In re: NC Swine Farm Nuisance Litigation

Filing 544

ORDER granting 537 Motion to Modify Discovery Schedule; granting 538 Motion to Quash. Counsel should read the order in its entirety for critical information and deadlines. Signed by Magistrate Judge Robert B. Jones, Jr. on 11/7/2018. (Herrmann, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-13-BR
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IN RE: NC SWINE FARM
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NUISANCE LITIGATION
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ORDER

THIS DOCUMENT RELATES TO:
Blanks v. Murphy-Brown, LLC, No. 7:14-CV-219-BR
Blow v. Murphy-Brown, LLC, No. 7:14-CV-232-BR
These cases are before the undersigned on (1) Plaintiffs' motion to modify the discovery
schedule in the Blanks and Blow cases [DE-537]; and (2) nonparty Lisbon I Farms, Inc.'s motion to
quash a Rule 45 discovery subpoena [DE-538]. Responsive briefing was filed [DE-541, -542], and
the court held a telephonic hearing on November 5, 2018. For the reasons that follow, the motion
to modify the discovery schedule and the motion to quash are allowed.
I. BACKGROUND

The Blanks case involves four farms: Lisbon Sow Farm 1, JB Priest Farm 1, and JB Priest
Farm 2, which are owned by growers, and Lisbon Sow Farm 2, which is owned by Murphy-Brown.
The Blow case also involves four farms: Jarman Farm, R&K Jarman Farms 4-7, Eugene Whaley
Farm, and King Farms-Hollsville Farms, which are all owned by growers. These matters were
previously referred to the undersigned for the purpose of setting dates and protocols for inspection
of these hog farms. However, at that time Plaintiffs had not yet served subpoenas on the nonparty
farms and so, while the grower's counsel appeared at a hearing on the inspection schedule and

protocol, his clients were not before the court and the protocol entered applied only to the MurphyBrown owned Lisbon Sow Fann 2. [DE-51 O].
The order regarding the inspection dates and protocol was entered on July 13, 2018, setting
site inspections ofthe farms to occur between August 27 and September 17. [DE-510]. At that time
the Gillis trial was set to begin on September 4. On· July 25 and 26, Plaintiffs served document
subpoenas on all the grower-owned fanns except Lisbon I. However, on August 19, the parties filed
a joint motion for continuance of trial dates and a stay of discovery to explore settlement and to
begin the appeals process in earlier-tried cases. On August 23, the court entered an order related to
the discovery pool cases and Blanks and Blow, which continued the Gillis trial to November 13,
2018 and the McGowan trial to January 7, 2019, stayed discovery in Blanks and Blow until
November 13, 2018, and amended the farm inspection period in Blanks and Blow to November 19
through December 10. [D E-517]. The parties participated in mediation on September 9, 25, and 27
and October 10, but have yet to reach a resolution, and subsequently turned their attention to
preparation for the Gillis trial and to discovery, including fann inspections, in Blanks and Blow. On
October 18, Plaintiffs served a document subpoena on Lisbon I, which precipitated the motion to
quash and, to an extent, Plaintiffs' request for additional time to conduct farm inspections. The first

Blanks trial group Plaintiffs' trial is set to begin on November 12, 2019, and the remaining Blanks
and Blow Plaintiffs' trials have not been set.

II. DISCUSSION
A.

Motion to Modify the Discovery Schedule in Blanks and Blow [DE-537]
"A schedule may be modified only for good cause and with the judge's consent." Fed. R.

Civ. P. 16(b)(4). "'[T]he touchstone of 'good cause' under Rule 16(b) is diligence.' In other words,
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the focus of the 'good cause' inquiry is 'on the diligence of the party seeking modification of the
scheduling order."'

Neighbors Law Firm, P. C. v. Highland Capital Mgmt., L.P., No.

5:09-CV-352-F, 2011 WL 238605, at *2 (E.D.N.C. Jan. 24, 2011) (quoting Dilmar Oil Co. v.

FederatedMut. Ins. Co., 986 F. Supp. 959, 980 (D.S.C. 1997), aff'd, 129 F.3d 116 (4th Cir~ 1997)).
"Rule 16(b)(4) expressly limits modification of scheduling orders to good cause and thus does not
permit alteration of deadlines based upon a showing of extraordinary circumstances or in the interest
ofjustice." Id. (quoting Halpern v. Wake Forest Univ. Health Scis., 268 F .R.D. 264, 273 (M.D.N.C.
2010)). "Thus, a court may 'modify the schedule on a showing of good cause if [the deadline]
cannot be met despite the diligence of the party seeking the extension.'" Id. (quoting Fed. R. Civ.
P. 16(b) advisory committee's note to 1983 amendment).
Plaintiffs assert that despite diligence they have been unable to obtain subpoena discovery
of grower documents or to schedule and coordinate site visits that are necessary to their conduct of
farm inspections scheduled to occur between November 19 and December 10. Pis.' Mot. [DE-537]
at 1. In fact, the growers take the position that nonparty discovery was barred by the court's August
23, 2018 stay order and would only be appropriate after the stay is lifted on November 13. Mot. to
Quash [DE-538]. The court agrees, as discussed in more detail below, that the subpoena issued to
Lisbon I Ffilllls violated the court's discovery stay in Blanks. The need for document discovery from
the growers and for the negotiation of an inspection protocol for grower farms, which could not
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occur during the stay, provides good cause for modifying the inspection deadlines. Furthermore, at
the hearing, counsel for the growers- who it is worth emphasizing are nonparties- indicated that
the document subpoenas and site inspections can be burdensome to the growers trying to run their
farms so that negotiations to govern the scope of document subpoenas and farm inspections are vital

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and the more time allotted the better. Finally, while Defendant expresses a legitimate concern,
shared by the court, that these cases not be delayed, extending the deadlines will not necessitate a
continuance of the trials. Accordingly, the court finds good cause to modify the discovery deadlines
in the Blanks and Blow cases as follows:
Blanks v. Murphy-Brown, No. 7:14-CV-219-BR

1.

Site inspections of Plaintiffs' properties and the hog farms at issue may take place from

November 19, 2018 through February 22, 2019.
2.

Depositions of Plaintiffs, Defendant's employees, and fact witnesses may take place from

February 15, 2018 through March 15, 2019.
3.

On or before March 18, 2019, Plaintiffs shall disclose their case-in-chief experts and serve

those expert reports.
4.

On or before March 22, 2019, Defendant shall disclose its case-in-chief experts and serve

those expert reports.
5.

On or before March 27, 2019, Plaintiffs shall disclose their rebuttal experts and serve those

expert reports.
6.

All experts shall be deposed on or before May 3, 2019.

7.

Discovery shall be concluded on or before May 3, 2019.

8.

Any dispositive motions shall be filed on or before May 31, 2019.
Blow v. Murphy-Brown, No. 7:14-CV-232-BR

9.

Site inspections of Plaintiffs' properties and the hog farms at issue may take place from May

6 through May 31, 2019.

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10.

Depositions of Plaintiffs, Defendant's employees, and fact witnesses may take place from

May 20 through June 28, 2019.
11.

On or before July 1, 2019, Plaintiffs shall disclose their case-in-chief experts and serve those

expert reports.
12.

On or before July 5, 2019, Defendant shall disclose its case-in-chief experts and serve those

expert reports.
13.

On or before July 10, 2019, Plaintiffs shall disclose their rebuttal experts and serve those

expert reports.
14.

All experts shall be deposed on or before August 23, 2019.

15.

Discovery shall be concluded on or before August 23, 2019.

16.

Any dispositive motions shall be filed on or before September 23, 2019.
In setting these deadlines, the court has taken into account the existing trial schedule and

anticipated breaks between trials. The parties are cautioned that future requests for any extension
of these deadlines imP.acting the trial schedule will be disfavored. Counsel for the parties and the
growers are expected to work cooperatively and in good faith to execute this order and to keep to the
court's schedule. Accordingly, all disputes unable to be resolved through the meet and confer
process must be promptly brought to the court's attention by appropriate motion.

B.

Motion to Quash [DE-538]
Subpoenas issued to nonparties are governed by Fed. R. Civ. P. 45. See Fed. R. Civ. P. 34(c)

("As provided in Rule 45, a nonparty may be compelled to produce a document and tangible things
or to permit an inspection."). "In response to such a subpoena, a non-party may either file a motion
to quash or modify the subpoena pursuantto Fed. R. Civ. P. 45(d)(3 )(A), move for a protective order
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pursuant to Fed. R. Civ. P. 26(c), or oppose a motion to compel production of the subpoenaed
documents pursuant to Fed. R. Civ. P. 45(d)(2)(B)." Schaaf v. Smithkline Beecham Corp., 233
F.R.D. 451, 453 (E.D.N.C. 2005) (citing United States v. Star Scientific, Inc., 205 F. Supp. 2d 482,
484 (D. Md. 2002)). When considering the propriety of enforcing a subpoena, a trial court should
consider "the relevance of the discovery sought, the requesting party's need, and the potential
hardship to the party subject to the subpoena." Id (quoting Heat & Control, Inc. v. Hester Indus.,
785 F.2d 1017, 1024 (Fed. Cir. 1986)). "A party or attorney responsible for issuing and serving a
subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject
to the subpoena," and the court "must quash or modify a subpoena that subjects a person to undue
burden." Fed. R. Civ. P. 45(d)(l), (d)(3)(iv). "In the context of evaluating subpoenas issued to third
parties, a court 'will give extra consideration to the objections of a non-party, non-fact witness in
weighing burdensomeness versus relevance."' Schaaf, 233 F.R.D. at 453 (quoting Indem. Ins. Co.

ofN. Am. v. Am. Eurocopter LLC, 227 F.R.D. 421, 426 (M.D.N.C. 2005)). The determination of the
reasonableness of a subpoena requires the court to balance the interests served by demanding
compliance with the subpoena against the interests furthered by quashing it, weighing the benefits
and burdens, considering whether the information is necessary and whether it is available from
another source. See 9A Wright'& Miller, Fed Practice & Procedure§ 2463.1 (3d ed.) (collecting

cases);Springv. Bd ofTrusteesofCapeFearCmty. Coll., No. 7:15-CV-84-B0,2016WL4204153,
at *1 (E.D.N.C. Aug. 8, 2016).
The grower argues that the subpoena served on October 18 sought "discovery" in violation
of the stay in Blanks, and the court agrees. In Artis v. Murphy-Brown, the court determined that a
Rule 45 subpoena issued to anonparty sought "discovery" within the scope ofthe court's scheduling
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order, allowed the motion for protective order, and quashed subpoenas served after the close of
discovery. No. 7:14-CV-237-BR,2018 WL3352639, at *3 (E.D.N.C. July9, 2018). Here, Plaintiffs
served a Rule 45 subpoena on a nonparty in the Blanks case while discovery was stayed and,
therefore, service of the subpoena violated the court's stay and the subpoena will be quashed.
Plaintiffs may reserve the subpoena when the stay expires on November 13. Finally, although there
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are new farms at issue in these cases, the parties should be mindful of their previous negotiations in
the discovery pool cases regarding the scope of document subpoenas and a protocol for farm
inspections, as well as the court's guidance on prior inspection protocols for the grower farms and
Murphy.:.Brown owned farm. In other words, the parties should endeavor to be reasonable and
dissaude themselves from "unnecessarily reinventing the wheel" where time is short.

III. CONCLUSION
For the reasons stated above, Plaintiffs' motion to modify the discovery schedule in the
Blanks and Blow cases [DE-537] and nonparty Lisbon I Farms, Inc.'s motion to quash a Rule 45
discovery subpoena [DE-538] are allowed.
SO ORDERED, the 7th day of November 2018.

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