Holliday v. Commonwealth Brands, Inc.

Filing 93

Minute Order. Proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: ORDER denying 86 Motion for Leave to depose a crucial defense witness a second time; Motion Hearing held on 8/3/2011 re 86 MOTION for Leave to depose a crucial defense witness a second time because of defendant's improper withholding of documents until after the witness's deposition filed by Tilden Holliday. (car, )

MINUTE ENTRY
WILKINSON, M. J.
AUGUST 3, 2011
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TILDEN HOLLIDAY

CIVIL ACTION

VERSUS

NO. 10-2785

COMMONWEALTH BRANDS, INC.

SECTION “A”(2)

HEARING AND ORDER ON MOTION
APPEARANCES: Richard Traina and Caleb Didriksen, representing plaintiff; Jennifer
Englander and Tracy Kern, representing defendant
MOTION:

Plaintiff’s Motion for Leave of Court to Depose a Crucial Defense
Witness a Second Time Because of Defendant’s Improper
Withholding of Documents Until After the Witness’s Deposition,
Record Doc. No. 86

O R D E R E D:

XXX : DENIED. In this motion, plaintiff seeks to take the deposition of non-party
witness Lauren Trauth for a second time to examine her concerning ten (10) pages of
documents produced by defendant to plaintiff after Trauth’s first deposition. Two
interactive legal standards apply to this motion.
First, where – as here – the court has set a deadline in a Rule 16 scheduling order
for the completion of discovery, the deadline “may be modified only for good cause and
with the judge’s consent.” Fed. R. Civ. P. 16(b)(4) (emphasis added). In determining
“good cause” in connection with a Rule 16 scheduling order of the type that was entered
in this case, the court must weigh the following factors: (1) the explanation for the
failure to comply, (2) the importance of the matters that are the subject of the order,
MJSTAR: 0 : 15

(3) potential prejudice in allowing the requested action and (4) the availability of a
continuance to cure such prejudice. Nunez v. United States Postal Serv., 298 F. App’x
316, 319 (5th Cir. 2008) (district court did not abuse discretion in denying leave to
designate experts beyond the scheduling order deadline); Hamburger v. State Farm Mut.
Auto. Ins. Co., 361 F.3d 875, 883-84 (5th Cir. 2004) (court did not abuse discretion in
barring testimony of late-designated expert witness); Metro Ford Truck Sales, Inc. v.
Ford Motor Co., 145 F.3d 320, 324 (5th Cir. 1998) (district court did not abuse discretion
in denying leave to designate expert and file expert report after deadline).
Second, concerning depositions, Fed. R. Civ. P. 30(a)(2)(B) provides that "(a)
party must obtain leave of court, . . . if . . . the person to be examined already has been
deposed in the case." Leave of court to permit the second deposition of a witness "shall
be granted to the extent consistent with the principles stated in Rule 26(b)(2)." Those
principles include avoidance of unreasonably cumulative or duplicative discovery, Fed.
R. Civ. P. 26(b)(2)(C)(i); prohibition of discovery when the party seeking discovery "has
had ample opportunity to obtain the information by discovery in the action,” Fed. R. Civ.
P. 26(b)(2)(C)(ii); and restricting discovery when “the burden or expense of the proposed
discovery outweighs its likely benefit," considering a variety of cost-benefit factors. Fed.
R. Civ. P. 26(b)(2)(iii).
Applying the foregoing standards in this case, I find that plaintiff has failed to
establish “good cause” to depose Trauth a second time beyond the court’s deadline. The
court initially set a May 24, 2011 deadline for the completion of all discovery, including
depositions. Record Doc. No. 9. At a conference conducted on June 23, 2011, three (3)
weeks after defendant produced the ten (10) pages of documents he claims justify a
second deposition of Trauth, the presiding district judge continued the trial date and
extended the discovery deadline, but only for the limited purpose of permitting plaintiff
to take certain depositions specifically identified in his order. Record Doc. No. 85. That
order did not include a re-deposition of Trauth, even though the ten (10) pages had been
produced to plaintiff three (3) weeks before that conference. I find that these ten (10)
pages of documents were neither subject to the disclosure requirement of Fed. R. Civ. P.
26(a)(1) nor responsive to any of the discovery requests identified by plaintiff in his
motion papers that were issued by plaintiff before Trauth’s deposition. Instead, the
materials were responsive only to a discovery request issued by plaintiff to defendant
after he deposed Trauth the first time. Under these circumstances, I find plaintiff’s
explanation for his request to depose Trauth again after the court’s deadline
unpersuasive. Re-deposing Trauth is also unimportant because she was thoroughly
deposed the first time around, including on all topics addressed in the ten (10) pages of
documents produced on June 1, 2011, if not on the documents themselves. While the
potential prejudice to defendant in permitting another deposition of Trauth is slight, the
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prejudice to a non-party like Trauth in being required to appear again for another
deposition is considerable. Yet another trial continuance would neither cure this
prejudice nor serve the interests of resolution of this case.
Even if good cause to permit this untimely re-deposition could be established, I
also find that weighing the factors concerning the re-deposition of witnesses under Rules
30(a) and 26(b)(2) militates against permitting Trauth’s second deposition by plaintiff.
The subject matter of the ten (10) pages of documents produced on June 1st was known
to plaintiff through other information and discovery already obtained. Permitting Trauth
to be deposed again would be unreasonably cumulative or duplicative and plaintiff has
already had ample opportunity to obtain the information sought. This is a garden variety
employment case in which substantial discovery, motion practice and other pretrial
activity has already occurred. In my judgment, this case has already been overly
litigated. Under these circumstances, I cannot conclude that the likely benefit of another
deposition of Trauth outweighs its expense or burden, particularly on Trauth,
considering the specific factors in Rule 26(b)(2)(C)(iii).
Both sides have requested awards of attorney’s fees and costs associated with this
motion. As the loser of this motion, plaintiff is clearly not entitled to any such award. In
this instance, however, even defendant, the winner, is not entitled to sanctions. By its
plain terms, Fed. R. Civ. P. 37(a) does not authorize imposition of a sanctions award to
the opponent of an unsuccessful Rule 30(a)(2) motion. Instead, it contemplates such
awards only for specified discovery failures, not including refusal to agree to or denial
of a Rule 30(a)(2) leave request. Beyond the lack of authority for such an award in the
Rules, I decline to exercise the court’s inherent authority to sanction plaintiff in
connection with this motion. Although it was unsuccessful, I do not find that the motion
was legally or factually frivolous or that it otherwise sinks to a sanctionable level. In
connection with this motion, both sides must bear their own fees and costs.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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