Bannick v. Kennecott Utah Copper Mine et al
MEMORANDUM DECISION AND ORDER granting in part and denying in part 15 Motion for Extension of Time. Signed by Magistrate Judge Paul M. Warner on 5/6/14 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
Case No. 2:13-cv-370-TC-PMW
KENNECOTT UTAH COPPER MINE,
LLC, dba KENNECOTT COPPER, LLC;
District Judge Tena Campbell
Magistrate Judge Paul M. Warner
District Judge Tena Campbell referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A). 1 Before the court is Jennifer Bannick’s (“Plaintiff”)
motion to extend discovery. 2 The court has carefully reviewed the written memoranda submitted
by the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the United States District
Court for the District of Utah, the court has concluded that oral argument is not necessary and
will determine the motion on the basis of the written memoranda. See DUCivR 7-1(f).
In her motion, Plaintiff requests two forms of relief. In the first portion of her motion,
Plaintiff moves the court for a sixty-day extension of the May 1, 2014 fact discovery deadline set
forth in the current scheduling order in this case. 3 Defendant Kennecott Copper, LLC
See docket no. 12.
See docket no. 15.
See docket no. 10.
(“Defendant”) does not oppose that requested extension. 4 Accordingly, the first portion of
Plaintiff’s motion is GRANTED. The fact discovery deadline in this case is hereby extended by
In the second portion of her motion, Plaintiff moves the court for permission to take
additional depositions. Under the current scheduling order, Plaintiff is permitted to take ten
depositions. 5 Plaintiff seeks to alter the scheduling order so that she can take additional
depositions beyond that limit.
Pursuant to rule 16(b)(4) of the Federal Rules of Civil Procedure, a scheduling order
“may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
The scheduling order in this case employs the limit of ten depositions set forth in rule
30(a)(2)(A)(i) of the Federal Rules of Civil Procedure. 6 See Fed. R. Civ. P. 30(a)(2)(A)(i).
Pursuant to that rule, “[a] party must obtain leave of court, and the court must grant leave to the
extent consistent with Rule 26(b)(2) [of the Federal Rules of Civil Procedure] . . . if the parties
have not stipulated to the deposition and . . . the deposition would result in more than 10
depositions being taken under this rule.” Id. Rule 26(b)(2) provides that “[b]y order, the court
may alter the limits in these rules on the number of depositions and interrogatories or on the
length of depositions under Rule 30.”
Although it specifically seeks to modify the scheduling order, this portion of Plaintiff’s
motion concerns discovery. “The district court has broad discretion over the control of
See docket no. 17.
See docket no. 10.
discovery, and [the Tenth Circuit] will not set aside discovery rulings absent an abuse of that
discretion.” Sec. & Exch. Comm’n v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271 (10th
Cir. 2010) (quotations and citations omitted). The general scope of discovery is governed by rule
26(b)(1) of the Federal Rules of Civil Procedure, which provides that “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense. . . .
For good cause, the court may order discovery of any matter relevant to the subject matter
involved in the action. Relevant information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P.
26(b)(1). The Advisory Committee Notes for the 2000 Amendments to rule 26 direct parties and
courts to “focus on the actual claims and defenses involved in the action” in determining
relevance for purposes of discovery. Fed. R. Civ. P. 26 Advisory Committee Notes, 2000
Amendments, Subdivision (b)(1). With respect to limiting discovery, rule 26(b)(2)(C)(iii)
[o]n motion or on its own, the court must limit the frequency or
extent of discovery otherwise allowed by these rules or by local
rule if it determines that . . . the burden or expense of the proposed
discovery outweighs its likely benefit, considering the needs of the
case, the amount in controversy, the parties’ resources, the
importance of the issues at stake in the action, and the importance
of the discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C)(iii).
In her relatively short motion, Plaintiff argues that she believes that the additional
depositions she seeks to take will reveal information that is critical and favorable to her claims.
Plaintiff also contends that many of the additional deponents may be unavailable at a later date.
Finally, Plaintiff asserts that all of the additional depositions she seeks to take, with one
exception, should last only thirty minutes to one hour each, which she contends will reduce the
burden placed on Defendant as a result of the additional depositions.
For the following reasons, the court concludes that Plaintiff has not established good
cause for altering the limit of ten depositions in the current scheduling order. First, Plaintiff has
not made an adequate showing as to why the additional depositions are necessary in this case.
Defendant correctly notes that Plaintiff has not specifically explained the expected nature of the
additional deponents’ testimony or provided a sufficient explanation of how their testimony
would be relevant to the claims and defenses at issue in this case. See Fed. R. Civ. P. 26(b)(1);
see also Fed. R. Civ. P. 26 Advisory Committee Notes, 2000 Amendments, Subdivision (b)(1).
Second, the court concludes that Plaintiff’s contention that the additional deponents may
be unavailable is speculative in nature. Indeed, Plaintiff has not provided any specific
information to support her concerns about unavailability. Instead, Plaintiff surmises that the
nature of Defendant’s business may render some of the deponents unavailable at a later date and
makes the conclusory statement that, given the nature of this case, “witness availability is always
at issue.” 7 The court is not persuaded by those arguments.
Finally, the court has determined that “the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake in the action, and the importance of the
discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C)(iii). In the court’s view, this case
is not complex enough to justify the number of additional depositions sought by Plaintiff.
Further, even if the court assumes that all but one of the additional depositions will last only
Docket no. 23 at 4.
thirty minutes to one hour each, which Plaintiff has not conclusively established, Defendant will
still be required to incur the significant expense of having its counsel prepare for and attend each
of the additional depositions. The court concludes that said burden outweighs the likely benefit
of the additional depositions. Plaintiff is still free to interview any of the additional deponents.
Such a process is surprisingly simple, cost-effective, and done routinely. Further, interviews do
not require court approval or Defendant’s participation.
For these reasons, the second portion of Plaintiff’s motion is DENIED. Plaintiff will not
be allowed to take any depositions beyond the limit of ten contained in the current scheduling
Based on the foregoing, Plaintiff’s motion to extend discovery8 is GRANTED IN PART
AND DENIED IN PART.
IT IS SO ORDERED.
DATED this 6th day of May, 2014.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
See docket no. 15.
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