Greer v. City of Wichita, Kansas et al
ORDER granting 123 motion to reopen discovery and overruling 120 objections to the issuance of subpoenas. Signed by Magistrate Judge James P. O'Hara on 7/21/2017. (amh)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 16-1185-EFM
CITY OF WICHITA, KANSAS, et al.,
This is an employment case in which plaintiff, a security guard at the Wichita Art
Museum (“WAM”), alleges defendants violated her rights under the Uniformed Services
Employment and Reemployment Rights Act (“USERRA”) by failing to promote her to
the position of Museum Operations Supervisor because of her membership, performance
of service, and obligations as a member of the U.S. Navy Reserves. Defendant City of
Wichita, Kansas (“the City”) has filed a motion to reopen discovery for the limited
purpose of issuing business-records subpoenas to plaintiff’s past employers and
educational institutions (ECF No. 123). Because the court finds good cause to modify the
scheduling order to permit the limited additional discovery, the City’s motion is granted.
Under the scheduling order, discovery in this case closed on June 9, 2017.1
Defendants deposed plaintiff over the course of two days, on May 30, 2017, and June 1,
ECF No. 59.
2017. During the first day of her deposition, plaintiff testified about unusual events that
she witnessed at two former employers–one involving the illegal sale of drugs on
multiple occasions, and the other involving homosexual activity between executives and
payment made to plaintiff to not report to work. Plaintiff also testified that she attended
seven institutions for post-secondary education, more than she had noted on her job
application with WAM. On the second day of her deposition, the City asked plaintiff to
sign release forms that would permit the City to obtain her education and employmenthistory records. Plaintiff’s counsel objected to the request as untimely, even though it
was made before the discovery cut-off, because it was not made thirty days before the
discovery cut-off. Given that plaintiff has refused to voluntarily sign a release for the
information, the City seeks to issue business-record subpoenas to plaintiff’s past
employers and post-secondary educational institutions under Fed. R. Civ. P. 45.
Plaintiff argues that any such subpoenas fall outside the discovery deadline. The
City does not dispute that Rule 45 subpoenas constitute discovery and are subject to the
court’s discovery deadlines.2 Instead, the City moves the court to modify the scheduling
order to permit the limited additional discovery sought by the subpoenas.
A scheduling order may be modified only for good cause and with the court’s
consent.3 “Whether to extend or reopen discovery is committed to the sound discretion
See Hollis v. Aerotek, Inc., No. 14-2494, 2015 WL 6442582, *3 (D. Kan. Oct. 23, 2015).
Fed. R. Civ. P. 16(b)(4).
of the trial court and its decision will not be overturned on appeal absent abuse of that
discretion.”4 In deciding whether to reopen discovery, relevant factors include:
1) whether trial is imminent, 2) whether the request is opposed, 3) whether the
non-moving party would be prejudiced, 4) whether the moving party was diligent
in obtaining discovery within the guidelines established by the court, 5) the
foreseeability of the need for additional discovery in light of the time allowed for
discovery by the district court, and 6) the likelihood that the discovery will lead to
After considering these factors, the court finds that limited discovery should be reopened.
Plaintiff opposes the motion, but otherwise the factors weigh in favor of the City’s request to
First, trial is not imminent; it is not set to begin for more than eight months. Second,
plaintiff has not suggested she would be prejudiced in any way by reopening discovery. Third,
the City was diligent in obtaining discovery within the guidelines established by the court, and
scheduled plaintiff’s deposition within the discovery period. The importance of plaintiff’s past
employment and education records did not become apparent until plaintiff testified at her
deposition about the facts discussed above. Finally, the City has sufficiently demonstrated the
records sought are likely to lead to relevant evidence. The records could bear on whether
plaintiff was qualified for the Museum Operations Supervisor position and on whether her
submitted application was accurate. They could also bear on the truth and veracity of plaintiff’s
potential trial testimony, as they may support–or not support–the testimony given by plaintiff in
Therefore, the court finds good cause to modify the scheduling order to reopen discovery
Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987).
Id. See also Blair v. Transam Trucking, Inc., No. 09-2443, 2014 WL 5298171 (D. Kan. Oct.
for the limited purpose of allowing the City to issue Rule 45 business-record subpoenas to
plaintiff’s past employers and educational institutions. The City must issue any such subpoenas
within ten days of the filing of this order.
IT IS THEREFORE ORDERED that the City’s motion to reopen discovery is
granted. Plaintiff’s objections to the City’s business-record subpoenas (see ECF No. 120)
Dated July 21, 2017, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O'Hara
U.S. Magistrate Judge
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