Applied Underwriters, Inc. v. American Employer Group, Inc. (PLR2)

Filing 37

MEMORANDUM AND ORDER; the Court finds the Defendant's Motion for Leave to File Under Seal 33 is HELD IN ABEYANCE, and the Court GRANTS in part, and DENIES in part, the Defendant's Motion to Amend Schedule 32 as set forth. The Defendant's request to continue the trial is DENIED and filing deadlines are noted. Signed by Magistrate Judge C Clifford Shirley, Jr on 2/2/16. (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
APPLIED UNDERWRITERS, INC.,
Plaintiff,
v.
AMERICAN EMPLOYER GROUP,
Defendant.

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No. 3:14-cv-379
(REEVES/SHIRLEY)

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636(c), the Rules of this
Court, and Standing Order 13-02.
Now before the Court is the Defendant’s Motion to Amend Schedule [Doc. 32] and
Defendant’s Motion for Leave to File Under Seal [Doc. 33]. The Plaintiff filed a Response to the
Motion to Amend Schedule [Doc. 35]. The parties appeared before the Court for a scheduled
telephonic conference with respect to discovery disputes on January 29, 2016, wherein the Court
also addressed the Defendant’s motions. Attorney Edward Linquist, Jr., appeared on behalf of
the Plaintiff, and Attorneys John Winemiller, Ian McFarland, and R. Bradford Brittian appeared
on behalf of the Defendant. After hearing from both parties, the Court GRANTS in part, and
DENIES in part, the Defendant’s Motion to Amend Schedule [Doc. 32], and the Defendant’s
Motion for Leave to File Under Seal [Doc. 33] is HELD IN ABEYANCE.
I.

POSITIONS OF THE PARTIES
The Defendant’s Motion [Doc. 32] states that the Plaintiff failed to participate in

meaningful discovery. Specifically, the Defendant avers that the Plaintiff has not produced email

messages, failed to provide a designee able to testify about duly identified topics, and submitted
demonstrably inaccurate interrogatory answers. The Defendant requests that the Court amend its
Scheduling Order to extend all dates in this matter, including the trial date. In the alternative, the
Defendant requests that the Court suspend all activity in this case until the Plaintiff has complied
with its discovery obligations and order the Plaintiff to show cause as to why the action should
not be dismissed for lack of prosecution.
With respect to its Motion for Leave to File Under Seal [Doc. 33], the Defendant asserts
that the parties submitted a Protective Order in this case that provided the opportunity to
preliminary designate all deposition testimony as HIGHLY CONFIDENTIAL-ATTORNEY’S
EYES ONLY for a period of fifteen (15) days following the receipt of transcripts. The Defendant
avers that it submitted a Memorandum in Support of Motion to Amend Schedule [Doc. 34] that
cited testimony that is still subject to the preliminary HIGHLY CONFIDENTIALATTORNEY’S EYES ONLY designation.
The Plaintiff filed a Response to Defendant’s Motion to Amend Schedule [Doc. 35]
stating that neither party has been exemplary in discovery responsiveness. The Plaintiff submits,
however, that it welcomes suggestions from Defendant as to the proposed changes to which it
will likely agree.
II.

ANALYSIS
As mentioned above, the Court scheduled a telephonic conference to discuss discovery

issues on January 29, 2016, wherein the Court also addressed the pending motions [Docs. 32,
33]. With respect to the Defendant’s Motion to Amend [Doc. 32], the parties agreed to work
together to complete ESI searches, including the parameters of the searches. The Plaintiff stated
that any remaining documents discovered by ESI searches will be produced by February 12,

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2016. The Plaintiff also agreed that it would provide the Defendant with supplemental discovery
answers within thirty (30) days of the hearing.

The parties agreed that should they need

additional depositions of any Rule 30(b)(6) witnesses, they will file formal requests. In addition,
the parties agreed to work together to reschedule any remaining depositions that need to be
taken.
Because the parties have not completed discovery but are working together to do so, the
Court GRANTED the Defendant’s request to extend the dispositive motion deadline. The parties
shall have until April 1, 2016, to file dispositive motions. Responses to any dispositive motions
shall be due on or before April 22, 2016, and reply briefs shall be due on or before April 29,
2016. The Court DENIED the Defendant’s request to continue the trial, but the Court may
revisit the issue should a continuance be warranted.
At the conclusion of the hearing, the Defendant requested that the Plaintiff pay for the
costs of retaking depositions. Because it is unclear at this time as to whether any depositions
need to be retaken, the Court finds this request premature, with leave to file a motion requesting
such costs on a later date.1
Finally, the Defendant stated that the Court’s rulings on the Motion to Amend [Doc. 32]
mooted its Motion for Leave to File Under Seal [Doc. 33]. The issue of mootness was then
discussed, but it appears to the Court that several of the exhibits, entries, and texts that were filed
under seal might be deemed confidential information and subject to protection. The parties are
ADMONISHED to work together to review the proposed sealed filings and redact, or seal
portions of or pages of, and submit a new proposed agreed order with respect to what should be
filed under protection. Accordingly, the Motion for Leave to File Under Seal [Doc. 33] is HELD
IN ABEYANCE until the parties submit the proposed agreed order.
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The Court does not opine on the merits of the Defendant’s claim for deposition costs.
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III.

CONCLUSION
Accordingly, the Court finds the Defendant’s Motion for Leave to File Under Seal [Doc.

33] is HELD IN ABEYANCE, and the Court GRANTS in part, and DENIES in part, the
Defendant’s Motion to Amend Schedule [Doc. 32] as follows:
1. The Plaintiff shall provide remaining ESI discovery to the
Defendant on or before February 12, 2016;
2. The Plaintiff shall provide supplemental discovery answers
within thirty (30) days of the hearing or by February 28, 2016;
3. The deadline to file dispositive motions shall be April 1, 2016;
4. Responses to dispositive motions shall be due on or before
April 22, 2016, and reply briefs due on or before April 29,
2016;
5. The Defendant’s request to continue the trial is DENIED;
6. The Court DENIES the Defendant’s request for the costs of
retaking depositions, with leave to file a motion requesting
such costs on a later date;
7. The Defendant’s request to suspend activity in this case until
the Plaintiff complies with its discovery obligations is
DENIED as MOOT; and
8. The Defendant’s request to order the Plaintiff to show cause as
to why this matter should not be dismissed for failure to
prosecute is DENIED as MOOT.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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