Whitcher v. Day & Zimmermann NPS, Inc.

Filing 70

ORDER granting in part and denying in part 61 Motion to Compel; granting in part and denying in part 61 Motion for Extension of Time to File; granting 68 Motion. For the reasons stated above, DZNPS motion [Doc. 61] is GRANT ED IN PART AND DENIED IN PART as follows. TVA is ORDERED to present one or more corporate representatives for a Rule 30(b)(6) deposition on the noticed topics on June 14, 2017. The dispositive motion deadline for Plaintiff and DZNPS only is extended to June 15, 2017. TVA SHALL abide by the June 2 deadline. TVAs motion [Doc. 68] to withdraw the previously filed attachment [Doc. 64-1] isGRANTED. Signed by Magistrate Judge Susan K Lee on 6/1/2017. (BDG, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA

PHILLIP WHITCHER,
Plaintiff,
v.
DAY & ZIMMERMANN NPS, INC., and
BILL JOHNSON, President and CEO,
TENNESSEE VALLEY AUTHORITY,
Defendants.

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No. 1:15-cv-313-SKL

ORDER
Before the Court is a motion and supporting memorandum filed by Defendant Day &
Zimmermann NPS, Inc. (“DZNPS” or “Defendant DZNPS”), requesting the Court (1) to compel
co-Defendant Bill Johnson, President and CEO of Tennessee Valley Authority (“TVA” or
“Defendant TVA”) to present one or more corporate representatives for a Federal Rule of Civil
Procedure 30(b)(6) deposition; and (2) to extend the dispositive motion deadline for DZNPS
[Doc. 61, 62]. The Court ordered an expedited briefing schedule on this motion, in consideration
of the upcoming deadlines in this case [Doc. 63]. TVA filed a response [Doc. 64], and DZNPS
replied [Doc. 66].

Thereafter, Plaintiff Phillip Whitcher (“Plaintiff”) filed a response that

opposed DZNPS’ request to extend the dispositive motion deadline [Doc. 67]. The matter is
now ripe.
A second motion is also before the Court. TVA attached to its response brief an email
chain [Doc. 64-1] that inadvertently contained information shared between the various parties’
counsel that TVA believes to be confidential and immaterial to the issues before the Court. TVA

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filed a subsequent motion to withdraw the previously filed attachment and substitute a redacted
attachment [Doc. 68]. TVA’s redacted attachment is identical to the original with one exception
– the information at issue has been redacted. TVA’s motion to withdraw the previously filed
attachment is GRANTED and the Clerk is DIRECTED to disable the unredacted attachment
[Doc. 64-1]. In resolving DZNPS’ motion, the Court will consider TVA’s attachment with
redactions [Doc. 68-1] in place of the original [Doc. 64-1].
After careful consideration, the motion filed by DZNPS is GRANTED IN PART AND
DENIED IN PART as set forth herein.
I.

BACKGROUND
The parties’ original scheduling order, entered in May 2016, provided that all dispositive

motions must be filed by June 2, 2017 [Doc. 30 at Page ID # 126]. In the same scheduling order,
the parties set May 5, 2017 as the deadline for concluding discovery [id. at Page ID # 125].
DZNPS first served its Notice of 30(b)(6) Deposition on TVA on April 7, 2017, which
provided that the deposition had been scheduled for April 25, 2017 [Doc. 62 at Page ID # 285;
Doc. 62-1]. According to DZNPS, TVA later asked to reschedule the deposition to May 5, 2017
[Doc. 62 at Page ID # 283]. After the parties agreed to the new date and DZNPS served an
amended notice of deposition, TVA asked again if the deposition could be postponed, this time
until May 25, 2017 [id. at Page ID # 284]. TVA explains that the deposition date was selected as
follows:
On April 10, 2017, Tom Carson [(“Mr. Carson”)] was deposed,
and DZNPS attended his deposition. Mr. Carson was the TVA start
up manager at WBN 2 during the period relevant to Plaintiff’s
claims, and TVA agreed to a continuation of the deposition to
allow Plaintiff to examine Mr. Carson regarding a declaration
produced by TVA after April 10. The continuation of Mr. Carson’s
personal deposition was scheduled for May 25.

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[Doc. 64 at Page ID # 317, ¶ 1] (footnote in original omitted). According to DZNPS, in April
“TVA counsel Tricia Roelofs . . . proposed May 25, 2017 as the date for this 30(b)(6)
deposition” because “TVA, by its own admission, including in open court on April 11, 2017, was
struggling to produce documents and information that had been identified in the parties’ initial
disclosures and requested and promised in discovery for many months.” [Doc. 66 at Page ID #
330]. The April 11, 2017 hearing was on TVA’s motion to extend certain scheduling order
deadlines. Following that hearing, the Court entered an Agreed Order [Doc. 57] that extended
certain deadlines. TVA now points out that, “With the exception of an extension until May 12,
for the taking of Plaintiff’s deposition, the Agreed Order contains no extension for the taking of
any party depositions.” [Doc. 64 at Page ID # 317, ¶ 2] (emphasis in original).
Still, an agreement appears to have existed between counsel for co-Defendants that the
Rule 30(b)(6) deposition of a TVA representative would take place. DZNPS and TVA discussed
matters concerning the deposition in the days leading up to May 25, 2017. TVA states that on
May 15, 2017, its counsel “participated in an approximately one hour teleconference with
counsel for DZNPS to confer regarding the scope of matters listed in its deposition notice, and
the parties agreed to continue the discussion until May 22, to allow time for the undersigned
counsel and Mr. Carson to meet on May 21.” [Doc. 64 at Page ID # 318, ¶ 5] (footnote omitted).
Sometime before the May 21 meeting, Mr. Carson learned of a family emergency that caused
him to be unavailable for several days. On May 23, 2017, James Chase (“Mr. Chase”), counsel
for TVA, informed Lawrence Eastwood (“Mr. Eastwood”), counsel for DZNPS, that Mr. Carson
would be unavailable for the deposition [Doc. 62-5 at Page ID # 307]. Mr. Eastwood inquired as
to when the deposition would occur [id.]. Chase responded by email on May 24, 2017, stating in
part:

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Mr. Carson . . . will not be available tomorrow to appear for the
continuation of his personal deposition or as TVA’s designated
agency representative for matters listed in DZNPS’ amended
notice of party deposition pursuant to Fed. R. Civ. P. 30(b)(6). This
email further confirms that TVA previously informed DZNPS of
its objections to matters listed in the notice and amended notice;
that TVA and DZNPS were negotiating to resolve TVA’s
objections; and that an agreed disposition of TVA’s objections is
dependent TVA’s discussion of those matters with Mr. Carson.
Finally, this confirms that TVA will not designate an alternate
agency representative to appear for deposition on May 25, 2017.
[Doc. 62-7 at Page ID # 312-13].

Mr. Eastwood replied that TVA had not “formally or

informally ‘objected’ to any of DZNPS’s three Rule 30(b)(6) notices that date back to April 7.”
[Id. at Page ID # 312]. The same day, DZNPS filed the instant motion to compel or for an
extension of its dispositive motion deadline. TVA’s counsel later provided that Mr. Carson
could be available for the 30(b)(6) deposition on June 6 or 7, 2017 [Doc. 68-1 at Page ID # 340],
after the dispositive motion deadline.
II.

ANALYSIS
A. STANDARD OF REVIEW
Pursuant to Rule 26(b)(1), the scope of discovery is as follows:
Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to
the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties' relative
access to relevant information, the parties' resources, the
importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its
likely benefit.

Further, “[a] party may, by oral questions, depose any person, including a party . . . .” Fed. R.
Civ. P. 30(a)(1). Under Rule 30(b)(6), “a party may name as the deponent a public or private
corporation, a partnership, an association, a governmental agency, or other entity” and “[t]he

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named organization must then designate one or more officers, directors, or managing agents, or
designate other persons who consent to testify on its behalf.”
B. TVA’S OBJECTIONS TO DZNPS’ NOTICE OF 30(B)(6) DEPOSITION
TVA raises for the first time in its response brief to the current motion certain objections
to the areas of examination 4, 5, and 6 identified in DZNPS’ Second Amended 30(b)(6)
Deposition [Doc. 64 at Page ID # 319, ¶ 7]. TVA did not raise its objections to the deposition in
a separate motion. The Court FINDS the objections TVA raised in its responsive pleading to the
contents of the Notice of 30(b)(6) deposition are not properly before the Court, and the Court
DECLINES to address any such objections.
C. RULE 30(B)(6) DEPOSITION
TVA now characterizes DZNPS’ Rule 30(b)(6) deposition as an “out-of-time deposition”
[Doc. 64 at Page ID # 319], as the deadline for discovery was May 5, 2017 and the Agreed Order
extending certain deadlines in the scheduling order did not contain an extension of time in which
to take party depositions [id. at Page ID # 317]. DZNPS, however, first served notice of the Rule
30(b)(6) deposition on TVA in early April, within the discovery period. In that notice, DZNPS
scheduled the deposition for April 25, 2017, still before the discovery deadline. Based on
requests – that DZNPS asserts came from TVA – the parties agreed to postpone the deposition,
first to a later date still within the discovery period and then later to a date after the discovery
deadline but before the dispositive motion deadline. As the date of the deposition approached,
TVA provided that its selected agency representative was unavailable and that it would not
provide an alternative representative. Aside from raising certain issues in its response brief to
the current motion, at no point did TVA file with the Court any objections to the Notice of
30(b)(6) Deposition after being first served with it in April.

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DZNPS takes the position that “an entity the size of TVA should be able to prepare more
than one representative to testify on the fairly general topics listed in the areas of examination on
DZNPS’s latest Rule 30(b)(6) deposition notice.” [Doc. 62 at Page ID # 286]. Pursuant to Rule
37(a)(3)(ii), DZNPS now moves “for an order compelling an answer, designation, [or]
production,” which is available “if . . . a corporation or other entity fails to make a designation
under Rule 30(b)(6).”
The Court finds the parties have conferred in good faith in an attempt to resolve the
current matter without the Court’s intervention. Fed. R. Civ. P. 37(a)(1). To that end, an
agreement appears to have existed between counsel for Defendants that the Rule 30(b)(6)
deposition of a TVA representative would take place after the discovery period. Notably, TVA
still offers to make Mr. Carson available for the continuation of his personal deposition and as
TVA’s designee for 30(b)(6) deposition. Regarding the deposition between the Defendants, the
current dispute appears to primarily concern the date on which the deposition will take place.
TVA is ORDERED to present one or more corporate representatives for a Rule 30(b)(6)
deposition by DZNPS on June 14, 2017. At TVA’s request [Doc. 64 at Page ID # 319, ¶ C], the
parties are ORDERED to also schedule the continuation of Mr. Carson’s personal deposition on
June 14, 2017, if possible. The cost of expediting the transcript of the Rule 30(b)(6) deposition
or obtaining a real-time transcript of the deposition will be shared equally among Defendants
TVA and DZNPS and provided to Plaintiff at no increased cost. To the extent any party wishes
to rely on information from any deposition in any dispositive motion filing, correct citation to the
deposition transcript is required.

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D. EXTENSION OF DISPOSITIVE MOTION DEADLINE
DZNPS also requests an extension of its dispositive motion deadline until June 15, 2017
[Doc. 66 at Page ID # 330]. The scheduling order currently in place sets the dispositive motion
deadline at June 2, 2017 [Doc. 30]. Pursuant to Rule 16(b)(4), a scheduling order “may be
modified only for good cause and with the judge’s consent.”
Plaintiff, whose claims would be the likely target of any dispositive motion by DZNPS,
asserts in his response that DZNPS has not met the good cause standard because any relevant
information to be obtained from the 30(b)(6) deposition has already been provided through other
discovery [Doc. 67]. DZNPS asserts that the deposition of TVA’s corporate representative is
necessary to its contemplated summary judgment motion, such that “[a]ny other result will
unfairly and improperly prejudice DZNPS’s interests and rights” and ability to defend itself in
the litigation. [Doc. 62 at Page ID # 285-86]. It further asserts that, “TVA’s various discovery
delays, while perhaps unavoidable in some instances, effectively precluded DZNPS from
insisting on going forward with the Rule 30(b)(6) deposition of TVA’s corporate representative
any earlier in this case.” [Id. at Page ID # 286]. DZNPS argues it would be “prejudiced by not
being able to complete this important deposition and use the evidence it gathers from it in
support of its Rule 56 motion.” [Id.]
The Court finds DZNPS has established sufficient cause to extend its (and Plaintiff’s)
dispositive motion deadline under the circumstances alleged here. Accordingly, DZNPS’ motion
to extend its dispositive motion deadline to June 15, 2017 [Doc. 61] is GRANTED. In an effort
to reach a just result, Plaintiff, who appears to bear no fault in the creation of the current
situation, shall also be granted an opportunity to file any dispositive motion until June 15, 2017.
All other deadlines set forth in the scheduling order shall remain the same. However,

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Plaintiff and DZNPS are forewarned that if he or it exercises the right to wait until the final day
allowable to file any dispositive motion, June 15, 2017, then that motion likely will not be ruled
upon prior to the final pretrial conference.
III.

CONCLUSION
For the reasons stated above, DZNPS’ motion [Doc. 61] is GRANTED IN PART AND

DENIED IN PART as follows. TVA is ORDERED to present one or more corporate
representatives for a Rule 30(b)(6) deposition on the noticed topics on June 14, 2017. The
dispositive motion deadline for Plaintiff and DZNPS only is extended to June 15, 2017. TVA
SHALL abide by the June 2 deadline.
TVA’s motion [Doc. 68] to withdraw the previously filed attachment [Doc. 64-1] is
GRANTED.
SO ORDERED.
ENTER:

s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

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