Azar & Associates, P.C. v. Bryant et al
Filing
270
MEMORANDUM OPINION AND ORDER granting in part and denying in part 253 MOTION to Extend Discovery Deadline to Conduct Depositions of Franklin Azar, Individually and as the Corporate Representative of Franklin D. Azar and Associates, P.C., and Lauren McNeil, Individually and as the Corporate Representative of McNeil Consultants LLC. Signed by Magistrate Judge Kimberly C Priest Johnson on 5/31/2019. (rpc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
FRANKLIN D. AZAR &
ASSOCIATES, P.C.,
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§ Civil Action No.: 4:17-cv-00418-ALM-KPJ
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Plaintiff,
v.
JERRY L. BRYANT, ET AL.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is the Motion to Extend Discovery Deadline to Conduct
Depositions of Franklin Azar, Individually and as the Corporate Representative of Franklin D.
Azar and Associates, P.C., and Lauren McNeil, Individually and as the Corporate Representative
of McNeil Consultants LLC (the “Motion”), filed by Defendants Coety L. Bryant, Deanna Bryant,
Exclusive Legal Marketing, Inc. (collectively, the “Bryant Defendants”) (Dkt. 253). In the Motion,
the Bryant Defendants request extension of the discovery deadline to May 31, 2019, for the sole
purpose of conducting the noticed depositions of Franklin D. Azar (“Azar”) and Lauren von
Atkinson McNeil (“Lauren McNeil”), in their individual and corporate representative capacities.
See Dkt. 253.
I. BACKGROUND
The Bryant Defendants argue the discovery deadline should be extended because their
counsel suffered an injury and was unable to attend Azar’s deposition in Denver, and because
Lauren McNeil’s deposition “did not take place in part because of scheduling issues and apparently
because of a settlement entered into between the Plaintiff and the McNeil Defendants.” See Dkt.
253 at 2–5. The Motion is opposed by Plaintiff Azar & Associates, P.C. (“Plaintiff”) and
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Defendants Daniel McNeil and Lauren Von Atkinson McNeil (the “McNeil Defendants”). See
Dkts. 254, 256.
This suit was filed on June 14, 2017. See Dkt. 1. The discovery deadline in this case ended
on April 30, 2019. See Dkt. 253 at 1; Dkt. 147. The Motion was filed on April 30, 2019, seeking
an additional thirty-one-day extension of the discovery deadline. See Dkt. 253. There are three
fully briefed Motions for Summary Judgment pending in this case. See Dkts. 184, 186, 217. This
matter is set for mediation on June 24, 2019, and a pretrial conference on August 2, 2019. See
Dkts. 147, 261, 262.
The deposition of Azar was scheduled and completed in Denver, Colorado, on April 24,
2019. See Dkt. 253 at 3. Lauren McNeil’s deposition was noticed for April 11, 2019. Lauren
McNeil’s deposition was later cancelled. See Dkt. 253 at 2. No party noticed a new deposition
date for Lauren McNeil; however, on April 26, 2019, the Bryant Defendants emailed the
McNeil Defendants regarding scheduling her deposition. See Dkt. 256 at 2. To date, Lauren
McNeil’s deposition has not been taken.
II. ANALYSIS
In Charles v. Wade, 665 F.2d 661, 665–65 (5th Cir. Unit B 1982), the Fifth Circuit held
that a party in a civil case must be allowed to take a witness’s deposition to preserve the witness’s
testimony for trial—even past the discovery deadline—as long as the deposition does not unfairly
prejudice the opposing side. See also E.E.O.C. v. Big Lots Stores, Inc., 2009 WL 3617603, at *2
(E.D. Tex. Oct. 29, 2009) (collecting factors to consider in determining whether a late deposition
to preserve testimony for trial should be allowed); Franklin Bank, SSL v. St. Paul Mercury Ins.
Co., 2008 WL 11389636, at *2 (S.D. Tex. Sep. 24, 2008) (analyzing the Fifth Circuit’s holding in
Charles).
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In this case, the extension of the deposition deadline sought is seeking the deposition of
witnesses for trial. The dispositive motion deadline has passed and the summary judgment motions
are briefed. See, for example, Dkts. 184, 186, 217. Accordingly, Rule 16(b)(4) is not implicated
and the Bryant Defendants need not show good cause.
Considering the factors set forth in Big Lots Stores, the Court finds that the testimony of
Azar and Lauren McNeil is integral to the presentation of the Bryant Defendants’ case and warrants
extension of the deposition deadline. For example, Lauren McNeil has completed a declaration
in this case and, given Lauren McNeil’s settlement with Azar,1 the Bryant Defendants may
be otherwise unable to obtain or present the desired evidence absent additional depositions. See
Dkt. 253 at 2. Moreover, in reviewing the filings, the Court finds that no prejudice will result to
either Azar or Lauren McNeil by allowing the Bryant Defendants to depose them.
Upon consideration, the Court finds the Bryant Defendants shall be allowed to take the
depositions of Azar and Lauren McNeil. Accordingly, the Motion (Dkt. 253) is hereby
GRANTED IN PART and DENIED IN PART. The Bryant Defendants shall be permitted to
take the depositions of Azar and Lauren McNeil subject to the limitations listed below.
It is hereby ORDERED that the depositions of Azar and Lauren McNeil shall be conducted
after the parties’ mediation, scheduled on June 24, 2019, and before the parties’ Pretrial
Conference, scheduled on August 2, 2019. See Dkts. 147, 261, 262.
Finally, it is hereby ORDERED that the depositions of Azar and Lauren McNeil shall be
scheduled at a location convenient to Azar and Lauren McNeil and that the Bryant Defendants
shall be responsible for any additional costs incurred in taking the depositions.
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To date, Azar and Lauren McNeil have not filed a stipulated dismissal. However, in the Agreed Motion to Dismiss
Plaintiff’s Claims Against Defendant McNeil Consultants, LLC, Plaintiff asserts that a settlement has been reached
with Defendants Lauren Von Atkinson McNeil, Daniel McNeil, and the McNeil Consultants. See Dkt. 226.
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IT IS SO ORDERED.
SIGNED this 31st day of May, 2019.
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KIMBERLY C. PRIEST JOHNSON
UNITED STATES MAGISTRATE JUDGE
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