Brahma Group, Inc. v. Cargill Meat Solutions Corp.

Filing 61

ORDER granting in part and denying in part 55 plaintiff's motion for additional time for the deposition of Fred Wines. Signed by Magistrate Judge James P. O'Hara on 12/3/2018. (srj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRAHMA GROUP, INC.
Plaintiff,
v.
CARGILL MEAT SOLUTIONS CORP.,
Defendant.

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Case No. 17-1076-JWB

ORDER
This diversity case arises from a payment dispute for construction work performed
by the plaintiff, Brahma Group, Inc. (“BGI”), at defendant Cargill Meat Solutions
Corporation’s (“Cargill”) Dodge City, Kansas beef-processing facility. BGI has filed a
motion under Fed. R. Civ. P. 30(d)(1) seeking additional time to complete the deposition
of Fred Wines, Cargill’s project manager for BGI’s work (ECF No. 55). Because the
court finds good cause for the extension, the motion is granted, at least in part.
Cargill produced Mr. Wines for a deposition in this case on October 8, 2018.
Although the deposition was scheduled to begin at 9:00 a.m., the deposition did not begin
until 10:16 a.m. because “[BGI] was still in the process of compiling and preparing its
exhibits.”1 During his deposition, Mr. Wines testified for approximately six hours and
reviewed more than 140 exhibits. According to BGI, its counsel examined Mr. Wines
about “his background, his relationship with [Cargill], the operation of the [Cargill]

1

ECF No. 58 at 3.

Dodge City meat-packing facility, and his working relationship with BGI from late 2014
through the spring of 2016.”2 BGI now seeks an additional four hours to complete Mr.
Wines’ deposition, claiming it has “an additional 120 exhibits to discuss covering the
remaining [four] months of the parties’ working relationship.”3

Cargill opposes

continuing the deposition, citing a lack of good cause, the significant travel required
(either on the part of Mr. Wines or counsel), and disruption to Mr. Wines’ schedule.
Fed. R. Civ. P. 30(d)(1) states,
[u]nless otherwise stipulated or ordered by the court, a deposition is limited
to one day of 7 hours. The court must allow additional time consistent with
Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the
deponent, another person, or any other circumstance impedes or delays the
examination.
As Cargill observes, the Advisory Committee Notes to this Federal Rule state that
“[t]he party seeking a court order to extend the examination … is expected to show good
cause to justify such an order.” The scheduling order in this case (ECF No. 29) limited
depositions to six hours.4 Amendments to the scheduling order similarly require a
showing of good cause.5
The court finds that given the fact-specific claims in this case, the duration of the
events at issue, and the apparent importance and knowledge of Mr. Wines, some
2

ECF No. 55 at 3.

3

Id.

4

The amended scheduling order (ECF No. 47) did not modify this time limit.

5

See Fed. R. Civ. P. 16(b)(4). Cargill also notes that under Fed. R. Civ. P.
30(a)(2)(A)(ii), a party must obtain the court’s leave to depose a person that has already
been deposed in the case.

additional deposition time is justified. The record suggests, however, that had BGI’s
counsel been better organized, Mr. Wines’ deposition might have been completed in a
single day, as defense counsel presumably would have agreed to extend the deposition
beyond the six-hour limit. Thus, although the court will allow the continued deposition,
it shall be limited to two hours of testimony.

Cargill shall determine whether the

deposition is conducted in Dodge City or Wichita. The court, exercising its discretion,
also will impose some site and cost-shifting conditions to ameliorate the inefficiency
caused by the lack of preparation by BGI’s counsel. See Fed. R. Civ. P. 26(c)(1)(B).
Should the deposition be held in Dodge City, BGI shall pay the actual attorney fees and
out-of-pocket expenses for defense counsel to travel (but not for the deposition itself). If
the deposition is held in Wichita, BGI shall pay Mr. Wines’ out-of-pocket travel
expenses.
IT IS SO ORDERED.
Dated December 3, 2018, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U. S. Magistrate Judge