Hall v. Life Care Centers of America, Inc. et al

Filing 114

MEMORANDUM AND ORDER denying 93 Motion to Take Deposition of In-House Counsel. Signed by Magistrate Judge Kenneth G. Gale on 7/11/18. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PAMELA HALL,

)
)
Plaintiff,
)
)
v.
)
)
LIFE CARE CENTERS OF
)
AMERICA, INC., et al.,
)
)
Defendants. )
_______________________________)

Case No.: 16-2729-JTM-KGG

MEMORANDUM & ORDER ON
MOTION TO TAKE DEPOSITION OF IN-HOUSE COUNSEL
Plaintiff Pamela Hall has filed a motion seeking leave to take the deposition
of Defendant LCCA’s in-house counsel Theodore Lu outside the discovery
deadline. (Doc. 93.) Having reviewed the submissions of the parties, Plaintiff’s
motion is DENIED.
BACKGROUND
Plaintiff Pamela Hall alleges violations of the Family Medical and Leave
Act, the Americans with Disabilities Act and the Age Discrimination in
Employment Act by Defendant LCCA and Defendant Yosick. (Doc. 1.) She
alleges she was subject to employment discrimination and retaliation in violation
of the Family Medical and Leave Act, the Americans with Disabilities Act, and the

Age Discrimination in Employment Act. (Doc. 1.) She contends she was forced to
terminate her employment, while Defendants contend she did so voluntarily.
The discovery deadline in this case was March 2, 2018. (Doc. 51, at 2.)
Plaintiff contends that she did not learn about Mr. Lu’s involvement in Plaintiff’s
termination until approximately a week before the discovery cutoff, making it
impossible for her to meet the deadline. (Doc. 93, at 1.)
ANALYSIS
Plaintiff brings the present motion pursuant to Fed.R.Civ.P. 6(b)(1)(B),
which allows a party to perform an act after the expiration of the relevant deadline
upon a showing of “excusable neglect.” Defendants argue that Plaintiff’s reliance
on Rule 6 is incorrect; rather, Plaintiff must meet the standards of Fed.R.Civ.P.
16(b)(4), which governs modifications of the Scheduling Order and mandates that
“[a] schedule may be modified only for good cause and with the judge’s consent.”
To establish ‘good cause’ the moving party must show
that the scheduling order's deadline could not have been
met with diligence. Parker v. Central Kansas Medical
Center, 178 F.Supp.2d 1205, 1210 (D.Kan.2001);
Denmon v. Runyon, 151 F.R.D. 404, 407 (D.Kan.1993).
‘This rule gives trial courts ‘wide latitude in entering
scheduling orders,’ and modifications to such orders are
reviewed for abuse of discretion.’ In re Daviscourt, 353
B.R. 674, (B.A.P. 10th Cir.2006) (citing Burks v. Okla.
Publ’g Co., 81 F.3d 975, 978-79 (10th Cir.1996)).
Grieg v. Botros, No. 08-1181-EFM-KGG, 2010 WL 3270102, at *3 (D.Kan. Aug.
12, 2010). It is well-established in this District that motions to modify a

scheduling order focus “on the diligence of the party seeking to modify the
scheduling order.” Id. (citing Leviton Mfg. Co., Inc. v. Nicor, Inc., 245 F.R.D.
524, 528 (D.N.M.2007) (internal citations omitted)). Defendant contends that
“Plaintiff does not even cite, much less address, the standard governing a motion
for leave to take a deposition after the close of discovery.” (Doc. 95, at 2.) As
such, Defendant contends that Plaintiff’s motion must be denied on the merits.
Although Plaintiff has not cited Rule 16 and does not discuss the concept of
“good cause,” she does explain why she did not attempt to depose Mr. Lu within
the discovery deadline.
Plaintiff learned about Mr. Lu’s involvement in
Plaintiff’s termination during the deposition of Jamie
Corridini [sic], roughly a week before the discovery
deadline. During the deposition of Defendant Yosick,
taken on February 27, 2018, defense counsel first
produced a letter sent to Plaintiff, that was directed by
Mr. Lu, which letter was said by Corridini to be part of
Plaintiff’s personnel file, but Defendants didn’t produce
it as part of her file.
(Doc. 93, at 1-2.)
Defendants contend that this “claim is not credible,” pointing to certain other
correspondence between Plaintiff’s counsel and Mr. Lu from March and April
2016. (Id.) According to Defendants, the testimony of Corradini and Yosick in
February 2018 “that they sought and received legal advice from Mr. Lu regarding
Plaintiff . . . revealed nothing new.” (Id.) Defendants point to the inconsistency of

Plaintiff arguing on one hand that she “‘could not have reasonably met the
scheduled deadline’” of March 2018 to depose Mr. Lu with due diligence when on
the other hand her counsel was aware of Lu’s role in this litigation approximately
two years before the discovery deadline. (Id.) Defendant further argues that “[i]t
is neither shocking nor revelatory that [Defendant LCCA] managers sought legal
advice from . . . in-house counsel about [an LCCA] employee.” (Id.)
The Court finds that Plaintiff has not established good cause to modify the
Scheduling Order to depose Theodore Lu out of time. Her motion (Doc. 93) is
DENIED on this basis.1

IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to Take
Deposition (Doc. 93) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 11th day of July, 2018.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

assuming Plaintiff was able to establish good cause to depose Mr. Lu out of time,
the Court has significant concerns that she would be able to meet the criteria to depose
counsel for an opposing party – that (1) no other means exist to obtain the information
except to depose opposing counsel; (2) the information sought is relevant and
nonprivileged; and (3) the information is crucial to the preparation of the case. Simmons
Foods, Inc. v. Willis, 191 F.R.D. 625, 630 (D. Kan. 2000). See also Doc. 95, at 6-9.  
1

  Even