Brightwell v. Hershberger et al
Filing
150
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 12/22/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
DAVID BRIGHTWELL
:
v.
:
Civil Action No. DKC 11-3278
:
GREG HERSHBERGER, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this civil
rights case is a motion to quash and for entry of a protective
order
filed
by
Defendants
(“Defendants”).
briefed,
and
necessary.
Gregg
(ECF No. 145).
the
court
now
L.
et
al.
The issues have been fully
rules,
Local Rule 105.6.
Hershberger,
no
hearing
being
deemed
For the following reasons, the
motion will be denied.
I.
Background
Additional
underlying
memorandum opinion.
to
the
pending
facts
(ECF No. 136).
motion
will
be
are
included
in
a
prior
Only those facts relevant
discussed
here.
The
pending
motion relates to Plaintiff David Brightwell’s attempt to depose
Defendant
David
Miller.
Plaintiff’s
counsel
asserts
that
Plaintiff attempted unsuccessfully to serve Mr. Miller multiple
times in April and May 2015.
(ECF No. 148-1 ¶ 3).
On August 3,
2015, the undersigned entered a scheduling order establishing
that
depositions
were
to
be
completed
by
August
31
and
dispositive motions were due by September 30.
(ECF No. 135).
On
motion
September
25,
Defendants
filed
a
consent
for
an
extension of time “to allow for Plaintiff to complete Defendant
Miller’s deposition before the filing of a motion for summary
judgment.”
(ECF No. 139 ¶ 2).
The deadline for the submission
of dispositive motions was extended until October 23.
(ECF No.
140).
On
September
22,
Plaintiff
served
Mr.
Miller
subpoena to appear at a deposition on October 8.
Mr. Miller attended his deposition on October 8.
after
the
defendant,
Mr.
Miller
began,
upon
requested
realizing
that
he
a
(ECF No. 148-1
¶ 5).
deposition
with
that
be
Shortly
he
was
represented
a
by
Defendants’ counsel, the Maryland Office of the Attorney General
(the “OAG”) and the deposition was postponed.
3; 148-1 ¶ 6).
(ECF Nos. 145-2 ¶
On October 16, the OAG informed Mr. Miller that
it would represent him once he executed a legal representation
agreement.
(ECF No. 145-2 ¶ 4).
The OAG has not yet received
an executed agreement from Mr. Miller.
October
21,
the
parties’
counsel
regarding the scheduling order.
9).
Defendants’
counsel
(Id.).
communicated
On or about
telephonically
(ECF Nos. 145-2 ¶ 5; 148-1 ¶
alleges
that
Plaintiff’s
counsel
represented that he would not depose Mr. Miller “until briefing
on the motion for summary judgment had been completed.”
No. 145-2 ¶ 5).
(ECF
Plaintiff’s counsel asserts that he conveyed
2
that he “did not intend to [depose Mr. Miller] given the short
schedule unless Defendants’ summary judgment motion relied on
statements from [Mr.] Miller.”
On
October
23,
Defendants
(ECF No. 141)1.
judgment.
(ECF No. 148-1 ¶ 9).
filed
a
motion
for
summary
On November 20, Plaintiff’s counsel
e-mailed
Defendants’
counsel
Miller’s
deposition.
(ECF
to
No.
inquire
145-2,
about
at
scheduling
23).
Mr.
Defendants’
counsel replied that they objected to conducting the deposition
because “[d]iscovery cut-off is over and the Defendants have
already filed their brief for summary judgment.”
Defendants’
counsel
also
asserted
that
he
(Id. at 25).
“relied
on
[Plaintiff’s counsel’s] representation . . . that [he] would not
try to depose Mr. Miller until after briefing on the motion for
summary judgment was completed.”
(Id.).
December
8,
served
subpoena
to
Plaintiff’s
appear
January 6, 2016.
at
counsel
a
deposition
On November 25 and
Mr.
currently
(ECF No. 148-1 ¶ 13).
Miller
with
scheduled
a
for
Under the current
amended briefing schedule, Plaintiff’s response is due January
18 and Defendants’ reply is due by February 26.
(See ECF No.
147).
1
The motion (ECF No. 141) is docketed as being filed on
behalf of Mr. Miller, as well as other defendants, but the
motion itself does not include Mr. Miller, as to whom default
has been entered. Furthermore, it appears that Michael McDonald
has entered his appearance on behalf of Mr. Miller, but it is
not clear when and whether the entry of appearance was
intentional. Counsel are directed to clarify the representation
issue within 3 days.
3
On December 4, 2015 Defendants filed the pending motion to
quash and for entry of a protective order.
(ECF No. 145).
Plaintiff filed a response in opposition (ECF No. 148), and
Defendants replied (ECF No. 149).
II.
Analysis
A
subpoena
issued
pursuant
generally
must
to
Rule
45
be
served
is
“a
within
form
of
discovery”
and
discovery
deadlines.
See 476 K Street, LLC v. Seneca Specialty Ins. Co.,
No. TDC-14-2739, 2015 WL 3464459, at *2 (D.Md. May 28, 2015).
“District courts have broad discretion to manage the timing of
discovery.”
Innovative Therapies, Inc. v. Meents, 302 F.R.D.
364, 382 (D.Md. 2009)(citing Ardrey v. United Parcel Serv., 798
F.2d 679, 682 (4th Cir. 1986), cert denied, 480 U.S. 934 (1987)).
Defendants
subpoena
is
argue
untimely
that
Plaintiff’s
because
discovery
November
closed
25,
in
2015
August.2
Defendants also object to the prospect of Plaintiff’s counsel
taking
Mr.
Miller’s
deposition
motion for summary judgment.
after
having
access
to
their
Defendants assert:
Miller’s deposition would not only create
the burden and expense of traveling to
western Maryland to prepare for and attend a
deposition that should have been taken
several months ago, it is distracting and
could potentially result in even further
2
Plaintiff’s contention that Defendants do not
standing to challenge the subpoena is unpersuasive.
As
parties note, a party has standing to enforce a court’s
and orders - in this case, the court’s scheduling order.
ECF Nos. 145-1, at 6; 148, at 11 n.7).
4
have
both
rules
(See
efforts to take discovery.
To allow
Plaintiff to, in effect, re-open discovery
now that a motion for summary judgment has
been filed disadvantages the defendants and
smacks of gamesmanship because it would
enable Plaintiff to use Defendants’ motion
as a guide post.
(ECF No. 145-1, at 8).
Defendants admit that they initially
consented
deposition
of
assert
that
close
to
of
contingent
Plaintiff’s
discovery,
on
the
but
deposition
taking
submission of dispositive motions.
Mr.
Miller
this
place
after
the
agreement
was
prior
the
to
Plaintiff counters that he
is simply attempting to complete the deposition that already
began, as agreed to by Defendants, but which has been delayed
due to issues with Mr. Miller’s representation.
at 8-10).
(ECF NO. 148,
Plaintiff asserts that he is not seeking to re-open
discovery beyond deposing Mr. Miller.
Here, Defendants have not adequately shown that they will
be unduly burdened if Plaintiff is allowed to depose Mr. Miller.
Traveling to the deposition in western Maryland is not unduly
burdensome.
In addition, unlike the cases cited by Defendants,
there is no risk that denying their motion would widely reopen
discovery.
which
In fact, the court in 476 K Street, the case on
Defendants
most
directly
rely,
compelled
limited
additional discovery after the deadline because it deemed the
information relevant and not unduly burdensome to produce.
WL 3464459, at *3.
2015
Here, Plaintiff is not asking to re-open
5
discovery beyond taking one deposition that had already been
agreed to, scheduled, and begun.
that
Plaintiff
has
Moreover, there is no evidence
deliberately
discovery deadline.
attempted
serving
Mr.
Miller,
deposition,
as
deposition
began,
circumvent
the
Rather, Plaintiff has attempted to depose
Mr. Miller for roughly eight months.
in
to
agreed
to
but
Defendants’ counsel.
Plaintiff
by
When ultimately successful
was
prepared
Defendants,
was
on
adjourned
to
take
October
by
Mr.
the
8.
The
Miller
and
Accordingly, Plaintiff’s counsel has been
diligent in attempting to depose Mr. Miller, notwithstanding the
delay in formalizing the representation agreement between Mr.
Miller and Defendants’ counsel.
Defendants’ argument that they will be prejudiced by the
deposition
because
they
have
already
filed
summary judgment is also unavailing.
their
motion
for
Defendants contend that
Plaintiff will be able to use the summary judgment motion as a
“guide post” for the deposition, but this vague assertion is not
sufficient to warrant preventing a deposition that was scheduled
and
commenced
prior
be
to
Defendants
will
necessary,
following
Plaintiff’s
memorandum,
the
able
the
filing
to
file
of
a
deposition
thus
further
prejudice.
6
Defendants’
reply
and
motion.
memorandum,
the
reducing
filing
the
risk
if
of
of
III. Conclusion
For the foregoing reasons, Defendants’ motion to quash and
for the entry of a protective order will be denied.
A separate
order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
7
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