Lloyd v. Birkman et al

Filing 87

ORDER DENYING 81 Motion for Discovery Sanctions. Signed by Judge Mark Lane. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ROBERT LLOYD,
Plaintiff,
V.
LISA BIRKMAN, CYNTHIA LONG,
VALERIE COVEY, RON MORRISON,
DAN A. GATTIS, and WILLIAMSON
COUNTY, TEXAS,
Defendants.

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A-13-CV-505-DAE-ML

ORDER SETTING HEARING
On this day the Magistrate Court held a hearing on Plaintiff Robert Lloyd’s Motion for
Discovery Sanctions Against Defendant Williamson County, filed November 2, 2015 [Dkt. #81]
Defendant Dan A. Gattis’ Response to Plaintiff’s Motion for Discovery Sanctions Against
Defendant Williamson County, filed November 6, 2015 [Dkt. #82], Defendants Lisa Birkman,
Valerie Covey, Cynthia Long, Ron Morrison, and Williamson County, Texas’ Response in
Opposition to Motion, filed November 9, 2015 [Dkt. #83], and Plaintiff’s Reply, filed November
12, 2015 [Dkt. #85]. The parties appeared through counsel. After considering the briefing and
exhibits, the arguments of counsel, and the case file as a whole, the Magistrate Court finds the
motion for discovery sanctions should be DENIED.
The original pretrial scheduling order set a July 18, 2014 discovery deadline in this case
that has not been modified by subsequent events. Sched. Ord. [Dkt. #7]. That scheduling order
further provides “Counsel may, by agreement, continue discovery beyond the deadline, but there
will be no intervention by the Court except in extraordinary cirumstances.” Id. Plaintiff has not
identified either an enforceable agreement to continue discovery into November of 2015, or any
extraordinary circumstances justifying reopening discovery at this late date.

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Plaintiff nevertheless asserts the depositions of two witnesses, Peggy Vasquez and Kevin
Stofle, should be ordered and sanctions imposed based Defendants’ failure to produce these
witnesses in response to deposition notices issued in July of 2014. Plaintiff concedes, however,
that the parties agreed not to proceed with the noticed depositions, and discussed resetting
Vasquez and Stofle’s depositions at some unspecified future date. See Gattis Resp.[Dkt. #82],
Ex. 1. At the hearing, Plaintiff acknowledged the parties were able to agree on dates outside the
official discovery period to take several depositions of other witnesses, but no specific dates
were agreed for the depositions of either of these two witnesses. In fact, after agreeing not to
proceed with the noticed depositions, Plaintiff did not ask for any specific dates to depose these
two witnesses until well into 2015, after Judge Ezra’s order on the parties cross-motions for
summary judgment issued.
This record provides no basis for discovery sanctions. At best, it establishes the parties
agreed not to proceed on the deposition notices on which Plaintiff now bases his request for
sanctions. Though Plaintiff and the Defendants may have reached agreements to reschedule the
depositions of other witnesses outside the official discovery period, nothing in this record
establishes any firm agreement on a date to go forward with the depositions of Vasquez or
Stofle. As noted in the original scheduling order, only the agreement of the parties or some
extraordinary circumstance will warrant court intervention to order depositions after the
discovery deadline.
There are no such extraordinary circumstances in this case. Counsel knew the identity of
the witnesses sought to be deposed and their knowledge of relevant facts during the scheduled
discovery period. Summary judgment motions have already been filed in this matter—without
the benefit of the testimony now sought.
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Trial is set for February, 2016. Ordering additional depositions of County personnel
now, only weeks before the trial, would pose an unreasonable burden on the Defendants. There
is no justification for reopening discovery at this late date.
Therefore, it is ORDERED that Plaintiff Robert Lloyd’s Motion for Discovery Sanctions
Against Defendant Williamson County, filed November 2, 2015 [Dkt. #81] is DENIED.

SIGNED November 12, 2015
_______________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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