Middlesex Mutual Assurance Company d/b/a MiddleOak a/s/o Chason Management v. Britton
ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER re 28 Text Order, Scheduling Order, Terminate Scheduling Order Deadlines, Terminate Motions, 35 Text Order, 31 Cross MOTION to Compel depositions of pla intiff's witnesses and issuance of a verified bill of particulars filed by Sarah Britton, 29 MOTION to Compel Defendant Sarah Britton's Deposition filed by Middlesex Mutual Assurance Company d/b/a MiddleOak a/s/o Chason M anagement, Motions terminated: 31 Cross MOTION to Compel depositions of plaintiff's witnesses and issuance of a verified bill of particulars filed by Sarah Britton, 29 MOTION to Compel Defendant Sarah Britton's Deposit ion filed by Middlesex Mutual Assurance Company d/b/a MiddleOak a/s/o Chason ManagementTHIRD AMENDED SCHEDULING/CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.)Plaintiff's Motion to Compel (Docket No. 29) is granted; defendant's Cross-Motion to Compel (Docket No. 31) is granted in part, denied in part as stated in this Order.As for the Amended Scheduling Order, Discovery completed by 4/23/2018. Dispositive Motions due by 7/23/2018. Mediation To End by 7/31/2018.If no motions are filed, parties are to contact the Chambers of Judge Vilardo by 7/31/2018 to schedule a pretrial conference and set a trial date.So Ordered. Signed by Hon. Hugh B. Scott on 2/7/2018. (DRH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MIDDLESEX MUTUAL ASSURANCE COMPANY
d/b/a MiddleOak a/s/o Chason Management,
Hon. Hugh B. Scott
Before this Court is plaintiff’s motion to compel defendant’s deposition (Docket No. 29)
and defendant’s cross-motion to compel the deposition of plaintiff’s witnesses and other
production (Docket No. 31). Responses to plaintiff’s original motion were due by December 6,
2017, with replies due December 13, 2017 (Docket No. 30). With defendant’s cross-motion,
response to that motion was due by December 29, 2017, and the motions were argued on
January 10, 2018 (Docket No. 32; see Docket No. 34, minutes). While this motion was pending,
this Court held the Scheduling Order (Docket No. 28) deadlines in abeyance (Docket No. 35).
Upon consideration of these motions, it is hereby ORDERED that plaintiff’s Motion to
Compel (Docket No. 29) is GRANTED and defendant’s Cross-Motion to Compel (Docket
No. 31) is DENIED IN PART as explained below.
This is a diversity subrogation action. The claim arises from a fire at the insured
premises at 7 Hedge Court, Snyder, New York (see Docket No. 1, Compl.). Plaintiff insured the
fire-damaged property, filing this subrogation action on behalf of insured Chason Management
(Docket No. 29, PL. Motion to Compel ¶ 2).
The initial Scheduling Order (Docket No. 12) had discovery completed by August 15,
2017 (id.). After amendments (Docket Nos. 16, 28), the current amended Scheduling Order has
discovery due by January 31, 2018, with plaintiff’s expert disclosure was due by November 24,
2017, and defendant’s expert disclosure by December 21, 2017, and dispositive motions due
May 1, 2018 (Docket No. 28).
Plaintiff moved to compel defendant’s deposition, having sought this deposition since
September 2017 (Docket No. 29, Pl. Memo.). On September 22, 2017, plaintiff’s counsel
emailed defense counsel seeking dates for defendant’s deposition (id., Pl. Motion to Compel ¶ 3,
Ex. A) but defense counsel did not respond (id. ¶ 4). Plaintiff’s counsel then sent follow up
emails to defense counsel but without response (id. ¶¶ 5-9, Exs. B-D). Plaintiff ultimately
noticed defendant’s deposition for November 20, 2017 (id. ¶ 10, Ex. E), and then filed its motion
on November 15, 2017 (Docket No. 29, Pl. Notice of Motion to Compel).
Defendant, in responding to plaintiff’s motion, cross moved to compel the deposition of a
corporate representative of plaintiff, and identified witnesses for plaintiff (Docket No. 31).
Defendant also seeks to depose a representative of Chason Management; Chason Affinity
Companies’ office manager, Kathleen Ziemba; Chason Affinity’s community manager, Michael
Murphy; general adjuster from Vericlaim, Inc., William Termer; and plaintiff’s two identified
experts, Allyn Borrino and Michael Wald (id., Def. Atty. Affirm. ¶ 2) (collectively hereinafter
“plaintiff’s witnesses”). On or about February 8, 2017, defendant served Rule 26(a)(1)
disclosures and notices for depositions and demand for verified bill of particulars (id. ¶ 5). On or
about February 10, 2017, plaintiff served its Rule 26(a)(1) disclosures, listing the witnesses
defendant seeks to depose (id. ¶ 6). On May 24, 2017, defendant served notices to depose a
representative of plaintiff and of Chason Management and two plaintiff’s experts (id. ¶ 7), and
then, on July 13, 2017, she noticed the deposition of Ziemba, Murphy, and Termer (id. ¶ 8). She
also wants a verified bill of particulars from plaintiff and document production (id.).
Defendant argues that since she noticed her depositions before plaintiff that she should
enjoy priority (Docket No. 31, Def. Memo. at 2), without any citation of authority for this
proposition. While noting that the Federal Rules of Civil Procedure no longer provide for
priority of depositions (Docket No. 31, Def. Atty. Affirm. ¶ 19), plaintiff urges this Court to
exercise priority “in the interest of justice and fundamental fairness” (Docket No. 31, Def.
Memo. at 3; id., Def. Atty. Affirm. ¶ 19) to have defendant’s depositions held first. In
opposition to plaintiff’s motion to compel, defendant argues that she has been diligent in
defending this action (id., Def. Atty. Affirm. ¶ 16) and acted in good faith in providing responses
to plaintiff’s demands (see id. ¶¶ 16-17). She urges that she should depose plaintiff’s witnesses
before she testifies (id. ¶ 19; see also Docket No. 34, minutes (argument of defense counsel)).
Both sides claim that they contacted their opponent to schedule their respective
depositions without word from their opponent. Defendant contends, however, that “although
Plaintiff’s counsel has also made some good faith efforts to schedule some depositions, it is
unclear and confusing to your affiant who is to be deposed and when” (id., Def. Atty. Affirm.
Plaintiff argues that there is no civil bill of particulars under the Federal Rules of Civil
Procedure. Alternatively to that technical argument, it has treated the request for a bill of particulars
as Interrogatories and said that it has answered them (as well as producing documents) (Docket
No. 33, Pl. Response ¶¶ 21, 22), but did not produce its disclosure in its response. During argument,
plaintiff stated that document discovery has been completed (Docket No. 34, minutes), and defendant
did not counter that assertion.
Motions to Compel Depositions
Discovery under the Federal Rules is intended to reveal relevant documents and
testimony, but this process is supposed to occur with a minimum of judicial intervention. See
8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure
§ 2288, at 655-65 (Civil 2d ed. 1994). “Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense–including the existence,
description, nature, custody, condition, and location of any documents or other tangible things
and the identity and location of persons having knowledge of any discoverable matter.” Fed. R.
Civ. P. 26(b)(1) (effective Dec. 1, 2007).
Federal Rule 26(b)(2)(i) allows this Court to limit the scope and means for discovery if
“the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some
other source that is more convenient, less burdensome, or less expensive.” Under Rule 26(c),
this Court may issue a protective Order (not sought here) to protect a party “from annoyance,
embarrassment, oppression, or undue burden or expense” by not having a proposed disclosure or
discovery device, or conditioning the time and manner of that discovery. Fed. R. Civ. P.
26(c)(1), (1)(B)-(C); see id. R. 26(c)(1)(D) (limit the scope or the matters inquired into).
Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an Order
compelling discovery, with that motion including a certification that the movant in good faith
conferred or attempted to confer with the party not making the disclosure to secure that
disclosure without court intervention. Fed. R. Civ. P. 37(a)(2)(A). Similarly, under Rule 26(c),
prior to obtaining a protective order the movants must certify that they have in good faith
conferred or attempted to confer with the other affected parties in an effort to resolve the dispute
without court intervention, Fed. R. Civ. P. 26(c). Under Rule 26(c), the Court has power to
protect against abuses in discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984).
The appropriateness of a protective Order is a balance of the litigation needs of the requesting
party and the protectable interests of the party from whom discovery is sought. Mitchell v.
Fishbein, 227 F.R.D. 239, 245 (S.D.N.Y. 2005). This Court has broad discretion in issuing such
a protective order. Seattle Times, supra, 467 U.S. at 36.
Defendant invokes two concepts that the current Federal Rules of Civil Procedure have
abrogated. First, defendant seeks priority of her depositions since she noticed them before plaintiff
noticed its deposition of her (see Docket No. 31, Def. Memo.). As defendant concedes (Docket
No. 31, Def. Atty. Affirm. ¶ 19), priority of deposition from which party noticed the examination
first was abolished from the Federal Rules in 1970 when Rule 26(d) was amended, Occidental Chem.
Corp. v. OHM Remediation Servs., 168 F.R.D. 13, 14 (W.D.N.Y. 1996) (Foschio, Mag. J.); 6-
26 Moore’s Federal Practice—Civil § 26.122. When contested, the sequence of discovery is set at
the discretion of this Court, Occidental, supra, 168 F.R.D. at 14. This Court declines to set priority
or adopt defendant’s wish to grant her priority. While defendant argues that she noticed her
depositions before plaintiff, plaintiff moved to compel its deposition while defendant waited until
that motion was filed and cross-moved to compel. An ample extension of the discovery deadline (as
entered below) will allow both sides to complete all discovery, regardless of which party goes first.
Plaintiff showed its good faith in trying to schedule defendant’s deposition. Defendant also
has shown its similar good faith. Effort from both parties is needed, however, to work out the timing
for conducting depositions. On the present record, there is no inherent reason why one party should
go before the other. Defendant argues fundamental fairness should have her go forward first, but a
party should not wait to depose her opponent first before being questioned herself. In addition,
defendant now invoking priority and fundamental fairness failed to take the initiative after her
depositions were not held in moving to compel in the first instance rather than responding to
plaintiff’s motion to compel its deposition by cross moving. This Court at this time will not exercise
its discretion to schedule the depositions for the parties. The parties are to use the same good
faith effort in seeking their respective depositions as asserted in their motions to work out an
examination schedule convenient for all concerned. With the discovery deadline (as set forth below)
to be completed within 75 days of entry of this Order, there will be sufficient time to conduct all the
desired depositions. If the parties cannot agree on a schedule for these depositions, this Court
reluctantly may exercise its discretion in setting one for them; such a schedule possibly will be at
random as to the priority, and with little regard for the convenience of the parties, witnesses, or
Second, defendant moves to compel from plaintiff a civil Bill of Particulars. Rule 12(e) was
amended in 1948 to eliminate bills of particulars, 5C Charles A. Wright, Arthur R. Miller, Mary
Kay Kane, Richard L. Marcus, A. Benjamin Spencer, and Adam N. Steinman, Federal Practice
and Procedure Civil § 1375 (3d ed. Civil 2017). Technically, a bill of particulars was not a
discovery device but an amplification of a pleading, see 2 Moore’s Federal Practice—Civil
§ 12App.102 (2017). Plaintiff claims that it treated the demand for a bill of particulars as
Interrogatories and answered them. At oral argument, defendant does not object to any Answers
to Interrogatories she obtained. Those Interrogatory Answers are sufficient. Defendant is not
entitled to a bill of particulars under the Federal Rules but she did receive Answers to her recharacterized demand. Her cross-motion to compel production of a bill of particulars (Docket
No. 31) is denied, but defendant considered here demand to be Interrogatories that it
subsequently answered; this part of the cross-motion is alternatively deemed moot.
Plaintiff’s motion (Docket No. 29) to compel defendant’s deposition is granted.
Plaintiff’s cross-motion (Docket No. 31) is granted in part (that plaintiff’s witnesses be
deposed), but denied in part (that defendant’s deposition of those witnesses does not have
priority over plaintiff’s deposition).
Third Amended Scheduling Order
To allow the parties to complete discovery (especially, the discovery just discussed), the
Court amends the current Second Amended Scheduling Order (Docket No. 28) as follows:
o Discovery from both sides is to be completed by April 23, 2018, or 75 days from entry
of this Order;
o As a result, dispositive motions are now due by July 23, 2018;
o Referral to mediation ends by July 31, 2018;
o If no dispositive motions are filed, the parties are to contact the Chambers of Judge
Vilardo by July 31, 2018, to schedule a Pretrial Conference to set a trial date.
For the reasons stated above, plaintiff’s Motion to Compel (Docket No. 29) is granted
and defendant’s Cross-Motion to Compel (Docket No. 31) is granted in part, denied in
part as detailed above. As stated above, discovery from both sides is to be completed by
April 23, 2018.
/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
February 7, 2018
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