, whether the party
requesting a . . . physical examination . . . has adequately demonstrated the
existence of the Rule’s requirements of ‘in controversy’ and ‘good cause,’
which . . . are necessarily related.
(Id., at 118-19). Further, the party requesting the examination must provide, upon
request, “a copy of the examiner’s report,” which must be in writing and must
“set out in detail the examiner’s findings, including diagnoses, conclusions, and
the results of any tests.” FED. R. CIV. P. 35(b). “‘While Rule 35 should be
construed liberally in favor of granting discovery, its application is left to the sound
discretion of the court.’” O’Sullivan v. Rivera, 229 F.R.D. 184, 185 (D.N.M.
2004) (quoting Simpson v. Univ. of Colo., 220 F.R.D. 354, 362 (D. Colo. 2004)).
B.

Discussion

Defendants limit their request for an IME to an examination with respect to
plaintiff’s hearing loss and explicitly do not seek an IME with respect to his hand injury.
(Doc. 39-1, at 3). Plaintiff alleges that neither the “in controversy” requirement nor the

4

“good cause” requirement has been satisfied in the instant case. 3 The Court disagrees
and finds defendants have satisfied both requirements.
Plaintiff contends defendants have not shown that his hearing is in controversy
primarily because there is no evidence indicating hearing loss prior to the explosion,
plaintiff did report hearing loss within a short timeframe following the explosion, and
there is evidence that defendant suffered a punctured ear drum. (Doc. 50-1). Plaintiff
further argues that Dr. Tyler has already rendered an opinion and any examination at this
time would suffer from faulty methodology and be inadmissible under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999). As such, plaintiff argues that the evidence does not show that
plaintiff’s hearing loss or the cause of plaintiff’s hearing loss is truly in controversy.
Plaintiff first put the issue of his hearing loss into controversy by bringing a claim
relating to such. Further, Dr. Tyler concluded that the statement that plaintiff “lost 80%
of his hearing in his right ear” is simply untrue due to a lack of medical evidence in
support of this statement. (Doc. 50-2, at 2). Thus, whether plaintiff actually suffers
from hearing loss is genuinely in controversy. Dr. Tyler further opined that plaintiff’s
hearing loss “could have resulted from the accident.” (Id., at 4). Implicit in this
statement is the possibility that plaintiff’s hearing loss could have resulted from something
other than the explosion. Thus, the cause of plaintiff’s hearing loss is likewise in
controversy.
The Court also finds that defendants have demonstrated good cause. Absent the
IME, defendants’ expert, Dr. Tyler, would be limited to basing his conclusions on the
information provided by plaintiff’s other medical providers and expert witnesses.

3

Plaintiff’s resistance was not timely filed in accordance with Local Rule 7(e), and the Court
could grant defendants’ motion on that ground alone. Nevertheless, the Court has considered
plaintiff’s resistance and has decided this issue on the merits.

5

Plaintiff could justifiably attack Dr. Tyler’s conclusions for the very reason that Dr. Tyler
had not examined plaintiff. This could disadvantage defendants in defending against
plaintiff’s claim because plaintiff’s experts, naturally, would be expected to testify that
the explosion was the cause of plaintiff’s hearing loss. Absent an independent opportunity
to verify the accuracy of these claims, defendants would be unable to present an expert
who could provide a first-hand account of plaintiff’s condition and the causes of that
condition.

See O’Sullivan, 229 F.R.D. at 186-87 (“The Court should afford the

Defendants and their expert an opportunity to determine for themselves to what extent,
if any, this accident aggravated [plaintiff’s] pre-existing injuries and have the opportunity
‘to rebut the reports of the plaintiff’s expert.’” (quoting Simpson, 220 F.R.D. at 362)).
Therefore, defendants have demonstrated that good cause exists to order an IME.
Having found that defendants satisfied both the “in controversy” and “good cause”
requirements of Rule 35, the Court may properly order an IME. The Court is required
to “specify the time, place, manner, conditions and scope of the examination.” FED. R.
CIV. P. 35(a)(2)(B). The examination is to take place at Wolfe Audiology, 516 S.
Division Street, Suite 120, Cedar Falls, IA 50613, on January 16, 2018, at 10:30 a.m.
The examination will consist of a physical examination of plaintiff’s ears, testing of
plaintiff’s hearing, and those questions Dr. Tyler deems necessary to ascertain the extent
and cause of plaintiff’s hearing loss and associated symptoms. Dr. Tyler may employ
those methods he deems medically necessary to conduct the examination. Defendants are
not required to produce a list of questions Dr. Tyler anticipates asking plaintiff prior to
the examination. To submit such a list for pre-approval, as plaintiff requests, would limit
Dr. Tyler’s ability to ask any follow-up questions that may be helpful and that may not
be capable of anticipation prior to the examination. See Roman v. II Morrow, Inc., 173
F.R.D. 271, 273 (D. Or. 1997) (“All of the questions that a medical doctor needs to ask,
in particular the follow-up questions, cannot be determined in advance of the medical

6

examination.”). Defendants shall bear the costs of the examination. Plaintiff’s request
that defendants pay plaintiff’s travel expenses to and from the exam, as well as lost wages,
is denied. Plaintiff’s request that the examination be recorded is further denied. To the
extent plaintiff questions the validity of the examination, plaintiff may raise such issues
on cross-examination. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993)
(“Vigorous cross-examination, presentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” (citations omitted)).
Plaintiff’s final concern with respect to the examination is the potential waiver of
plaintiff’s attorney-client privilege. Specifically, plaintiff states that “defendants (who
are precluded from directly speaking with [plaintiff] without the presence of his attorneys)
want their retained expert, Dr. Tyler, to be able to interview the plaintiff about his
damage claim arising out of his hearing loss, out of the presence of his attorneys.” (Doc.
50-1, at 5). Dr. Tyler’s examination is limited to the medical facts at issue. There is no
reason to believe Dr. Tyler would ask any questions of plaintiff about communication he
has had with his attorneys. Plaintiff has failed to articulate any other means by which
defendants may seek to obtain protected information by way of the examination, and the
Court is not convinced that such means exist. However, should potentially privileged
information be revealed during the examination, plaintiff may petition the Court to
prevent the use of that information, as plaintiff sees fit. Further, counsel for either or
both parties may be present at the examination, but only as observers. Counsel are
prohibited from interfering with the examination.
Dr. Tyler has provided a report dated November 14, 2017. (Docs. 50-2, at 2).
The deadline for defendants to make their expert witness disclosures was November 15,
2017. (Doc. 36). The Court notes that defendants filed the motion to compel, which
presumably would lead to the need for Dr. Tyler to supplement his report, without also

7

filing a motion to extend the deadline for defendants’ expert witness disclosures.
However, given that plaintiff filed a motion to extend expert witness deadlines—including
defendants’ expert witness deadlines—the Court will extend the deadline for defendants’
expert witness disclosures as discussed infra to allow defendants to supplement Dr.
Tyler’s report following the IME.
III.
A.

PLAINTIFF’S MOTION TO COMPEL DISCOVERY

Meet-and-Confer

A party moving to compel discovery “must include a certification that the movant
has in good faith conferred or attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court action.” FED. R. CIV. P.
37(a)(1); see also LR 37(a). Alternatively, counsel may certify in a written declaration
that such a personal conference was impossible “and describe the efforts undertaken to
schedule the conference. An exchange of written communications or a single telephone
message will not, by itself, satisfy the requirements of this [rule].” LR 37(a). The
importance of the meet-and-confer requirement is not to be diminished. See Williams v.
Cent. Transp. Int’l., Inc., No. 4:13-CV-2009 (CEJ), 2014 WL 6463306, at *2 (E.D.
Mo. Nov. 17, 2014) (“The meet-and-confer requirement is ‘not an empty formality.’”).
Plaintiff’s counsel has certified that he “made a good faith but unsuccessful attempt
to resolve the discovery issues raised [in plaintiff’s motion to compel] without the
intervention of the Court.” (Doc. 40, at 2). Thus, the meet-and-confer requirement has
been satisfied.
B.

Discussion

Rule 26(b)(1) of the Federal Rules of Civil Procedure provides:
Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to

8

the needs of the case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
FED. R. CIV. P. 26(b)(1). Rule 26(b) is widely acknowledged as “liberal in scope and
interpretation, extending to those matters which are relevant and reasonably calculated to
lead to the discovery of admissible evidence.” Hofer v. Mack Trucks, Inc., 981 F.2d
377, 380 (8th Cir. 1992) (citation omitted). Additionally, in the context of discovery,
the standard of relevance is “broader” than in the context of admissibility. Id. (citing
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978)). Yet, “[s]ome threshold
showing of relevance must be made before parties are required to open wide the doors of
discovery and to produce a variety of information which does not reasonably bear upon
the issues in the case.” Id.
Rule 401 of the Federal Rules of Evidence reads: “[e]vidence is relevant if: (a) it
has any tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.” FED. R. EVID.
401. A discovery request “should be considered relevant if there is any possibility that
the information sought may be relevant to the claim or defense of any party.” Catipovic
v. Turley, No. C11-3074, 2013 WL 1718061, at *2 (N.D. Iowa Apr. 19, 2013) (internal
quotation marks and citation omitted).
The party requesting discovery bears the burden of making a threshold showing
that the requested discovery would be relevant; once this threshold has been met, the
burden of proving irrelevance shifts to the party resisting the motion to compel. Hofer,
981 F.2d at 380 (holding that the proponent of discovery bears the initial burden of
establishing relevance); Cont’l Ill. Nat’l Bank & Trust Co. of Chi. v. Caton, 136 F.R.D.

9

682, 684-85 (D. Kan. 1991) (“All discovery requests are a burden on the party who must
respond thereto.

Unless the task of producing or answering is unusual, undue or

extraordinary, the general rule requires the entity answering or producing the documents
to bear that burden.” (internal citation omitted)).
A party objecting to discovery must state its objections with particularity and may
not merely base its objections on allegations that the requested discovery is “overly broad,
burdensome, oppressive and irrelevant.” St. Paul Reinsurance Co. v. Commercial Fin.
Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000) (internal quotation marks and citations
omitted). Instead, the objecting party must prove that the “requested documents either
do not come within the broad scope of relevance defined pursuant to FED. R. CIV. P.
26(b)(1) or else are of such marginal relevance that the potential harm occasioned by
discovery would outweigh the ordinary presumption in favor of broad disclosure.” (Id.
(internal quotation marks and citation omitted)). When a discovery request is overbroad,
it may be considered disproportionate to the needs of the case.

Nachurs v. Alpine

Solutions, Corp. v. Nutra-Flo Co., No. 15-CV-4015-LTS, 2017 WL 1380460, at *4
(N.D. Iowa Apr. 17, 2017); see generally Maxtena v. Marks, 289 F.R.D. 427, 434 (D.
Md. 2012) (reading the proportionality requirement to limit, inter alia, duplicative and
overly burdensome discovery).
Plaintiff propounded both interrogatories and requests for production on
defendants; defendants responded to each in some fashion, and plaintiff now disputes
certain aspects of defendants’ responses and objections to the discovery. Plaintiff has
failed to articulate exactly why he disputes defendants’ responses and objections,
however, plaintiff has argued that many of defendants’ objections were improperly
generalized and non-specific and should therefore be stricken. Plaintiff further requests
that the Court compel defendants “to serve complete, responsive, and unambiguous
supplemental answers to plaintiff’s interrogatories” 3, 7, 10-15, 19, 23, 24, and 26, and

10

“to serve complete, responsive, unambiguous responses to the requests [to produce] and
to produce, without further delay, . . . any additional materials and information
responsive to [p]laintiff[’]s RFP [1-27].” (Doc. 40, at 1-2).
1.

Objections

The Court found two categories of objections within defendants’ responses to
plaintiff’s discovery requests. First, defendants lodged objections to many definitions
proposed by plaintiff in his discovery requests and, consequently, defendants proposed
their own definitions to those defendants deemed objectionable. (Doc. 40-6, at 1-4).
Second, defendants objected to numerous interrogatories individually, providing more
narrow objections to each of those interrogatories. (See Doc. 40-6). These included
objections to interrogatories seven through twenty-seven on the basis that those
interrogatories exceeded the number allowable under Federal Rule of Civil Procedure
33(a)(1).
The Court will first turn to defendants’ objections to eight definitions set forth by
plaintiff in both plaintiff’s interrogatories and requests for production. In responding to
discovery, parties should use “reason and common sense to attribute ordinary definitions
to terms and phrases” and “may include any necessary, reasonable definition of such
terms or phrases” to clarify their answers. Pulsecard, Inc. v. Discover Card Srvcs., 168
F.R.D. 295, 310 (D. Kan. 1996); see also McCoo v. Denny’s Inc., 193 F.R.D. 675, 694
(D. Kan. 2000). Defendants provided such clarifying definitions. In reviewing the
alternative definitions defendants provided, the Court finds them unobjectionable.
Plaintiff has not explained why the Court should overrule defendants’ objections
either with respect to the definitions or the alternative definitions defendants imposed,
other than to make the conclusory assertion that the definitions are an attempt by
defendants to obfuscate and obstruct discovery. An assertion that defendants “simply
‘defined’ [their] way out of producing interrogatory answers and hundreds of records of

11

gun barrel failures” is not legal analysis. Nor does plaintiff identify how the definitions
set forth by defendants allowed defendants to “define” their way out of anything. Plaintiff
has failed to present the Court with any basis upon which to find defendants’ definitions
objectionable, and the Court is unable to find any such basis on its own. As such, the
Court declines to overrule the objections and alternative definitions set forth by
defendants in their First Supplemental Answers and Objections to Plaintiff’s First Set of
Interrogatories (Doc. 40-6).
Turning now to the more narrow objections offered in response to specific
interrogatories, the Court again finds plaintiff’s briefs to be of little assistance in
discerning why plaintiff finds defendants’ objections inadequate. To the best of the
Court’s understanding, plaintiff argues that defendants’ objections are non-specific
boilerplate objections.

However, plaintiff has again failed to point to any specific

objection or part of an objection that is supposedly boilerplate. The Court has reviewed
defendants’ objections and, contrary to plaintiff’s assertions, finds that the objections are
tailored to each enumerated interrogatory. Further, even where defendants objected to
certain interrogatories, defendants still responded to many of those interrogatories, at
least in part. (See, e.g., Doc. 40-6, at 31-32). Were defendants willing to withdraw
their objections, plaintiff would, apparently, be willing to accept some of those responses
as complete. (Doc. 40-15, at 17-25). As such, the Court declines to find that defendants’
objections are boilerplate objections, as plaintiff asserts. Plaintiff’s motion to strike
defendants’ objections to plaintiff’s requests for production and interrogatories is denied.
2.

Number of Interrogatories

The final issue of defendants’ objections concerns defendants’ objections based on
the number of interrogatories propounded. Federal Rule of Civil Procedure 33(a)(1)
provides that a party may propound “no more than 25 written interrogatories, including
all discrete subparts.” Where a single interrogatory contains numerous questions, the

12

single enumerated interrogatory and each of its subparts are to be counted as separate
interrogatories. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1357 (11th Cir.
1997). Whether a subpart is “discrete” however, can be difficult to determine. For
purposes of this determination, the Court will rely upon the test set forth by the District
of Nevada: “Probably the best test of whether subsequent questions, within a single
interrogatory, are subsumed and related, is to examine whether the first question is
primary and subsequent questions are secondary to the primary question. Or, can the
subsequent question stand alone?” Kendall v. GES Exposition Servs., Inc., 174 F.R.D.
684, 685 (D. Nev. 1997); see also Precision of New Hampton, Inc. v. TriComponent
Prods. Corp., No. CV12-2020, 2012 WL 6520139, at *2 (N.D. Iowa Dec. 13, 2012)
(relying on the Kendall test in determining whether subparts to enumerated interrogatories
should be considered “discrete subparts” that each qualify as an additional interrogatory).
Defendants contend only that Interrogatory Number Three contains discrete
subparts.

(Doc. 47, at 17).

Although other enumerated interrogatories may have

subparts, defendants have not alleged that these subparts are discrete within the meaning
of Rule 33(a)(1). Thus, defendants have waived this defense with respect to all other
interrogatories.

See FED. R. CIV. P. 33(b)(4) (“The grounds for objecting to an

interrogatory must be stated with specificity. Any ground not stated in a timely objection
is waived unless the court, for good cause, excuses the failure.”). As such, the Court
need only consider whether Interrogatory Number Three’s subparts are discrete within
the meaning of Rule 33.
Each subpart to Interrogatory Number Three asks defendants to “[i]dentify with
specificity any and all facts or circumstances [defendants] allege or rely upon to support
the following affirmative defenses and specify for each fact or circumstance, what
evidence, or witnesses [defendants] expect to offer to prove each defense listed.” (Doc.
40-6, at 6). Plaintiff then lists twenty of defendant’s twenty-nine affirmative defenses

13

and seeks to have defendants provide the information set forth in Interrogatory Number
Three with respect to each of those twenty affirmative defenses. (Doc. 40-6, at 6-7).
Defendants would have this Court hold that interrogatories requesting such information
with respect to multiple affirmative defenses would always constitute separate and
discrete interrogatories. (Doc. 47, at 17). The Court, however, is not convinced that
this must always be the case. Rather, the Court finds it possible that separate affirmative
defenses may lead to separate interrogatories when this sort of information is requested,
but this is not necessarily the case on all occasions. Therefore, the Court must consider
whether any or all of the twenty affirmative defenses may be considered as one
interrogatory, or whether each listed affirmative defense is truly a “discrete subpart.”
Of the twenty affirmative defenses that were the subject of Interrogatory Number
Three, the Court finds that each can be considered a stand-alone question. Plaintiff
requests that defendants provide factual information, evidentiary information, and
witnesses with respect to each itemized affirmative defense. Although the Court finds it
unnecessary to explicitly discuss how each of these twenty affirmative defenses may be
differentiated from one another here, the Court is satisfied that each of those affirmative
defenses rests on a different legal theory with different informational and evidentiary
bases. This may not always be the case and, indeed, certain affirmative defenses in this
case may find some overlap in their legal, factual, or evidentiary backgrounds. However,
the Court is concerned only with the twenty affirmative defenses enumerated in
Interrogatory Number Three.

Because the nature of the information requested is

necessarily different with request to each of the twenty affirmative defenses, the Court
finds that each subsection of Interrogatory Number Three may be considered a separate
question.

See Nguyen v. Lowe’s Home Ctrs., LLC, 15CV1085 H NLS, 2015 WL

12672153, at *4 (S.D. Cal. Nov. 19, 2015) (“The Court reviewed Defendant’s
affirmative defenses in the Answer and finds that each defense may be factually and

14

logically different. Thus, contrary to Plaintiff’s contentions, this interrogatory cannot be
grouped into less than nine discrete subparts. . . . Moreover, many courts have concluded
an interrogatory that asks a party to identify facts, documents, and witnesses should count
these items as discrete separate interrogatories.” (citations omitted)).
Therefore, the Court finds that subparts one through twenty of Interrogatory
Number Three each constitute a separate interrogatory.

As such, plaintiff has

propounded forty-six interrogatories on defendants, twenty-one of which are in excess of
the twenty-five permitted interrogatories. FED. R. CIV. P. 33(a)(1). Plaintiff has not
sought leave for additional interrogatories.

The Court notes that defendants have

provided substantive responses to some of the interrogatories they contend are in excess
of the number permitted. However, the Court will not compel defendants to provide any
further responses to Interrogatories Seven through Twenty-Seven, as these are in excess
of the twenty-five permitted interrogatories.4

Thus, plaintiff’s motion to compel

responses to interrogatories is denied.
3.

Requests for Production

Plaintiff has failed to clearly articulate the materials plaintiff seeks to have the
Court compel defendants to produce, nor has plaintiff presented the Court with any reason
to believe any other requested materials that have gone unproduced are even in existence.
However, to the best of the Court’s understanding, plaintiff seeks to compel a declaration
from defendants that they have made a diligent and good faith search for the materials
requested. In the event that defendants have not made such a search and thus cannot
provide the requested declaration, plaintiff then requests that the Court order production
of all materials requested in Requests to Produce Numbers One through Twenty-Seven.
4

The Court also notes that even if it had not concluded that each of Interrogatory Number Three’s
subparts is “discrete,” Interrogatories Twenty-Six and Twenty-Seven would still have been in
excess of the twenty-five permitted.

15

“In responding to [Rule 34] discovery requests, a reasonable inquiry must be
made, and if no responsive documents or tangible things exist, FED. R. CIV. P. 26(g)(1),
the responding party should so state with sufficient specificity to allow the Court to
determine whether the party made a reasonable inquiry and exercised due diligence.”
Heller v. City of Dallas, 303 F.R.D. 466, 485 (N.D. Tex. 2014) (quoting Atcherley v.
Clark, No. 1:12cv00225 LJO DLB (PC), 2014 WL 4660842, at *1 (E.D. Cal. Sept. 17,
2014)). Here, defendants have not stated that they undertook a diligent and good faith
effort to locate documents responsive to the above requests and that they have produced
all responsive documents. At argument on the motion, defendants certainly implied that
they had done so.

Defendants’ production of voluminous materials in response to

plaintiff’s requests also suggests defendants have conducted a diligent and good faith
attempt to produce all non-privileged materials requested. Nevertheless, the Court will
order defendants to supplement their discovery responses to explicitly state that they have
diligently and in good faith searched for responsive documents and have produced all
responsive documents they located. See Lewton v. Divingnzzo, No. 8:09CV2, 2010 WL
1630719, at *5 (D. Neb. Apr. 21, 2010) (directing party to serve amended responses
“indicating (a) whether responsive documents do or do not exist and (b) whether all
responsive documents have been produced after a diligent and good faith effort to locate
and identify responsive materials.”). The Court will accept defendants’ declaration as
true. Accordingly, the Court grants in part and denies in part plaintiff’s motion to
compel responses to plaintiff’s requests to produce documents.
4.

Rule 30(b)(6) Deposition

Plaintiff served a notice of Rule 30(b)(6) deposition on defendants. (Doc. 40-1, at
9).

In response, defendants proposed that plaintiff depose two different corporate

representatives in two different cities on two different days to fulfill the Rule 30(b)(6)
requirements. See FED. R. CIV. P. 30(b)(6) (“The [organization being deposed] must . . .

16

designate one or more officers, directors, or managing agents, or designate other persons
who consent to testify on its behalf; and [the organization] may set out the matters on which
each person designated will testify.”). Plaintiff objects to this suggestion and, to the extent
the Court can ascertain, is willing to depose two different representatives but is unwilling
to travel to two different cities to do so. As such, plaintiff requests that the Court compel
defendants “to promptly respond to any future Amended Notice of 30(b)(6) Corporate
Deposition Notices, by promptly identifying the designated witnesses, and to provide the
30(b)(6) witness or witnesses in one location, on consecutive days, to avoid unnecessary
expense and delay.” (Doc. 40, at 2). The Court cannot compel defendants to comply with
a notice that has yet to be served or even necessitated. Therefore, plaintiff’s request with
respect to a future Rule 30(b)(6) notice is denied as unripe. Because plaintiff has limited
his request to concern only future notices, the Court will not rule on any existing notice.
In summary, the Court grants in part and denies in part plaintiff’s Motion to
Compel Discovery (Doc. 40) as stated above.
IV.
A.

MOTION FOR EXTENSION OF TIME

Background

The final two motions the Court must confront are plaintiff’s Motion to Continue
Trial and Modify Scheduling Order (“motion to continue”) (Doc. 42), and plaintiff’s
subsequent Alternative Motion to Modify/Extend Scheduling Order and Discovery Plan
(“motion to modify scheduling order”) (Doc. 60).
On November 8, 2017, plaintiff filed his motion to continue, alleging that the
volume of discovery in this case would take longer to review than plaintiff would have
under the current scheduling order, that defendants’ failure to timely produce discovery
materials hindered plaintiff’s litigation, and that plaintiff would need additional time to
review any materials produced pursuant to plaintiff’s motion to compel. (Doc. 42).
Therefore, plaintiff requested that a continuance be granted and the scheduling order be

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modified accordingly. (Id.). On November 22, 2017, defendants filed their resistance
to plaintiff’s motion to continue, essentially arguing that defendants produced discovery
materials in a timely fashion and that if any materials were not produced pursuant to
plaintiff’s first requests to produce, they were not produced simply because they were
not requested. (Doc. 48). Thus, defendants argue, any delay plaintiff experienced in
receiving these materials was due to plaintiff’s failure to request those materials. (Id.).
As a result, defendants argue, no continuance should be granted to review these materials.
(Id.). However, defendants expressed that they had no objection to granting extensions
to deadlines that had not passed as of November 22, 2017, as long as those modified
deadlines complied with the local rules. (Id., at 9). Plaintiff filed a reply reiterating
plaintiff’s initial position. (Doc. 54).
On December 5, 2017, plaintiff filed his motion to modify the scheduling order.
(Doc. 60).5

During the December 6, 2017 hearing, defense counsel indicated that

defendants had no objection to modifying the scheduling order so long as only future
deadlines were affected, and the dispositive motions deadline and trial date remained
firm.
B.

Discussion

Federal Rule of Civil Procedure 16 requires the Court to issue a scheduling order
that includes certain deadlines, including the deadlines for completing discovery. The
Rule 16 scheduling order may be modified only for good cause.

FED. R. CIV. P.

Local Rule 7(k) requires that “[a]ll non-dispositive motions must contain a representation that
counsel for the moving party personally conferred in good faith with counsel for all other parties
. . . concerning the motion, and a statement of whether or not the other parties consent to the
motion.” Plaintiff’s motion did not comply with this rule. Instead, plaintiff stated “Defendants
are on the record as being unopposed to the modification of [the requested] deadlines.” (Doc.
60, at 2). Although defendants were unopposed to some proposed amendment of deadlines as
of November 22, 2017, plaintiff’s motion to modify the scheduling order was filed nearly two
weeks after defendants indicated assent.
5

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16(b)(4); Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008). A party
moving to modify a scheduling order bears the burden of showing “diligence in
attempting to meet the order’s requirement.” Rahn v. Hawkins, 464 F.3d 813, 822 (8th
Cir. 2006).

See also FED. R. CIV. P. 16(b)(4); Local Rule 16(f) (“The deadlines

established by the Rule 16(b) and 26(f) scheduling order and discovery plan will be
extended only upon written motion and a showing of good cause.”). “The primary
measure of good cause is the movant’s diligence in attempting to meet the order’s
requirements.” Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006).
The Court finds that plaintiff has not shown good cause to continue the trial. Given
the Court’s heavy docket and need “to secure the just, speedy, and inexpensive
determination of every action and proceeding,” the good cause standard with respect to
motions to continue is particularly difficult to meet. FED. R. CIV. P. 1. Plaintiff has
failed to meet the standard here. Plaintiff has, however demonstrated that good cause
exists to modify the scheduling order. The following deadlines shall now govern this
matter:
Defendants’ Expert Witnesses:6
Plaintiff’s Rebuttal Experts:
Completion of Discovery:
Dispositive Motions:
Trial Ready:
Trial:

February 13, 2018
March 13, 2018
April 2, 2018
April 30, 2018
September 28, 2018
November 19, 2018

6

Although this deadline was not a “future” deadline as contemplated in defendants’ resistance
to plaintiff’s motion to continue (Doc. 48), the Court finds that extending the deadline for
defendants to disclose their expert witnesses would permit Dr. Tyler sufficient time to conduct
the IME, formulate opinions, and supplement his opinion. Plaintiff will not be prejudiced by
extending this deadline. Plaintiff initially proposed extending this deadline (Doc. 42, at 1) and
has yet to disclose his rebuttal witnesses. As such, the Court finds it appropriate to extend this
deadline.

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To be clear, the Court reiterates that the parties should consider the trial date firm. As
the dispositive motions deadline is tethered to the trial date, the parties should likewise
consider the dispositive motions deadline firm. See LR 16(g) (“The deadline . . . for
filing dispositive motions must be at least 150 days before the proposed ready-for-trial
date.”).
Plaintiff has also requested that the Court extend the deadline for plaintiff to
disclose his expert witnesses. (Doc. 42, at 1). However, this request was made more
than three weeks after the deadline had passed. As a result, plaintiff bears the burden of
showing that his failure to move to extend this deadline prior to its expiration was due to
excusable neglect. FED. R. CIV. P. 6(b)(1)(b); Nelson v. Bitters, 2017 WL 360921, at
*4 (N.D. Iowa Jan. 24, 2017). When considering whether a party has demonstrated
excusable neglect, the Court must consider “all relevant circumstances surrounding the
party’s omission.” Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S.
380, 395 (1993). These circumstances are to include: 1) the danger of prejudice to the
non-moving party; 2) the length of delay and its potential impact on judicial proceedings;
3) the reason for the delay, including whether it was within the reasonable control of the
movant; and 4) whether the movant acted in good faith. Treasurer, Trs. of Drury Indus.,
Inc. Health Care Plan and Tr. v. Goding, 692 F.3d 888, 893 (8th Cir. 2012) (citations
omitted).
In his motion, plaintiff did not acknowledge that his motion was brought
subsequent to the expiration of plaintiff’s expert witness deadline. Plaintiff further failed
to offer any justification to establish excusable neglect for failing to comply with the
deadline or for failing to file the motion for an extension before the deadline expired.
Granting the motion at this late stage would have a significant effect on judicial
proceedings. Defendants have already disclosed their expert witnesses and plaintiff is

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now limited to disclosing only rebuttal experts.7 If plaintiff were now permitted to
disclose additional experts with the benefit of having defendants’ expert witness
disclosures, defendants would be prejudiced because this would permit plaintiff to
designate experts for his case-in-chief having already become privy to defendants’
theories. To the extent plaintiff wishes to rebut defendants’ experts’ opinions, he may
do so through his rebuttal experts. The Court therefore grants in part and denies in
part plaintiff’s Alternative Motion to Modify/Extend Scheduling Order and Discovery
Plan (Doc. 60) and denies plaintiff’s Motion to Continue Trial Date and to Modify
Scheduling Order (Doc. 42).
V.

CONCLUSION

For the reasons stated, the Court orders as follows: defendants’ Motion to Require
Plaintiff to Submit to an Independent Medical Examination (Doc. 39) is granted;
plaintiff’s Motion to Compel Discovery (Doc. 40) is denied in part and granted in part;
plaintiff’s Motion to Continue Trial and Modify Scheduling Order (Doc. 42) is denied;
and plaintiff’s Alternative Motion to Modify/Extend Scheduling Order and Discovery
Plan (Doc. 60) is granted in part and denied in part.
IT IS SO ORDERED this 13th day of December, 2017.

__________________________________
C.J. Williams
Chief United States Magistrate Judge
Northern District of Iowa

7

Although the Court has chosen to extend the deadline for defendants to disclose their expert
witnesses, this extension is of no consequence in considering whether to extend plaintiff’s expert
witness deadline.

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