American Furukawa, Inc. v. HOSSAIN

Filing 148

OPINION AND ORDER Granting In Part and Denying In Part Plaintiff's 128 Motion for Leave to Conduct Additional Discovery with Respect to Defendants' Witness List and Ordering Defendants to Produce an Updated Witness List. Signed by District Judge Gershwin A. Drain. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMERICAN FURUKAWA, INC.,
Plaintiff,

Case No. 2:14-cv-13633

v.

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

ISTHIHAR HOSSAIN, a Michigan Resident,
and HT WIRE & CABLE AMERICAS, LLC,
a Limited Liability Company

UNITED STATES MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS

Defendants.
/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION FOR LEAVE TO CONDUCT ADDITIONAL DISCOVERY WITH RESPECT TO
DEFENDANTS’ WITNESS LIST [128] AND ORDERING DEFENDANTS TO PRODUCE
AN UPDATED WITNESS LIST
I. INTRODUCTION
Before the Court is Plaintiff’s Motion for Leave to Conduct Additional
Discovery with Respect to Defendants’ Witness List, filed May 16, 2016. Dkt. No.
128. The matter has been fully briefed. Upon review of the Motion, the Court finds
that good cause has been shown to partially grant the requested relief. Accordingly,
for the reasons discussed below, the Motion will be GRANTED IN PART and
DENIED IN PART.

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II. BACKGROUND
Plaintiff commenced this action on September 19, 2014. In the Court’s
initial Scheduling Order, a deadline of April 21, 2015 was set for the parties to file
witness lists. Dkt. No. 23. On July 7, 2015, the Court amended the Scheduling
Order, setting September 30, 2015 as the new discovery cutoff date, but did not
extend the date for filing witness lists. Dkt. No. 40. On September 16, 2015, the
Plaintiff filed its Amended Complaint, adding HT Wire as a Defendant. Dkt. No.
65. On December 22, 2015, the Court issued a Second Amended Scheduling
Order, extending the discovery cutoff to March 15, 2016, but again did not extend
the deadline for filing witness lists. Dkt. No. 107. Defendants filed their Witness
List on February 23, 2016. Dkt. No. 109. The Defendants’ Witness List
encompassed numerous categories, including “[a]ll past or present” employees of
HT Wire & Cable Americas, LLC, Electric Wire & Cable Co., Ltd., Furukawa
Electric Co, Ltd., and several other companies. See Dkt. No. 133 (Exhibit B).
In response to Defendants’ late filing, Plaintiff filed a Motion to Strike the
Witness List on March 21, 2016. Dkt. No. 112. In an Order dated May 11, 2016,
the Court denied Plaintiff’s Motion, but said that, “if Plaintiff finds it necessary to
conduct additional discovery or depositions, it should file a motion with the Court
for immediate consideration, and the Court will take appropriate action.” Dkt. No.
126.

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Plaintiff then filed a Motion for Leave to Conduct Additional Discovery
with Respect to Defendants’ Witness List on May 15, 2016. Dkt. No. 128. Plaintiff
seeks leave to:
A.

Issue a set of interrogatories requesting information as to each
of Defendants’ witnesses, including name and contact
information, whether Defendants have actually spoken to such
person, whether defendants actually intend to call such person
as a witness and the facts to which such witness will testify, if
any; and

B.

Leave to depose any such witnesses who will be called to
testify

Dkt. No. 128, at 2 (Pg. ID No. 3337). A final pre-trial conference in this case is set
for August 10, 2016. A jury trial is then scheduled to begin on August 18, 2016.
III. LAW & ANALYSIS
Federal Rule of Civil Procedure 16(b)(4) provides that “[a] schedule may be
modified only for good cause and with the judge’s consent.” Courts have broad
discretion in managing discovery, and a decision on a request for an extension of
discovery is reviewed only for abuse of discretion. Bentkowski v. Scene Magazine,
637 F.3d 689, 696 (6th Cir. 2011). In determining whether good cause has been
established, “[t]he overarching inquiry . . . is whether the moving party was
diligent in pursuing discovery.” Dowling v. Cleveland Clinic Foundation, 593 F.3d
472, 478 (6th Cir. 2010). The Sixth Circuit has instructed district courts to consider

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the following factors: “(1) when the moving party learned of the issue that is the
subject of discovery; (2) how the discovery would affect the ruling below; (3) the
length of the discovery period; (4) whether the moving party was dilatory; and (5)
whether the adverse party was responsive to prior discovery requests.” Id.
“[W]hether the opposing party will suffer prejudice by virtue of” amending the
trial schedule is also a “relevant consideration” in ruling on a Rule 16(b)(4) good
cause exception. Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003).
Plaintiff was made aware of Defendants’ Witness List about three weeks
before the close of discovery. See Dkt. No. 107, 109. Even if pursued vigorously,
three weeks is not a sufficient amount of time to issue interrogatories and conduct
depositions on a case of this nature. On the other hand, Defendants are correct to
point out that Plaintiff had some opportunities to depose a number of witnesses on
Defendants’ List during the sixteen months of discovery. Defendants argue both
that Rule 26 disclosures provided an indication of potential witnesses and that
some of the individuals on Defendants’ List also appear on Plaintiff’s Witness List.
Dkt. No. 133 at 3–4 (Pg. ID No. 3458–59). Balancing the fact that Plaintiff learned
of the issue late with the reality that some of the potential witnesses are not a
surprise to Plaintiff, the Court finds that factors one and three of the Dowling test
support additional, but limited, discovery.

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Additionally, because Plaintiff only had three weeks to respond to
Defendants’ Witness List, needing extra time to conduct depositions cannot be
considered dilatory. As to the fifth Dowling factor, Plaintiff has not demonstrated
that Defendant was significantly unresponsive throughout discovery. Overall, the
Dowling factors support a grant of leave to Plaintiff.
Even though the Dowling factors support a grant of leave for additional
discovery, Plaintiff’s request for leave does not specify what the scope of
additional discovery will be once its Motion is granted. It seeks to issue
interrogatories as to all individuals on Defendants’ Witness List, then “[l]eave to
depose any such witnesses who will be called to testify.” Dkt. No. 128, at 2 (Pg. ID
No. 3337). Though Plaintiff “suspects” that it will only conduct discovery of a
short list of witnesses, it has not made any concrete predictions as to the extent of
additional discovery. Dkt. No. 135, at 2 (Pg. ID No. 3485).
Rather than grant indefinite leave, the Court will temporarily reopen
discovery until September 15, 2016. Furthermore, discovery will be limited to
witnesses who were not listed on Plaintiff’s witness list, and not specifically
identified by name on Defendants’ Witness List before March 15, 2016.
Additionally, in the interest of expediting the process, the Court will order
Defendants to produce a list of witnesses, identified by name, reasonably expected

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to be called at trial. The Court finds this way of proceeding preferable to having
Plaintiff first issue a set of interrogatories.
IV. CONCLUSION
For the reasons discussed herein, Plaintiff’s Motion [128] is GRANTED IN
PART.
IT IS HEREBY ORDERED that Defendants will submit to Plaintiff a list
of witnesses expected to be called at trial by Monday, August 1, 2016.
IT IS FURTHER ORDERED that Plaintiff has until September 15, 2016
to depose the listed witnesses as necessary.
The Court shall issue an amended Scheduling Order reflecting these
changes.
Dated: July 28, 2016

s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon
counsel of record and any unrepresented parties via the Court's ECF System to
their respective email or First Class U.S. mail addresses disclosed on the Notice of

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Electronic Filing on July 28, 2016.
s/Shawna Burns on behalf of Tanya R. Bankston
TANYA R. BANKSTON
Case Manager & Deputy Clerk

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