Neelon v. Kruger et al

Filing 233

Judge Indira Talwani: ORDER entered granting 226 Motion for Protective Order; denying 231 Cross-Motion for a Variance of Court Orders 231 and 180 . (MacDonald, Gail)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

DANIEL P. NEELON,
Plaintiff,
v.
BLAIR KRUEGER and DESERT EAGLE
RESOURCES, LTD. f/k/a GARRISON
INTERNATIONAL, LTD.,
Defendants.

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Civil Action No. 12-cv-11198-IT

ORDER
January 12, 2015
TALWANI, D.J.
On January 8, 2015, Plaintiff Daniel P. Neelon filed an Emergency Motion for Protective
Order Regarding Defendants’ Notice of Three Mongolian Depositions in Violation of Court
Orders [#226]. On January 9, 2015, Defendants Blair Krueger and Desert Eagle Resources Ltd.
(collectively, “Defendants”) filed an Opposition to Plaintiff’s Emergency Motion and CrossMotion for Variance of Court Orders [#231] [hereinafter, Def.s’ Opp’n], which sought a variance
of the Court’s orders dated November 26, 2014 and December 16, 2014. For the reasons set
forth herein, Plaintiff’s motion is ALLOWED and Defendants’ motion is DENIED.1

1

Plaintiff’s Reply Memorandum in Support of His Emergency Motion for Protective Order
Regarding Defendants’ Notice of Three Mongolia Depositions in Violation of Court Orders
[#232] seeks a further protective order that “prevents Defendants from . . . curtail[ing] . . .
Plaintiff’s time and rights regarding expert reports.” Id. at 2. The court will not entertain a
motion for a protective order included in the text of a reply brief. Moreover, if plaintiff intends
to file such a motion (or if Defendants intend to file a motion to change the date for expert
witness reports), counsel are directed to first confer as required under Local Rule 7.1.

The court’s Order [#180] of November 26, 2014, allowed a limited continuance of the
close of fact discovery from December 15, 2014 to January 31, 2015. With regard to depositions
of fact witnesses in Mongolia, the court allowed Defendants “to depose witnesses listed in their
Response to Court Order [#177] in Mongolia on or before January 30, 2015.”2 The court
specified that “[n]otices of such depositions must be served by December 31, 2014, and must
give at least 15 days notice of the scheduled depositions.” Order, 4 [#180] (emphasis added); see
also id. (“Defendants shall provide Plaintiff at least fifteen days notice of such depositions.
Deposition notices shall be served no later than December 31, 2014” (emphasis added)).
The Supplemental Scheduling Order [#213] of December 16, 2014, reiterated these limits
on fact discovery: “Defendants may take the depositions of witnesses in Mongolia if: (1) those
witnesses were identified in their November 26, 2014 filing with the court and (2) Defendants
comply with the notice requirements set forth in the court’s Order [#180] of November 26,
2014.” (emphasis added).
Defendants do not dispute that they noticed the depositions in Mongolia of three fact
witnesses on January 7, 2015—a week beyond the court’s deadline – and that one of the
witnesses, Battur Norovsambuu, was not included in the list Defendants provided to the court on
November 26, 2014. See Mem. Supp. Emergency Mot. Protective Order Ex. A [#227]; Def.s’
Opp’n. In seeking to be excused from the failure to comply with the court’s orders, Defendants
assert that their counsel acted in good faith and relied “perhaps mistakenly” on the court’s
directives at the December 15, 2015, hearing as sufficient. Def.s’ Opp’n at 1. Defendants point
to no ambiguities in the court’s orders, leaving the court with the unfortunate impression that if
2

Defendants have previously argued to the court that there would be no prejudice to Plaintiff
regarding the late notice of these depositions because “[t]hese individuals are taken straight from
Plaintiff’s Rule 26 disclosures, in which he described each of them as having relevant
information.” Def.s’ Resp. Order Dated Nov. 25, 2014, 6 [#175].
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the failure to comply with the court’s orders was not willful, then Defendants and their counsel
may simply not be reading the orders. In any event, nothing in this record allows the court to
find “Defendants’ counsel’s reliance [on] more than fifteen days as sufficient notice,” Id. at 6, to
be reasonable in light of Defendants’ obligation to read and comply with the court’s orders.
Defendants argue finally that the timing of the deposition notices was not Defendants
“unilaterally dictat[ing] the discovery schedule,” but “simply reflects the realities and hardship of
conducting voluntary discovery in a developing country on the other side of the world.” Id. at 4.
To suggest that the difficulties of discovery excuse the failure to comply with court orders in
entirely unpersuasive. Those “realities” should have focused Defendants’ close attention to the
court’s orders and, if the schedule imposed in those orders posed difficulties, Defendants should
have sought the court’s assistance. Unfortunately, that did not happen here.
For all of the above reasons, Plaintiff’s Emergency Motion for Protective Order
Regarding Defendants’ Notice of Three Mongolian Depositions in Violation of Court Orders
[#226] is ALLOWED, and Defendants’ Cross-Motion for a Variance of Court Orders [#231]
dated November 26, 2014 [#180] and December 16, 2014 [#213] is DENIED.
IT IS SO ORDERED.
January 12, 2015

/s/ Indira Talwani
United States District Judge

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