Buckner v. United Parcel Service, Inc.
Filing
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ORDER granting in part and denying in part 55 Motion to Compel; granting 59 Motion to Compel and granting 64 Motion to Continue. Counsel should read its entirety for critical deadlines and information. Signed by Magistrate Judge David W. Daniel on 12/22/2011. (Marsh, K)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:09-CV-00411-BR
CHRISTOPHER EUGENE BUCKNER,
Plaintiff,
v.
UNITED PARCEL SERVICE, INC.,
Defendant.
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ORDER
This matter is before the Court onpro se Plaintiffs motion to compel [DE-55], Defendant's
motion to compel and for a limited extension of discovery [DE-59], and Defendant's motion to
continue the trial date [DE-64]. Defendant has responded to Plaintiffs motion [DE-56], and
Plaintiff filed a reply) [DE-57]. Plaintiff has also responded to Defendant's motion [DE-60].
Accordingly, the matters are ripe for decision.
BACKGROUND
Plaintiff is an employee of Defendant, United Parcel Service, Inc. Plaintiff initially alleged
violations of the National Labor Relations Act, the North Carolina Wage and Hour Act, the Labor
Management Relations Act, the Fair Labor Standards Act ("FLSA"), and some federal and state
administrative code sections.
However, the Court subsequently dismissed several of Plaintiffs
claims, and only his overtime claim under the FLSA, 29 U.S.C. § 207, remains. [DE-28 & 36.]
On June 20,2011, Plaintifffiled his first motion to compel [DE-49], which sought responses
I The Court's local rules do not pennit replies in discovery disputes. Local Civil Rule 7.1(f)(2). The Court
has read Plaintiffs reply, but finds that its consideration is not necessary to the Court's ruling on this matter. Plaintiff
shall familiarize himself with the Court's local rules, which may be found on the Court's website at
http://www.need.uscourts .govlru lesIDefault. aspx.
to a number of Rule 34 document requests served on Defendant on March 19, 2011. Defendant
responded that the parties had engaged in several discussions in June 2011 regarding the Plaintiffs
document requests and had resolved many of the pending discovery disputes. On June 21, 2011,
Defendant advised Plaintiffthat it would proceed with document production and that it would follow
up with him the following week with an estimated time frame for production. On June 27, 2011,
without further communication with Defendant's counsel, Plaintiff mailed to the Court, and to
Defendant, the first motion to compel.
The Court denied the first motion to compel without prejudice for Plaintiff to refile after
Defendant made its document production and the parties attempted in good faith to resolve the
remaining disputed issues. The Court also noted that this would allow Plaintiff to specify in any
subsequent motion the particular requests that remained outstanding. On August 5, 2011, Plaintiff
filed his second motion to compel, which sought responses to the same Rule 34 document requests
that were the subject of the first motion to compel. That same day, Defendant sent, by overnight
mail, its document production to Plaintiff.
On August 11, 2011, Defendant served interrogatories and document requests on Plaintiff.
Defendant also noticed Plaintiffs deposition for September 14, 2011. On September 6, 2011,
Plaintiff responded by email to Defendant's counsel with a series of objections to the discovery
requests, and on September 7, 2011, Plaintiff again emailed Defendant's counsel, in response to a
message from Defendant's counsel regarding his deposition, stating that he had not received any
deposition notice, that the time and location for the deposition were unacceptable, and that his
deposition would be inappropriate because he is pro se and would not be able to cross examine
himselfin court. Def.'s Mem., Ex. 2 & 3 [DE-59-3 & 59-4]. Defendant's counsel's efforts to reach
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Plaintiff to discuss these disputes failed, and on September 15, 2011, Defendant filed the instant
motion to compel and for an extension of the discovery deadline.
DISCUSSION
I.
Plaintiff's Motion to Compel [DE-55].
Defendant first argues that the Court should deny Plaintiffs motion because he did not confer
in good faith with Defendant's counsel before filing his motion as required by Local Civil Rule
7.I(c). For that same reason, Plaintiffs prior motion to compel [DE-49] was denied without
prejudice to refile after Defendant had made its document production and the parties had attempted
in good faith to resolve any remaining disputed issues. [DE-5l.]
Plaintiff contends that he
attempted to confer with Defendant's counsel, but was unable to "secure the requested information
in whole without court action." Pl.'s Mot. at 3 [DE-55]. After receiving the August 5 production,
Plaintiff objected, by email to Defendant's counsel, that the documents were "completely
unacceptable" in form and that they were fabricated or contained false information. Def.' s Resp.,
Ex. J [DE-56-2].
It is evident that the parties have had difficulty communicating due in part to Plaintiffs work
schedule and access to mail. Plaintiff chose to file this action and must make himself reasonably
available to participate in discovery. Plaintiff shall confirm with Defendant the mailing address at
which he wishes to receive correspondence regarding this case, and the Court will hold Plaintiff
accountable for receiving documents sent to that address. It is further evident that the parties did
undertake some discussions in an attempt to resolve the discovery dispute. However, Plaintiff
appears to have understood that he was to receive Defendant's document production on August 5
and when he did not, he then filed the instant motion. Therefore, giving due consideration to
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Plaintiff s pro se status and in the interest ofmoving this case forward, the Court will not again deny
Plaintiffs motion on procedural grounds and will proceed to the merits and address each document
request in tum.
Request No.1: All and Complete Payroll Records, Payroll History, Electronic
Timecards in all Forms and from all Sources to include but not limited to Electronic
Time Clocks and DIAD Boards For Christopher Eugene Buckner UPS Employee
number 2086863 from October 2006 through Present Date.
Defendant objected to this request on various grounds, but ultimately produced Plaintiffs
payroll records from November 4, 2006 through June 25, 2011, which it maintains represents
Plaintiff s complete payment history with Defendant. While Plaintiff initially objected to the time
frame for the documents Defendant had agreed to produce, PI. 's Mot., Ex. C. at 3 [DE-55-3],
Defendant ultimately produced Plaintiffs complete payment history. Furthermore, Defendant has
submitted a declaration executed by its counsel, which states that the documents were produced to
Plaintiff "as they are maintained in the ordinary course of business at UPS." Decl. of Kimberly L.
Fogarty ("Fogarty Decl.") § 24 [DE-56-l]. Therefore, it appears that Defendant has fully responded
to this request, and, accordingly, Plaintiffs motion with respect to Request No.1 is DENIED.
Request No.2: Daily and Weekly Employee Work Report, Time Card Reports,
Daily and Weekly Payroll Details Reports, Daily and Weekly Employee Statistics
Reports For Christopher Eugene Buckner UPS Employee number 2086863 from
October 2006 through Present Date.
Defendant objected to this request on various grounds, but ultimately produced Plaintiffs
time card data from August 2007 through July 2, 2011, which it maintains is the complete time card
data for Plaintiff that was available in Defendant's database. Again, Plaintiff objected to the time
frame for the documents Defendant had agreed to produce, PI.'s Mot., Ex. C. at 3, but Defendant
ultimately produced Plaintiff s complete time card data available in its database. Furthermore,
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Defendant has submitted evidence that it does not maintain time card audits for more than six weeks.
Fogarty Decl. § 20. With respect to the Weekly Employee Work Report, Defendant contends that
it does not maintain those reports as created by the local management teams, but only the data used
to create the reports and that all relevant data from any such report was produced in the time card
data. Id. § 19-20. It appears to the Court that Defendant has produced all the requested information
that is in its possession, custody, or control, and, accordingly, Plaintiffs motion with respect to
Request No.2 is DENIED.
Request No.3: Complete Pay Wage History For Christopher Eugene Buckner UPS
Employee number 2086863 from October 2006 through Present Date.
Defendant objected to this request on various grounds, including that it was duplicative, but
otherwise contends that it has produced Plaintiffs payroll records for his entire employment with
Defendant. Plaintiffresponded that Defendant uses multiple versions ofthe same report and that the
request was intended to ensure that he received all versions of reports containing his payroll
information so that he could uncover any inconsistencies in the information provided. Pl.'s Mot.,
Ex. C at 3. Defendant has produced all of Plaintiffs payroll records and has confirmed that there
is "no 'wage history' separate and apart from payroll records." Fogarty Decl. § 7. It appears that
Plaintiff has received all documents responsive to his requests related to his pay history, and,
accordingly, Plaintiffs motion with respect to Request No.3 is DENIED.
Request Nos. 4-10:
Request No.4: All and Complete Supervisor's Reports for the Entire Raleigh, NC
Hub from October 2006 through Present Date.
Request No.5: All and Complete Package Center Daily and Weekly Operations
Report Statistics for All Centers in the Raleigh, NC Hub from October 2006 through
Present Date.
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Request No.6: Twilight, Midnight and Preload Daily and Weekly Operations Report
Statistics for the Entire Raleigh, NC Hub from October 2006 through Present Date.
Request No.7: All and Complete Records and or Reports Generated by and or for
a Software Program Utilized by UPS Management that tracks any and all changes
made to Electronic Time and by Who and When they were made for All Employee's
for the Entire Raleigh, NC Hub from October 2006 through Present Date.
Request No.8: All and Complete Pay Wage History for the Last 100 Permanent
Full-time Package Car Drivers either Hired and or Promoted and or Awarded New
Bids for the Entire Raleigh, NC Hub from October 2006 through Present Date.
Request No.9: All and Complete Time Card Reports, Daily and Weekly Payroll
Detail Reports and All Electronic Time Cards from All Sources for All Employee's
for the Entire Raleigh, NC Hub from October 2006 through Present Date.
Request No.1 0: All and Complete PTE edits for each day for the Entire Raleigh, NC
Hub from October 2006 through Present Date.
Defendant objected to these requests on various grounds, including that they sought
confidential information for other employees, which Defendant contends is not relevant to Plaintiff's
remaining FLSA claim, and that the phrase "Supervisor's Reports" was vague. Plaintiff responded
that Defendant uses multiple versions ofthe same report and that the request was intended to ensure
that he could compare reports to uncover falsified documents, that Defendant is aware of the
requested "Supervisor's Reports," that the requests are reasonably calculated to lead to the discovery
ofadmissible evidence, and that other employees' payroll information is not confidential. PI.' s Mot.,
Ex. C at 4-7.
Plaintiff's sole remaining claim in this action is an overtime claim under the FLSA, 29
U.S.C. § 207. Plaintiff has alleged that Defendant made alterations to his electronic time record,
which deprived him of the appropriate pay for overtime worked. Compl.
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1, 6(a), 7(c) & 8.
Therefore, to the extent that Defendant maintains other reports not produced that contain Plaintiff's
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payroll related information, such reports may well be relevant to Plaintiffs claim that Defendant
altered his time record. However, the Court agrees with Defendant that the payroll information of
other employees is not relevant to Plaintiff s claim that he was not paid for overtime worked.
Accordingly, Plaintiffs motion with respect to Request Nos. 4-7, 9, and 10 is GRANTED IN PART
to the extent such reports exist and contain information related to Plaintiffs time records and is
DENIED IN PART as to any information related to other employees' time records. In the event
Defendant maintains any responsive documents, it must only produce the portion that contains
information related to Plaintiffs time records and shall redact, ifnecessary, any information related
to other employees' time records. To the extent Defendant maintains no responsive documents,
Defendant shall so state in its response. Plaintiffs motion with respect to Request No.8 is
DENIED, as it only relates to records regarding other employees' records, which are not relevant
to Plaintiff s overtime claim.
In summary, Plaintiffs motion with respect to Request Nos. 1-3 and 8 are DENIED and
Request Nos. 4-7, 9 and 10 are GRANTED IN PART AND DENIED IN PART.
II.
Defendant's Motion to Compel and for Extension of Discovery Deadline [DE-59].
Defendant asks the Court to compel Plaintiff to respond to interrogatories and document
requests and to sit for his deposition at the noticed location. Defendant also seeks an extension of
the discovery deadline. Plaintiff opposes Defendant's motion in total.
A.
Requests for Production of Documents and Interrogatories.
Defendant served ten requests for production and ten interrogatories on Plaintiff. Plaintiff
responded to each discovery request with the general objections that the interrogatory or document
request was vague, overly broad, unduly burdensome and not reasonably calculated to lead to the
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discovery of admissible evidence. In addition to the general objections, Plaintiff indicated that he
had produced some responsive documents in his Rule 26(a) initial disclosures and that Defendant
was in possession of some of the requested material. Plaintiff has produced no documents and
provided no information in response to the document requests and interrogatories.
Request Nos. 1-3 & 6-10:
Request No.1: Each and every document that relates to or reflects all sources and/or
amounts of your income or earnings, in whatever form, from UPS and any other
source(s), for the period from January 1, 2006 to the present, including but not
limited to your federal and state tax returns and I.R.S. Forms W-2 and 1099.
Request No.2: Each and every document that relates to or reflects the number of
hours you claim to have worked per week for UPS from November 1, 2006 to the
present, including but not limited to all Calendars, diaries, journals, schedules,
appointment books, leave records, hospitalization records, or other records indicating
your presence or absence at work.
Request No.3: Each and every document that relates to or reflects the damages to
which you contend you are entitled in this lawsuit.
Request No.6: Each and every document that relates to, reflects, or evidences any
grievances or complaints, whether internal or external, regarding any activity that you
contend in this lawsuit constitutes a violation of the Fair Labor Standard Act,
including without limitation the grievances/complaints that you filed and any
documents reflecting the settlement or resolution of such matters.
Request No.7: Each and every document that you contend supports your allegation
that UPS has falsified records relating to your hours of work and/or rates of pay.
Request No.8: Each and every document that you contend supports your allegation
that UPS has paid you the incorrect rate of pay for all overtime hours worked.
Request No.9: Each and every document that you believe supports your contention
that any alleged FLSA violations by UPS were willful.
Request No. 10: To the extent not otherwise produced in response to the foregoing
requests, each and every document that you contend supports your claims against
UPS.
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These requests are similar in that they seek information regarding Plaintiffs income and
hours worked or other information that Plaintiff contends supports his claim that Defendant failed
to pay him for overtime worked. The Court has considered each of these requests and finds that,
given the nature of Plaintiffs claim, they seek relevant information reasonably calculated to lead to
the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). As to Plaintiffs specific objections,
he need not reproduce documents that he has provided previously with his initial disclosures, and
the time frame is limited to November 1, 2006 to the present, which is the time period of payroll
records that Defendant produced. Def. 's Resp. at 6 [DE-56]. Furthermore, while Defendant would
presumably possess some of the documents it has requested, as Plaintiff contends, Defendant has
explained that it is interested in any notes Plaintiff may have made on the documents and whether
there are any inconsistencies between Plaintiff s and Defendant's records. Therefore, Defendant's
motion is GRANTED as to Request Nos. 1-3 and 6-10. To the extent Plaintiff has no further
responsive documents within his possession, custody or control, he shall so state in his response.
Request Nos. 4-5:
Request No.4: Each and every document that relates to or reflects any lawsuit,
state, local, or federal government agency charge, complaint, claim, or action,
including bankruptcy filings, that has been filed or otherwise initiated by you or on
your behalf, including but not limited to any and all documents relating to or
reflecting all lawsuits and proceedings identified in response to Interrogatory No.5
served contemporaneously herewith.
Request No.5: Each and every document that relates to or reflects any instance in
which you have been arrested and/or convicted by any state, county, local, or federal
government court, department, or agency, including but not limited to any and all
documents relating to or reflecting all arrests and convictions identified in response
to Interrogatory No.6 served contemporaneously herewith.
Plaintiffobjected that these requests are, among other things, irrelevant. Defendant contends
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that the infonnation sought goes to Plaintiff s credibility. Evidence of a criminal conviction may be
used, subject to certain limitations, to attack a witness's character for truthfulness. Fed. R. Evid.
609. Additionally, evidence of a crime, wrong, or other act, may be admissible for certain limited
purposes. Fed. R. Evid. 404(b). While this type of infonnation may ultimately prove inadmissible,
and Plaintiff is entitled to later challenge Defendant's use of such evidence, the Court finds that it
is relevant for the purpose sought - to explore potential grounds to challenge Plaintiffs credibility
- and is, therefore, reasonably calculated to lead to the discovery of admissible evidence. See
E.E.o.c.
v. Luihn Food Sys., Inc., No. 5:09-cv-387-D, 2011 WL 649749, at *5 (E.D.N.C. Feb. 11,
2011) (granting, in the context of a Title VII discrimination case, a motion to compel production of
infonnation related to charging parties' criminal history, including arrests, charges, and convictions
for felonies and misdemeanors). Therefore, Defendant's motion with respect to Request Nos. 4-5
is GRANTED.
Interrogatory Nos. 1-4 & 7-10:
Interrogatory No.1: Identify each and every person with whom you have
communicated concerning any of the allegations and claims contained in the
Complaint and, for each such person identified: state the type ofcommunication (e.g.
oral, written, computer, etc.); state the date ofthe communication; describe in detail
the substance of the communication; state the identity of all participants and
witnesses to the communication; and identify any and all documents evidencing or
supporting such communication. For each person listed, give an address and phone
number at which the person may be contacted.
Interrogatory No.2: Identify each and every person whom you believe has
knowledge of any facts relating to any of the allegations or claims contained in the
Complaint and, for each such person identified, state the facts believed to be known
by that person. For each person listed, give an address and phone number at which
the person may be contacted.
Interrogatory No.3: Identify all documents, including but not limited to Calendars,
diaries, journals, day timers, tapes, or other compilations of infonnation or data
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created by you or at your request, that contain information pertaining to your
employment with UPS, including but not limited to any such documents, that show
your job duties or hours of work.
Interrogatory No.4: IdentifY all documents ofwhich you know or have awareness,
regardless ofwhether they are or have ever been in your possession, pertaining to the
claims and allegations made in the Complaint, or otherwise related to alleged
wrongful conduct by UPS.
Interrogatory No.7: IdentifY any names other than Christopher Eugene Buckner
by which you have ever been known and the dates that you used or were known by
each name.
Interrogatory No.8: State the date and place of your birth; your social security
number; your current home address; the names, ages, and gender ofall persons living
at said address and their relationship to you; and the name(s) and addressees) ofyour
spouse and former spouse(s), if any.
Interrogatory No.9: IdentifY each and every separate item of damages that you are
seeking to recover in this action. For each category of damages identified, state the
dollar amount to which you contend you are entitled, describe in detail the
calculations by which you determined the amount of such damages, identifY each and
every fact and document that supports your claim for such damages.
Interrogatory No. 10 For each week in which you claim you were not properly
compensated under the Fair Labor Standards Act as alleged in the Complaint, state
the number of hours you claim you worked in that week, the basis for that
calculation, and identifY any documents that support your contention regarding the
number of hours you claim to have worked.
Plaintiffmade the same general obj ection to each interrogatory - that it was irrelevant, vague,
overbroad, unduly burdensome, and not calculated to lead to the discovery of admissible evidence.
These interrogatories are similar in that they seek information regarding the basis for Plaintiff s
claims, potential witnesses, or other information that Plaintiff contends supports his claim that
Defendant failed to pay him for overtime worked. The Court has considered these interrogatories
and finds that, given the nature of Plaintiff s claim, they seek relevant information reasonably
calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(l). Therefore,
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Therefore, Defendant's motion with respect to Interrogatory Nos. 1-4 and 7-10 is GRANTED.
Interrogatory Nos. 5 & 6:
Interrogatory No.5: List each lawsuit and each state, local, or federal government
agency charge, complaint, claim, or action, including bankruptcy filings, that has
been filed or otherwise initiated by you or on your behalf. For each such lawsuit,
charge, complaint, claim, or other action listed, identify all parties thereto; state the
date on which the action was initiated; identify the court or agency where the action
was filed; state the case, charge, claim, or action number; describe the nature of the
action (i.e., employment discrimination charge, unemployment claim, workers'
compensation claim, contract dispute, tort lawsuit, bankruptcy action, etc.); indicate
whether the case, charge, claim, or action remains pending as of the date of your
response to this interrogatory; and, if applicable, describe in detail how the
complaint, lawsuit, charge, claim, or action was resolved.
Interrogatory No.6: List each instance in which you have been indicted, charged,
and/or arrested by any state, county, local, or federal government court, department,
or agency. For each such indictment, charge, and/or arrest:· state the date, case
number, and charge number; describe the nature of the offense upon which the
indictment, charge, and/or arrest was based; state the state and county in which the
indictment, charge, and/or arrest occurred; state the identity of the indicting,
charging, and/or arresting court, department, and/or agency; describe the disposition
of the indictment, charge, and/or arrest; state the dates over which you were
incarcerated for any indictment, charge, and/or arrest; and describe the conditions of
any parole or probation resulting from the indictment, charge, or arrest.
Plaintiff made the same general objection to these interrogatories, that they are irrelevant,
vague, overbroad, unduly burdensome, and not calculated to lead to the discovery of admissible
evidence. These interrogatories seek the same type of information as Document Request Nos. 4 and
5, and the Court finds that they seek relevant information that is reasonably calculated to lead to the
discovery of admissible evidence for the same reasons previously discussed, see supra pp. 9-10.
Therefore, Defendant's motion to compel is GRANTED as to Interrogatory Nos. 5 and 6.
In summary, Defendant's motion to compel Plaintiffs responses to requests for production
and interrogatories is GRANTED.
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B.
Plaintiff's Deposition.
Defendant noticed Plaintiffs deposition for September 14,2011, at Defendant's counsel's
office "in the Raleigh-Durham area" during nonnal business hours. Def.'s Mem. at2 § II [DE-59-1].
Plaintiff objected that the noticed time and location would create an undue hardship because he
would have to travel over an hour round trip to an "unfamiliar hostile environment during a work
day losing wages[.]" Pl.'s Mem. at 5 § III [DE-60].
Defendant may depose Plaintiffby right pursuant to Rule 30(a) ofthe Federal Rules ofCivil
Procedure. As to the location for deposing a party, Rule 30 is silent. Generally, a plaintiff must
make himself available for deposition in the district where the action is pending. Estate of
Gerasimenko v. Cape Wind Trading Co., 272 F.R.D. 385,387 (S.D.N.Y. 2011). However, "a party
may unilaterally choose the place for deposing an opposing party, subject to the granting of a
protective order designating a different place." New Medium Tech. LLC v. Barco N V, 242 F.R.D.
460, 465-66 (N.D. Ill. 2007). "The decision of where a deposition should occur is ultimately an
exercise in the vast discretion a district court has in supervising discovery." !d. at 462.
Plaintiff resides in Raleigh, North Carolina, approximately 20 miles from Defendant's
counsel's office in Durham, North Carolina, which is the location where the deposition was noticed.
The Court finds that the noticed location is reasonable. While it is outside of the district, it is in
close proximity to Plaintiffs residence and, thus, creates no undue hardship on Plaintiff. With
respect to the time issue, it is not unreasonable for Plaintiff to attend his deposition during nonnal
business hours. Plaintiff filed this action and must bear some of the burden in litigating it.
Furthennore, Defendant has stated that it will not penalize or retaliate against Plaintiff for taking a
day off from work to attend his deposition and that he can use a vacation day or take an unpaid day
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off. Def.'s Mem. at 10 [DE-59-1]. Accordingly, Defendant's motion to compel Plaintiff to sit for
his deposition is GRANTED, and Defendant shall re-notice Plaintiffs deposition to occur at its
Durham office between the hours of9:00 a.m. and 5:00 p.m., Monday through Friday, on a date no
later than January 18,2012.
C.
Extension of Deadlines.
Defendant requested that the discovery and dispositive motions deadline be extended by 30
days after the Court's ruling on its motion to compel and that the trial date be continued. The Court
finds good cause to grant the extension to allow the parties to effectuate the directives of this order.
The parties shall respond to the discovery requests, as ordered herein, by January 6, 2012, all
discovery shall be completed by January 30, 2012, potentially dispositive motions shall be filed no
later than February 29, 2012, and the trial ofthis matter is continued to Senior Judge W. Earl Britt's
June 4, 2012 term of court in Raleigh, North Carolina.
CONCLUSION
Plaintiffs motion to compel [DE-55] is GRANTED IN PART AND DENIED IN PART,
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and Defendant's motion to compel and for extension ofdiscovery deadlines [DE-59] is GRANTED,
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and Defendant's motion to continue [DE-64] is GRANTED. The parties shall bear their own
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expenses in connection with the motions, as the Court finds that the circumstances would make an
award of expenses unjust. Fed. R. Civ. P. 37(a)(5).
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This the ~ day of December, 2011.
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DAVID W. DANIEL
United States Magistrate Judge
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