City of Dearborn Heights Act 345 Police & Fire Retirement System v. Chicago Bridge & Iron Company N.V. et al

Filing 250

SPECIAL MASTER ORDER # 8: The parties do not dispute that the Cohen case is clearly related to the instant case as demonstrated in an earlier joint status report to the Court in this case and defendants' reliance of producing a large number of documents from the Cohen case in early document production in this case. Thus the relevance of the requested documents is presumed. If necessary, plaintiffs could serve a third-party subpoena which would undoubtedly be granted. Because the docu ments are relevant, and there is no burden or prejudice to defendants in requiring their production, it is unnecessary to proceed by subpoena when defendants are a party to both cases and are in possession of the requested documents. The documents must be produced to plaintiffs forthwith at plaintiffs' expense. (As further set forth in this Order.) (Signed by Judge Shira A. Scheindlin on 7/15/2020) (cf)

Case 1:17-cv-01580-LGS Document 250 Filed 07/21/20 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------------x
In re CHICAGO BRIDGE & IRON
COMPANY N.V. SECURITIES LITIGATION

SPECIAL MASTER
ORDER #8

17 Civ. 01580 (LGS)
Related Cases:
17 Civ. 02414 (LGS)
17 Civ. 04251 (LGS)
18 Civ. 09927 (LGS)
18 Civ. 09928 (LGS)
------------------------------------------------------------------------x

By email dated June 23, 2020, plaintiffs’ counsel requested leave to serve a
document request or document subpoena for current and future deposition
transcripts (and their corresponding exhibits from counsel in Cohen v. Chicago
Bridge & Iron Company, N.V., pending in Texas state court. Defendants opposed
this request on the ground that discovery is closed in an email of June 25, 2020.
On June 25, 2020, I resolved the dispute via email. Following that, plaintiffs’
counsel requested that a formal order be issued.
Federal Rule of Civil Procedure 16(b)(4) provides for modification of a
discovery order only for good cause and with the consent of the judge. I am
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concerned here only with the “good cause” requirement. I find that plaintiffs’
counsel has shown good cause by noting that the requested transcripts did not exist
at the time of the discovery cut-off.
Defendants cite several cases in opposition that are easily distinguishable.
In Nunez v. City of New York, 2013 WL 2149869, at *6 (S.D.N.Y. May 17, 2013),
the court stated that “when a party creates a document within the scope of an
earlier discovery request, the responding party must supplement its discovery
response.” (Emphasis added). But here there was no earlier request for obvious
reasons – the documents did not exist at the time of the original request. Thus,
there was no response to supplement. In Zelaya v. Tutor Perini Corp., 2017 WL
4712421, at *3 (S.D.N.Y. Sept. 28, 2017), the court denied a motion to compel
discovery finding no good cause because the party knew of its need for other
documents well in advance of the close of discovery. That is not the case here.
Plaintiffs could not have known of these documents in advance of the close of
discovery as they could not know what depositions (if any) would be taken in a
different litigation. And in Agapito v. AHDS Bagel, LLC, 2018 WL 3216119, at *2
(S.D.N.Y. May 17, 2018), the court found good cause for modification because
counsel could not meet the deadline despite diligent efforts, and defendants argue
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that plaintiffs cannot meet this standard. But plaintiffs’ request does not implicate
due diligence. It is apparent that no document request could be made for
documents that do not exist. Nonetheless, defendants argue that plaintiffs’ counsel
in the Cohen case requested deposition transcripts from this case and obtained
them. But counsel did not advise whether any of the depositions in this case had
taken place at the time of counsel’s timely request. Here, by contrast, it is my
understanding that plaintiffs’ counsel is seeking deposition transcripts for
depositi9ons held after the discovery cut-off (i.e., beginning in January, 2020 and
including all future depositions).
The parties do not dispute that the Cohen case is clearly related to the instant
case as demonstrated in an earlier joint status report to the Court in this case and
defendants’ reliance o producing a large number of documents from the Cohen
case in early document production in this case. Thus the relevance of the requested
documents is presumed. If necessary, plaintiffs could serve a third-party subpoena
which would undoubtedly be granted. Because the documents are relevant, and
there is no burden or prejudice to defendants in requiring their production, it is
unnecessary to proceed by subpoena when defendants are a party to both cases and

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are in possession of the requested documents. The documents must be produced to
plaintiffs forthwith at plaintiffs’ expense.

So Ordered:
s/Shira A. Scheindlin
Shira A. Scheindlin
Special Master
Dated: New York, New York
July 15, 2020

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