Hammann v. 1-800 Ideas Inc

Filing 230

ORDER Denying 218 Plaintiff's Pretrial Motion to Preserve Testimony. Signed by Magistrate Judge George Foley, Jr on 02/06/2013. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JERALD ALAN HAMMANN,

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Plaintiff,
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vs.
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800 IDEAS, INC.,
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Defendant.
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__________________________________________)

Case No. 2:08-cv-00886-LDG-GWF
ORDER
Motion to Preserve Testimony (#218)

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This matter comes before the Court on Plaintiff’s Motion to Preserve Testimony (#218),

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filed on December 6, 2012. Defendant filed a timely Opposition (#221) on December 21, 2012.

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Discovery in this matter closed on May 24, 2010. See Doc. #49 at 1:20. Trial is currently

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scheduled for July 8, 2013. See Doc. #226.

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Plaintiff seeks leave to depose third-parties Communications Management Services

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(“CMS”) and Sprint Communications L.P. (“Sprint”). Before the close of discovery in May 2010,

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Plaintiff served CMS and Sprint with Requests for Production of Documents. Defendant represents

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that Plaintiff did not issue notices for or take CMS or Sprint’s depositions. Plaintiff now contends

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the complexity of the produced documents requires oral testimony at trial. Plaintiff argues that due

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to several continuances of the trial date and because CMS and Sprint are remote from the trial

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location, their appearance cannot be ensured. Plaintiff therefore asserts it is necessary to conduct

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depositions of CMS and Sprint for use at trial. The Court construes Plaintiff’s Motion as a request

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to modify the Scheduling Order (#49) to re-open discovery in this case.

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A moving party must show good cause to modify a scheduling order. See Fed. R. Civ. P.

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16(b)(4); see also Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). In

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determining whether good cause exists to reopen discovery, courts may consider a variety of

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factors. See, e.g., United States ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th

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Cir.1995). Good cause determination focuses primarily, however, on the diligence of the moving

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party in its attempts to complete discovery in a timely manner. Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604, 609 (9th Cir.1992). Plaintiff was aware during discovery that CMS and Sprint

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may possess information regarding this case, as evidenced by Plaintiff’s timely serving Rule 45

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Production Request on both parties. Plaintiff had ample opportunity during the discovery period to

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depose CMS and Sprint, and could have served notices of depositions along with his Rule 45

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subpoenas. Plaintiff does not now offer any explanation why he did not attempt to depose CMS or

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Sprint during the discovery period, nor any arguments that establish good cause to reopen

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discovery. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Pretrial Motion to Preserve Testimony (#218)
is denied.
DATED this 6th day of February, 2013.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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