Smith et al v. State Farm Fire and Casualty Company

Filing 30

RULING denying 29 Motion to Compel Deposition of Gulf Coast Catastrophe Consultants, LLC Representative, Josh Bargee filed by defendant State Farm Fire and Casualty Company. Signed by Magistrate Judge Stephen C. Riedlinger on 10/4/2011. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ALVIN AND APRIA SMITH
CIVIL ACTION
VERSUS
NUMBER 11-95-BAJ-SCR
STATE FARM FIRE AND CASUALTY
COMPANY
and
JONATHAN SHEPHERD
CIVIL ACTION
VERSUS
NUMBER 11-97-BAJ-SCR
STATE FARM FIRE AND CASUALTY
COMPANY
and
THOMAS RUCKER
CIVIL ACTION
VERSUS
NUMBER 11-98-BAJ-SCR
STATE FARM FIRE AND CASUALTY
COMPANY
RULING ON MOTIONS TO COMPEL
Defendant State Farm Fire and Casualty Company filed a Motion
and

Order

to

Compel

the

Discovery

Deposition

of

Gulf

Coast

Catastrophe Consultants, LLC Representative, Josh Bargee in each of
the above cases.
and CV 11-98.

Record document number 29 in CV 11-95, CV 11-97

No opposition has been filed to any of the motions.

Defendant filed the motions pursuant to Rule 37, Fed.R.Civ.P.,
seeking an order compelling the plaintiffs to provide a date for
the discovery deposition of Josh Barbee, the representative of Gulf

Coast Catastrophe Consultants, LLC.1 Defendant stated that despite
the June 30, 2011 fact discovery deadline, the plaintiffs had yet
to provide a date to depose Barbee.2

Defendant attached to the

motion email correspondence dated June 17, June 23 and June 27
related to its request to schedule Barbee’s deposition before the
June 30 deadline.3
A review of the record shows that it was not until two weeks
before the scheduling order deadline that the defendant inquired
about Barbee’s availability for a deposition.

With no response,

another email was sent on June 23 and the defendant was finally
informed on June 27 that Barbee would be out of the country for a
month.

Two days later the defendant filed this Motion to Compel

Barbee to appear for a deposition in 30 days.
The Federal Rules of Civil Procedure to not require that a
party

provide

convenient

dates

for

depositions

to

be

taken.

Cooperation between the parties and their attorneys in setting

1

Defendant stated that Gulf Coast is a public adjusting firm
retained by the plaintiffs.
2

The December 7, 2010 Scheduling Order issued in each of
these cases set June 30, 2011 as the deadline for completing fact
discovery and September 15, 2011 as the deadline for expert
discovery, including depositions of expert witnesses.
Record
document number 15 in CV 11-95, CV 11-97 and CV 11-98.
3

A review of the record shows that it was not until two weeks
before the deadline that the defendant inquired about Barbee’s
availability for a deposition. Another communication occurred on
June 23 and the defendant was finally informed on June 27 that
Barbee would be out of the country for a month. Record document
number 29 in each case, exhibits 2 and 3.
2

deposition dates is encouraged, but these efforts are not always
successful.

When cooperative efforts fail the party who wants to

take the deposition must move forward under Rules 30 and 45 and set
the deposition by serving a notice and a subpoena if necessary. If
a party or the person being deposed believes he has not been
provided with reasonable notice or has some other basis for
objecting, he can file a motion to quash or for a protective order.
Otherwise,

the

person

subpoenaed

is

expected

to

appear

and

testify.
The present record does not indicate that the defendant has
ever issued a notice take Barbee’s deposition or served him with a
subpoena. Since there is nothing to show that Barbee has failed to
appear for a properly noticed deposition, the defendant is not
entitled to any relief under Rule 37.
Accordingly, the Motion to Compel the Discovery Deposition of
Gulf Coast Catastrophe Consultants, LLC Representative, Josh Bargee
filed by defendant State Farm Fire and Casualty Company in each of
these three cases is denied.
Baton Rouge, Louisiana, October 4, 2011.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

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