Brand Coupon Network, LLC v. Catalina Marketing Corp. et al
ORDER granting in part and denying in part 62 Joint MOTION to Amend Scheduling Order. Discovery due by 8/1/2015. Plaintiff`s Expert Witness List due by 9/1/2015. Defendant`s Expert Witness List due by 10/1/2015. Plaintiff`s Expert Reports due by 9/1/2015. Defendant`s Expert Reports due by 10/1/2015. Discovery from Experts due by 11/16/2015. Motions shall be filed by 12/16/2015. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 6/23/2015. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CATALINA MARKETING, INC.
Before the Court is the parties’ Joint Motion to Amend the Scheduling Order under Rule
16(b)(4) of the Federal Rules of Civil Procedure. (R. Doc. 62). Specifically, the parties are
requesting a one to two month extension of the deadlines related to fact discovery, expert
disclosures, expert discovery and dispositive motions.
A scheduling order “may be modified only for good cause and with the judge’s consent.”
Fed. R. Civ. P. 16(b)(4). To establish “good cause” under Rule 16(b)(4), the parties must show
that “despite acting diligently,” they are still unable to meet their upcoming deadlines.
Hernandez v. Mario’s Auto Sales, Inc., 617 F. Supp. 2d 488, 492 (S.D. Tex. 2009). The Court’s
Scheduling Order makes clear that any showing of good cause “must be supported with
information describing the discovery already completed, what necessary discovery remains, the
parties’ efforts to complete the remaining discovery by the deadline,” and any other information
showing the parties acted diligently. (R. Doc. 58 at 3). Considering the applicable standard, the
Court finds the parties have established good cause to warrant some modification of the
Scheduling Order, but not to the extent requested.
Here, the parties explain that their “delay” in completing discovery resulted from
“significant attorney turnover within the firms representing the parties” and that “[c]ounsel
previously responsible for significant aspects of the litigation are no longer associated with the
case.” (R. Doc. 62 at 1). “To date,” the parties indicate, “paper discovery has been conducted,
but depositions still need to be taken.” (R. Doc. 62 at 1).
The Court finds these representations insufficient to warrant the one to two month
modifications requested. Although the parties claim that there has been “significant” turnover of
attorneys involved in this case, this is not supported by the record. The Court entered the current
Scheduling Order deadlines on December 15, 2014 (R. Doc. 58), which were based on dates
suggested by the parties. (R. Doc. 56). Since that time, there has only been one change in
counsel of record for any party — on May 26, 2015 the Court granted Defendant’s Motion to
withdraw one of its attorneys as counsel of record. (R. Doc. 61). Beyond that, neither the record
nor the Motion supports the parties’ contention that “significant” attorney turnover has thwarted
their otherwise diligent discovery efforts.
The parties also claim that while “paper discovery” has been conducted, “depositions
need to be taken.” (R. Doc. 62 at 1). 1 But the parties have not been specific as to what discovery
has been conducted and what discovery remains. Simply stating that “paper discovery has been
conducted, but depositions still need to be taken,” is insufficient. The parties have not explained
who needs to be deposed, how many depositions they intend to take, or the issues to which these
depositions relate. It is also unclear whether any additional paper discovery remains and as to
what issues, as well. Finally, the parties did not explain their “efforts to complete the remaining
The parties specifically request a one month extension of the deadline for completing fact discovery “pursuant to . .
. Rules 33, 34 and 36” of the Federal Rules of Civil Procedure. (R. Doc. 62-1 at 1). Additionally, they seek an
additional month to complete “all discovery except experts” (fact discovery) and file discovery-related motions.
The Court’s original Scheduling Order deadlines did not distinguish between different forms of fact discovery, and
the Court will not make that distinction in connection with this Motion.
discovery by the deadline” or why, despite the exercise of due diligence, they were unable to do
so. (R. Doc. 58 at 3). For these reasons,
IT IS ORDERED that the parties’ Joint Motion to Amend Scheduling Order (R. Doc.
62) is GRANTED in part and DENIED in part.
The deadlines established by the Court’s Scheduling Order are modified as follows:
Completing fact discovery and filing discovery-related motions: August 1, 2015
NOTE: Any motions filed regarding discovery must be accompanied by a
certificate of counsel for the moving party, stating that counsel have conferred
in person or by telephone for purposes of amicably resolving the issues and
stating why they are unable to agree or stating that opposing counsel has refused
to so confer after reasonable notice.
Identifying experts and providing expert resumes:
September 1, 2015
Defendant(s): October 1, 2015
Providing expert reports:
September 1, 2015
Defendant(s): October 1, 2015
Completing expert discovery: November 16, 2015
Filing dispositive and Daubert motions: December 16, 2015
Signed in Baton Rouge, Louisiana, on June 23, 2015.
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
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