King v. Cellco Partnership

Filing 115

MEMORANDUM DECISION AND ORDER denying 61 Motion to Amend/Correct; granting 65 Motion to Quash; denying 86 Motion to Compel; denying 86 Motion for Amended Scheduling Order. Signed by Magistrate Judge Jared C. Bennett on 9/16/2022. (alf)

Case 2:20-cv-00775-JNP-JCB Document 115 Filed 09/16/22 PageID.2368 Page 1 of 22

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
TRACIE KING,
Plaintiff,
v.

MEMORANDUM DECISION
AND ORDER
Case No. 2:20-cv-00775-JNP-JCB

CELLCO PARTNERSHIP dba VERIZON
WIRELESS,
Defendant.

District Judge Jill N. Parrish
Magistrate Judge Jared C. Bennett

District Judge Jill N. Parrish referred this case to Magistrate Judge Jared C. Bennett under
28 U.S.C. § 636(b)(1)(A). 1 Before the court are: (1) Plaintiff Tracie King’s (“Ms. King”) motion
to compel discovery responses from Defendant Cellco Partnership dba Verizon Wireless
(“Verizon”) and to reopen discovery to allow Ms. King to depose Sarah Lofgren (“Ms.
Lofgren”), conduct a Fed. R. Civ. P. 30(b)(6) deposition of Verizon, and serve a subpoena
(“Subpoena”) on Sedgwick Claims Management Services (“SCMS”); 2 (2) Ms. King’s motion to
reopen discovery to allow her to depose Brian Cervinski (“Mr. Cervinski”); 3 and (3) Verizon’s
short form motion to quash the Subpoena. 4 The court held oral argument on the motions and, at
the conclusion of the hearing, took the motions under advisement. 5 Having carefully considered
1

ECF No. 8.

2

ECF No. 86.

3

ECF No. 61.

4

ECF No. 65.

5

ECF No. 100.

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the parties’ written memoranda and counsel’s oral arguments, the court issues the instant
Memorandum Decision and Order on the motions. Based upon the analysis set forth below, the
court denies both of Ms. King’s motions and grants Verizon’s short form motion to quash the
Subpoena.
BACKGROUND
Ms. King initiated this case against Verizon on November 3, 2020, alleging causes of
action under Title VII for racial discrimination, hostile work environment, and retaliation. 6 The
court entered the initial scheduling order on January 14, 2021. 7 On June 21, 2021, the parties
filed a stipulated motion to stay this case due to Ms. King’s health. 8 The court granted that
motion on June 23, 2021, stayed this case until September 21, 2021, and ordered the parties to
submit a proposed scheduling order by October 5, 2021. 9
As ordered, the parties filed a stipulated motion for entry of an amended scheduling order
on October 5, 2021. 10 The following day, the court entered the operative scheduling order
governing fact discovery and dispositive motions, which set the last day to serve written
discovery for January 31, 2022, the close of fact discovery for February 28, 2022, and the
deadline for dispositive motions for April 15, 2022. 11

6

ECF No. 2.

7

ECF No. 14.

8

ECF No. 23.

9

ECF No. 24.

10

ECF No. 25.

11

ECF No. 26.
2

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The day before the dispositive motion deadline, Ms. King filed her motion to reopen
discovery to allow her to depose Mr. Cervinski. 12 On the dispositive motion deadline, Verizon
filed its short form motion to quash the Subpoena 13 and a motion for summary judgment. 14 On
May 6, 2022, Ms. King filed her motion to compel discovery responses from Verizon and to
reopen discovery to allow her to depose Ms. Lofgren, conduct a Rule 30(b)(6) deposition of
Verizon, and serve the Subpoena on SCMS. 15 Finally, on May 27, 2022, Ms. King filed a motion
for additional discovery under Fed. R. Civ. P. 56(d), 16 which is currently pending before Judge
Parrish.
Based upon the following analysis, the court: (I) denies Ms. King’s motions seeking to
compel discovery responses from Verizon and to reopen discovery for certain purposes, and
(II) grants Verizon’s short form motion to quash the Subpoena. The court does not address the
Rule 56(d) motion before Judge Parrish.
ANALYSIS
I.

Ms. King’s Motions Are Denied.
Ms. King’s motions contain two main requests for relief. First, Ms. King seeks an order

compelling Verizon to further respond to certain discovery requests. Second, Ms. King seeks to
reopen discovery for certain purposes. For the reasons set forth below, the court denies both of
Ms. King’s requests and, consequently, denies her motions.
12

ECF No. 61.

13

ECF No. 65.

14

ECF No. 66.

15

ECF No. 86.

16

ECF No. 103.
3

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A.

Ms. King’s Request for an Order Compelling Verizon to Further Respond to
Certain of Her Discovery Requests Is Denied.

Ms. King seeks an order compelling Verizon to provide further responses to: (1) Request
for Production (“RFP”) No. 13; and (2) Interrogatory No. 23 and RFP Nos. 24-25. The court
addresses each category of discovery requests below and concludes that Verizon is not required
to provide additional responses to either category.
1.

RFP No. 13

Verizon is not required to provide a further response to RFP No. 13 because Ms. King did
not timely seek court intervention to resolve the parties’ dispute over RFP No. 13. Ms. King
served RFP No. 13 on Verizon on March 17, 2021, 17 and Verizon provided its initial response to
RFP No. 13 on May 7, 2021. 18 Taking into account the three-month stay of this case, Ms. King
waited nearly nine months from the time of Verizon’s original response to move to compel
Verizon to provide a further response to RFP No. 13, despite Verizon’s indication on several
occasions that it did not have any documents responsive to RFP No. 13. 19 Additionally, Ms.
King’s motion was filed over two months after the close of fact discovery. Those delays in
seeking court intervention doom Ms. King’s request to compel Verizon to provide a further
response to RFP No. 13. 20
17

ECF No. 86-1 at 9-10 of 25.

18

ECF No. 86-4 at 17-19 of 35.

19

See, e.g., ECF Nos. 86-3, 96-3, 96-4.

20

Chrisman v. Bd. of Cnty. Comm’rs of Okla. Cnty., No. CIV-17-1309-D, 2020 WL 7033965, at
*5 (W.D. Okla. Nov. 30, 2020) (denying the plaintiff’s motion to compel where the plaintiff
received the defendants’ responses and objections to discovery requests approximately four and a
half months before moving to compel and stating that “[a]lthough Rule 37 does not specify a
time limit, a party seeking to compel discovery must do so in a timely manner”); Kindig-It
Design, Inc. v. Creative Controls, Inc., No. 2:14-cv-00867-JNP-BCW, 2017 WL 11476473, at *1
4

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Ms. King attempts to justify the delay in bringing her motion by arguing that she was
attempting to resolve the parties’ dispute over RFP No. 13 during the entire period of the delay
and brought her motion soon after Verizon sent an April 1, 2022 letter indicating that it would not
be producing documents responsive to RFP No. 13. 21 Ms. King also contends that she learned for
the first time during certain depositions in late-February 2022 that documents in Verizon’s
possession may exist that would be responsive to RFP No. 13. Ms. King’s first argument fails
because Verizon repeatedly indicated that it was not supplementing its response to RFP No. 13.
The first of those indications was a November 22, 2021 letter 22—which pre-dated Ms. King’s
motion to compel by approximately 5 months—and the April 1, 2022 letter merely repeated
Verizon’s previously stated position in the November 22, 2021 letter and a January 24, 2022

(D. Utah Apr. 21, 2017) (“The filing of a motion to compel a month after the close of discovery
was undoubtedly untimely.”); Johnson v. Sector 10, No. 2:10-CV-00092-DAK, 2013 WL
4456636, at *2 (D. Utah Aug. 16, 2013) (“While the Federal Rules of Civil Procedure do not set
a deadline for . . . motions to compel, district courts retain the discretion to decide whether a
motion to compel ‘is too tardy to be considered.’” (quoting Centennial Archaeology, Inc. v.
AECOM, Inc., 688 F.3d 673, 682 (10th Cir. 2012))); Nw. Territory Ltd. P’ship v. Omni Props.,
Inc., No. CIVA 05-cv-02407-MJW-PAC, 2006 WL 3618215, at *1 (D. Colo. Dec. 11, 2006)
(“The Federal Rules of Civil Procedure do not provide any deadline for filing a motion to
compel. However, courts generally look to the discovery deadline date in considering whether a
motion to compel is timely.”); Cont’l Indus., Inc. v. Integrated Logistics Sols., LLC, 211 F.R.D.
442, 444 (N.D. Okla. 2002) (“Although Fed. R. Civ. P. 37 does not specify any time limit within
which a Motion to Compel must be brought, courts have made it clear that a party seeking to
compel discovery must do so in timely fashion. Once, as here, a party registers a timely objection
to requested production, the initiative rests with the party seeking production to move for an
order compelling it. Failure to pursue a discovery remedy in timely fashion may constitute a
waiver of discovery violations.” (citations omitted)); Buttler v. Benson, 193 F.R.D. 664, 666 (D.
Colo. 2000) (concluding that “[a] party cannot ignore available discovery remedies for months”).
21

ECF No. 86-3.

22

ECF No. 96-3.
5

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letter 23 that it did not have documents responsive to RFP No. 13. In the court’s view, it was
incumbent upon Ms. King to seek court intervention much sooner than she did, and certainly
prior to the February 28, 2022 fact discovery deadline.
Ms. King’s second argument also fails because even if the court accepts as true the fact
that she learned information during depositions in late-February 2022 showing that Verizon may
have documents responsive to RFP No. 13, she waited over two months after learning that
information to file her motion to compel. Again, that delay is incompatible with seeking timely
court assistance to resolve a discovery dispute. In sum, Ms. King simply waited too long to seek
court intervention to resolve the parties’ dispute over RFP No. 13. Therefore, the court denies
Ms. King’s request to order Verizon to provide an additional response to RFP No. 13.
2.

Interrogatory No. 23 and RFP Nos. 24-25

Through Interrogatory No. 23 and RFP Nos. 24-25, Ms. King seeks information
regarding disparate treatment and, by way of her instant motion, seeks an order compelling
Verizon to further respond to those discovery requests. Under Fed. R. Civ. P. 26(b)(1), “[p]arties
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 certain factors. Notwithstanding
its original objections to Interrogatory No. 23 and RFP Nos. 24-25 on the grounds of
proportionality, Verizon conceded at oral argument that proportionality was not an issue and
focused exclusively on the issue of relevance. Therefore, the court focuses on relevance here.

23

ECF No. 96-4.
6

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The parties agree that Ms. King’s Title VII claims for retaliation and racial discrimination
are governed by the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green. 24
Under that framework, once the plaintiff has established a prima facie case of retaliation or
discrimination, and the defendant has articulated a legitimate, nonretaliatory or
nondiscriminatory reason for taking the adverse employment action, the burden then falls again
on the plaintiff to show that the defendant’s explanation is pretextual. 25 One of the ways a
plaintiff can show pretext is on a theory of disparate treatment by showing that she was treated
differently than other similarly situated employees. 26
To be similarly situated for purposes of establishing pretext, the United States Court of
Appeals for the Tenth Circuit has instructed that the individuals being compared must be
“similarly situated . . . in all relevant respects.” 27 “Similarly situated employees are those who
deal with the same supervisor and are subject to the same standards governing performance
evaluation and discipline.” 28 “In determining whether two employees are similarly situated, a
‘court should also compare the relevant employment circumstances, such as work history and
company policies, applicable to the plaintiff and the intended comparable employees.’” 29

24

411 U.S. 792, 802-04 (1973).

25

Id.; see also McGowan v. City of Eufala, 472 F.3d 736, 741 (10th Cir. 2006) (addressing Title
VII retaliation claim); Aramburu v. Boeing Co., 112 F.3d 1398, 1403 (10th Cir. 1997) (addressing
Title VII discrimination claim).
26

McGowan, 472 F.3d at 745; Aramburu, 112 F.3d at 1404.

27

McGowan, 472 F.3d at 745.

28

Aramburu, 112 F.3d at 1404 (quotations and citations omitted).

29

McGowan, 472 F.3d at 745 (quoting Aramburu, 112 F.3d at 1404).
7

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“[E]ven employees who are similarly situated must have been disciplined for conduct of
‘comparable seriousness’ in order for their disparate treatment to be relevant.” 30
Under those principles, Ms. King must demonstrate that Interrogatory No. 23 and RFP
Nos. 24-25 are seeking information about similarly situated employees for that information to be
relevant to the claims and defenses in this case and, therefore, discoverable. As shown below,
Ms. King cannot show that she is requesting comparator information from similarly situated
employees. 31
Interrogatory No. 23 and RFP No. 24 seek to discover information about employees
supervised by Ms. King’s immediate supervisor, Rodrigo Dos Santos (“Mr. Dos Santos”).
Interrogatory No. 23 provides: “Please identify all employees managed by [Mr.] Dos Santos
from 2014-2018, including each employee’s race, dates during which the employee reports to
Mr. Dos Santos, and any discipline the employee received from 2014-2018.” 32 Verizon objected
to Interrogatory No. 23 as being overly broad, being unduly burdensome, and seeking

30

Id. (quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000)).

31

Verizon argues that Ms. King’s motion must be denied as to Interrogatory No. 23 and RFP
Nos. 24-25 because she did not send a prompt written communication to Verizon concerning the
parties’ dispute over those discovery requests. The version of DUCivR 37-1 that was in effect
when the parties’ discovery disputes arose provided, in relevant part, that “[t]he parties must
make reasonable efforts without court assistance to resolve a dispute arising under Fed. R. Civ. P.
26-37 and 45. At a minimum, those efforts must include a prompt written communication sent to
the opposing party . . . .” DUCivR 37-1(a)(1) (effective Dec. 1, 2020). Ms. King’s April 20, 2022
letter was her first written communication to Verizon concerning Interrogatory No. 23 and RFP
Nos. 24-25 and was sent 51 days after Verizon’s February 28, 2022 responses to those discovery
requests. ECF No. 86-4 at 32-34 of 35; ECF No. 86-11. The court need not determine whether
that letter was a prompt written communication because Ms. King’s requests for an order
compelling Verizon to provide further responses to Interrogatory No. 23 and RFP Nos. 24-25 fail
on their merits as demonstrated below.
32

ECF No. 86-1 at 23 of 25.
8

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information that is not relevant and disproportional to the needs of the case. 33 More specifically,
Verizon objected to Interrogatory No. 23 as seeking information “not targeted to comparators
relevant to [Ms. King]’s claims asserted in this case as it seeks information regarding all
individuals that reported to a single supervisor over a 4-year period, including time during which
[Ms. King] was not employed.” 34 Subject to those objections, Verizon produced the names of
twelve individuals who reported to Mr. Dos Santos during the time when Ms. King reported to
him. 35
RFP No. 24 provides: “Please provide all discipline documents for individuals listed in
Verizon’s response to Interrogatory No. 23.” 36 Verizon objected to RFP No. 24 on the same bases
it objected to Interrogatory No. 23. 37 Accordingly, Verizon declined to respond to RFP No. 24. 38
RFP No. 25 seeks information about two employees who Ms. King believes may have
committed similar violations of Verizon policies to those allegedly committed by Ms. King. RFP
No. 25 provides: “Please provide all discipline documents received by employees Mikell Brown
and Keri Berg.” 39 Verizon objected to RFP No. 25 as being overly broad, being unduly
burdensome, and seeking information that is not relevant and disproportional to the needs of the

33

ECF No. 86-4 at 32 of 35.

34

Id.

35

Id.

36

ECF No. 86-1 at 24 of 25. Although RFP No. 24 is entitled, “Request No. 17,” Ms. King’s
counsel indicated at oral argument that it was intended to be RFP No. 24.
37

ECF No. 86-4 at 33 of 35.

38

Id.

39

ECF No. 86-1 at 24 of 25. Although RFP No. 25 is entitled, “Request No. 18,” Ms. King’s
counsel indicated at oral argument that it was intended to be RFP No. 25.
9

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case. 40 More specifically, Verizon objected to RFP No. 25 because “the discipline records for the
identified individuals do not make it more or less likely that Verizon discriminated against [Ms.
King] (or otherwise retaliated against her) on the basis of her race as alleged in the Complaint in
this case.” 41
In support of her contention that Verizon should be required to provide additional
responses to Interrogatory No. 23 and RFP Nos. 24-25, Ms. King generally argues that those
discovery requests seek information about employees similarly situated to her. However, when
the court questioned Ms. King about that issue at oral argument, Ms. King identified only two
specific bases to support her general argument—namely, that the discovery requests seek
information about employees who had the same supervisor as Ms. King and were terminated in
temporal proximity to Ms. King. Importantly, Ms. King fails to show that the discovery requests
at issue were limited in any other fashion to ensure that they sought information for only
similarly situated employees. Specifically, Ms. King fails to demonstrate that the employees for
whom she seeks discipline information were subject to the same standards governing
performance evaluation and discipline as Ms. King, had similar work histories to Ms. King, had
the same company policies applied to them that Ms. King did, or were disciplined for conduct of
comparable seriousness to Ms. King’s conduct. 42 Indeed, other than the two limitations that Ms.
King identified, the discovery requests seek “any discipline” information 43 and “all discipline

40

ECF No. 86-4 at 33-34 of 35.

41

Id. at 34 of 35.

42

McGowan, 472 F.3d at 745; Kendrick, 220 F.3d at 1230; Aramburu, 112 F.3d at 1404.

43

ECF No. 86-1 at 23 of 25 (emphasis added).
10

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documents.” 44 Consequently, Ms. King fails to establish that the discovery requests seek
information about employees who are similarly situated “in all relevant respects.” 45 Therefore,
the information sought by Interrogatory No. 23 and RFP Nos. 24-25 is not relevant to the claims
and defenses in this case, and, as a result, Verizon is not required to provide any further
responses to those discovery requests.
Notwithstanding her failure to argue all of the appropriate standards for determining
whether employees are similarly situated, Ms. King contends that: (1) the Tenth Circuit cases the
court relies upon herein that addressed the issue of whether employees were similarly situated
did so in the more narrow context of summary judgment, not in the broader context of discovery;
and (2) she is entitled to see all of Verizon’s discipline records to make her own determination
about whether there is relevant evidence about employees similarly situated to Ms. King. For the
following reasons, those arguments fail.
First, although Ms. King is correct in asserting that the Tenth Circuit cases upon which
the court relies were in the context of summary judgment, 46 district courts in the Tenth Circuit,
including this court, have relied upon the standards set forth in those cases when resolving
discovery issues. 47 Thus, the court relies upon those cases in a similar fashion here.
44

ECF No. 86-1 at 24 of 25 (emphasis added).

45

McGowan, 472 F.3d at 745.

46

Id.; Kendrick, 220 F.3d at 1230; Aramburu, 112 F.3d at 1404.

47

See, e.g., Schmelzer v. IHC Health Servs., Inc., No. 2:19-CV-00965-TS-JCB, 2022 WL
3108078, at *5 (D. Utah Aug. 4, 2022) (applying standards in the discovery context); Rains v.
Westminster Coll., No. 2:20-CV-00520, 2022 WL 294827, at *2 (D. Utah Feb. 1, 2022) (applying
standards to a motion to compel discovery); Flowers v. Matheson Tri-Gas, Inc., No. CV 19-148
RB/SCY, 2020 WL 1889108, at *2 (D.N.M. Apr. 16, 2020) (applying standards in the context of
a motion for protective order to address “what comparator evidence over what period of time is
discoverable”); Equal Emp. Opportunity Comm’n v. Dillon Cos., Inc., No. 09-CV-02237-ZLW11

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Second, Ms. King fails to provide any authority for the proposition that she should be
allowed to see all of Verizon’s discipline records to determine on her own whether there is any
relevant evidence concerning employees similarly situated to Ms. King. Indeed, when directly
questioned about that issue at oral argument, Ms. King indicated that she had no caselaw to
support that extremely broad view of discovery and was relying solely upon Rule 26(b)(1) and
her litigation experience. That support is unpersuasive here.
B.

Ms. King’s Request to Reopen Discovery for Certain Purposes Is Denied.

Ms. King seeks to reopen discovery to allow her to: (1) depose Mr. Cervinski, (2) depose
Ms. Lofgren, (3) conduct a Rule 30(b)(6) deposition of Verizon, and (4) serve the Subpoena on
SCMS. Below, the court sets forth the standards governing Ms. King’s request to reopen
discovery, then addresses each of Ms. King’s specific requests. As demonstrated below, Ms. King
fails to demonstrate that discovery should be reopened for any of her requested purposes.
Ms. King’s motion is governed, in part, by Fed. R. Civ. P. 16(b)(4), which provides that a
scheduling order “may be modified only for good cause and with the judge’s consent.”
Additionally, because Ms. King’s request was made after the discovery deadline expired, that
request is governed, in part, by Fed. R. Civ. P. 6(b)(1)(B), which provides that “the court may, for
good cause,” extend a deadline after it has expired “if the party failed to act because of excusable
neglect.” Therefore, Ms. King must show both good cause and excusable neglect for her request
to be granted.

MEH, 2010 WL 3239262, at *3 (D. Colo. Aug. 13, 2010) (applying standards to motion to
compel discovery).
12

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The Tenth Circuit has recognized that good cause and excusable neglect are not identical
but are interrelated. 48 With respect to what is required to show good cause, the Tenth Circuit has
stated:
Without attempting a rigid or all-encompassing definition of good
cause, it would appear to require at least as much as would be
required to show excusable neglect, as to which simple inadvertence
or mistake of counsel or ignorance of the rules usually does not
suffice, and some showing of good faith on the part of
the party seeking the enlargement and some reasonable basis for
noncompliance within the time specified is normally required. 49
“‘[G]ood cause’ requires a greater showing than ‘excusable neglect.’” 50 “Good cause comes into
play in situations in which there is no fault—excusable or otherwise. In such situations, the need
for an extension is usually occasioned by something that is not within the control of the
movant.” 51 “It requires the moving party to show the deadline cannot be met despite the
movant’s diligent efforts.” 52
To determine whether the lesser standard of excusable neglect is shown,
a court must take into account “all relevant circumstances
surrounding the party’s omission.” These include four relevant
factors: (1) “the danger of prejudice” to the nonmoving party;
(2) “the length of the delay and its potential impact on judicial
proceedings”; (3) “the reason for the delay, including whether it was

48

In re Kirkland, 86 F.3d 172, 175 (10th Cir. 1996); Putnam v. Morris, 833 F.2d 903, 905 (10th
Cir. 1987).

49

In re Kirkland, 86 F.3d at 175 (emphasis in original) (quotations and citations omitted); see
also Putnam, 833 F.2d at 905.
50

In re Kirkland, 86 F.3d at 175 (footnote omitted).

51

Utah Republican Party v. Herbert, 678 F. App’x 697, 700-01 (10th Cir. 2017) (quotations and
citation omitted).
52

Id. at 701 (quotations and citation omitted).
13

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within reasonable control of the movant”; and (4) “whether the
movant acted in good faith.” 53
“The Tenth Circuit has . . . held that the third factor . . . is ‘perhaps the most important single
factor . . . in determining whether neglect is excusable.’” 54 “‘[A]n inadequate explanation for
delay, may, by itself, be sufficient to reject a finding of excusable neglect.’” 55
In addition to those standards, the Tenth Circuit has provided the following factors for the
court to consider when determining whether to reopen discovery:
1) whether trial is imminent, 2) whether the request is opposed,
3) whether the non-moving party would be prejudiced, 4) whether
the moving party was diligent in obtaining discovery within the
guidelines established by the court, 5) the foreseeability of the need
for additional discovery in light of the time allowed for discovery
by the district court, and 6) the likelihood that the discovery will
lead to relevant evidence. 56
The Tenth Circuit has further instructed that “[w]hether to extend or reopen discovery is
committed to the sound discretion of the trial court.” 57

53

Shifers v. Arapahoe Motors, Inc., No. 17-CV-01753-CMA-KLM, 2018 WL 6620866, at *3 (D.
Colo. Dec. 18, 2018) (citations omitted) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P’ship, 507 U.S. 380, 395 (1993)); see also Shifers, 2018 WL 6620866, at *3 (providing that
although the Pioneer Court’s “discussion of excusable neglect . . . concerned Bankruptcy Rule
9006(b)(1), . . . its analysis rested on the plain meaning of the terms . . . . Accordingly, the Court
of Appeals for the Tenth Circuit has extended the Pioneer standard of excusable neglect to
motions arising under . . . Federal Rule of Civil Procedure 6(b)” (citing multiple Tenth Circuit
cases) (quotations and citations omitted)).
54

Shifers, 2018 WL 6620866, at *3 (third alteration in original) (quoting City of Chanute, Kan. v.
Williams Nat. Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994)).
55

Id. (alteration in original) (quoting Perez v. El Tequila, LLC, 847 F.3d 1247, 1253 (10th Cir.
2017)).
56

Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987).

57

Id.
14

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Given the similarity between the good-cause standard (i.e., showing that the deadline
cannot be met despite the movant’s diligent efforts) and the fourth factor to consider when
determining whether to reopen discovery (i.e., showing that the moving party was diligent in
obtaining discovery within the guidelines established by the court), the court considers those two
factors together below. Additionally, because the court concludes below that Ms. King has not
established good cause, the court need not consider the lesser standard of excusable neglect. The
court now turns to the required factors for determining whether to reopen discovery.
At the outset, the court considers factors one, two, three, and six for all of Ms. King’s
requests. Because a trial date has not yet been scheduled in this case, the first factor weighs in
favor of reopening discovery. At the same time, Verizon opposes each of Ms. King’s requests,
meaning that the second factor weighs against reopening discovery. As for the third factor, the
court concludes that Verizon would be prejudiced if fact discovery were to be reopened, which
weighs against reopening discovery. Verizon has already moved for summary judgment in
accordance with the deadline for dispositive motions the court set in the operative scheduling
order. Reopening discovery at this point for Ms. King’s stated purposes would undoubtedly
require Verizon to re-brief its motion for summary judgment, which some courts have concluded
amounts to prejudice under the third factor. 58 Moreover, having the benefit of Verizon’s summary
judgment motion precisely tells Ms. King which additional discovery is necessary to thwart the
motion. That is both unfair and prejudicial. Finally, Verizon does not dispute that allowing Ms.

58

See, e.g., Klaczkiewicz v. Nationstar Mortg. LLC, No. 17-CV-147-F, 2018 WL 11252671, at *2
(D. Wyo. May 18, 2018) (concluding that reopening discovery after the defendants had filed a
summary judgment motion would cause the defendants undue prejudice and citing multiple cases
in support of that proposition).
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King to pursue each of her requests may lead to relevant evidence, which means that the sixth
factor weighs in favor of reopening discovery.
The court now turns to analyzing the fourth and fifth factors, which the court concludes
are the most important factors here. As shown below, the need for the discovery Ms. King now
seeks was foreseeable throughout discovery, and Ms. King fails to show that she was diligent in
seeking that discovery. Accordingly, the relevant factors weigh against reopening discovery for
Ms. King’s requested purposes, and Ms. King fails to show good cause to amend the scheduling
order. Therefore, the court denies each of Ms. King’s requests.
1.

Mr. Cervinski

Ms. King seeks to reopen discovery to take Mr. Cerviniski’s deposition. For the following
reasons, the court denies Ms. King’s request. First, the need to depose Mr. Cervinski was
foreseeable. In her Equal Employment Opportunity Commission Charge of Discrimination, Ms.
King specifically named Mr. Cervinski as the person responsible for the race harassment she
allegedly endured and complained that he failed to genuinely investigate her complaints. 59
Additionally, Ms. King testified at her deposition that she detailed her complaints to Mr.
Cervinski in two or three interviews with him in 2015 and that Mr. Cervinski was one of the
decisionmakers with respect to her termination. 60 Further, Verizon named Mr. Cervinski in its
initial disclosures as a witness with potential discoverable information about the “investigation
into complaints regarding [Ms. King] and the circumstances surrounding [Ms. King]’s

59

ECF No. 81-4 at 4, 9 of 11.

60

ECF No. 81-2 at 3-6 of 6.
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termination from Verizon.” 61 Under those circumstances, the need to depose Mr. Cervinsky was
foreseeable for quite some time if not from the outset of the case.
Ms. King claims that the need to depose Mr. Cervinsky was not foreseeable because she
was generally confused about who was responsible for her termination and that the documents
produced by Verizon tended to point to Kevin Atkinson (“Mr. Atkinson”) as the responsible
party. Those arguments are belied by Ms. King’s own allegations and deposition testimony, as
indicated above.
Second, Ms. King was not diligent in seeking to either obtain additional discovery about
Mr. Cervinsky or take his deposition during the discovery period. Despite her understanding of
Mr. Cervinski’s role in her termination demonstrated by the Charge of Discrimination and her
deposition testimony, and notwithstanding Verizon’s disclosure of Mr. Cervinsky as a potential
witness, Ms. King sought no additional discovery concerning Mr. Cervinsky during the nearly
year-long discovery period, which would have likely led to information showing the need to
depose him. 62 Therefore, the court denies Ms. King’s request to reopen discovery to take Mr.
Cerviniski’s deposition.
2.

Ms. Lofgren

Ms. King seeks to reopen discovery to take Ms. Lofgren’s deposition. For the following
reasons, the court denies Ms. King’s request. First, the need to depose Ms. Lofgren was

61

ECF No. 81-6 at 4 of 9.

62

Ms. King also asserts that she was diligent in attempting to depose Mr. Cervinsky as soon as
she learned of his true role in her termination after Mr. Atkinson’s deposition was completed on
March 11, 2022. Even if the court assumes that is true, it does not excuse Ms. King’s failure to
seek any discovery concerning Mr. Cervinsky during the discovery period to determine if she
needed to depose him especially given his prominent role in Ms. King’s case from the outset.
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foreseeable. Ms. King testified at her deposition that Ms. Lofgren, who was Mr. Cervinski’s
supervisor, was one of the decisionmakers with respect to Ms. King’s termination. 63 Additionally,
Ms. Lofgren was one of the individuals who approved the recommendation for termination of
Ms. King’s employment. 64 Further, as with Mr. Cervinski, Verizon named Ms. Lofgren in its
initial disclosures as a witness with potential discoverable information about the “investigation
into complaints regarding [Ms. King] and the circumstances surrounding [Ms. King]’s
termination from Verizon.” 65 Given those facts, the need to depose Ms. Lofgren was foreseeable.
Second, Ms. King was not diligent in seeking to either obtain additional discovery about
Ms. Lofgren or depose Ms. Lofgren. Although Ms. King complains that the description of Ms.
Lofgren’s knowledge in Verizon’s initial disclosures was too vague for her to determine whether
she needed to depose Ms. Lofgren, Ms. King did not raise that issue in a timely fashion.
Furthermore, despite the foregoing facts showing that the need to take Ms. Lofgren’s deposition
was foreseeable, Ms. King did not seek to depose Ms. Lofgren until well after the close of fact
discovery and after Verizon had filed its motion for summary judgment. Accordingly, the court
denies Ms. King’s request to reopen discovery to take Ms. Lofgren’s deposition.
3.

Rule 30(b)(6) Deposition of Verizon

Ms. King seeks to reopen discovery to take Verizon’s Rule 30(b)(6) deposition. Ms. King
concedes that Verizon’s Rule 30(b)(6) deposition was foreseeable. Indeed, she sought to take that
deposition prior to the expiration of fact discovery. Thus, the court focuses on whether Ms. King

63

ECF No. 96-1 at 3-4 of 7.

64

ECF No. 83-3 at 5 of 5 (filed under seal).

65

ECF No. 81-6 at 5 of 9.
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was diligent in seeking to take the deposition. As shown, below the court concludes that she was
not and, therefore, denies her request.
On February 17, 2022, this court granted Verizon’s motion for a protective order, which
prohibited Ms. King from taking Verizon’s Rule 30(b)(6) deposition because her notice of
deposition was untimely under DUCivR 30-2. 66 On March 3, 2022, Ms. King objected to this
court’s order. 67 On April 18, 2022, Judge Parrish overruled Ms. King’s objection. 68 After
reaching that decision, Judge Parrish’s order stated:
The court notes that once [Ms.] King discovered that she had missed
the deadline for noticing a 30(b)(6) deposition and that Verizon
objected to the deposition on that basis, she could have moved to
extend the discovery cutoff in order to permit the deposition to take
place. Although the discovery deadline has now passed, this order is
made without prejudice to move to reopen discovery to permit a
30(b)(6) deposition. 69
As demonstrated by that statement, when this court granted Verizon’s motion for a
protective order related to Ms. King’s Rule 30(b)(6) deposition notice, Ms. King was left with a
strategic choice. On one hand, she could object to this court’s order and continue to press her
position that her Rule 30(b)(6) notice was timely, without moving to extend the February 28,
2022 fact discovery deadline before it expired. On the other hand, Ms. King could have filed
such a motion while still pursuing her objection to this court’s order. As is clear, Ms. King chose
the former strategy, which created the possibility of the precise situation in which Ms. King finds

66

ECF No. 52.

67

ECF No. 54.

68

ECF No. 71.

69

Id. at 3.
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herself: having her objection overruled and being forced to seek to reopen rather than extend
discovery. In the court’s view, Ms. King’s choice of strategy is not compatible with a finding of
diligence in obtaining Verizon’s Rule 30(b)(6) deposition within the discovery period the court
established. Therefore, the court denies her request to reopen discovery to take that deposition.
4.

Subpoena

Ms. King seeks to reopen discovery to serve the Subpoena on SCMS. For the following
reasons, the court denies Ms. King’s request. First, the need for the leave records that are sought
by the Subpoena was foreseeable. Ms. King concedes that she knew from the outset of this case
that her leave time was an issue. Indeed, Ms. King testified during her deposition about taking
leave from Verizon. 70
Second, Ms. King was not diligent in seeking to obtain her leave records. Verizon
disclosed Ms. King’s complete personnel file to Ms. King with its initial disclosures in February
2021, 71 and again advised Ms. King that it had made that disclosure in response to one of Ms.
King’s RFPs.72 Although Ms. King’s personnel file did not contain her leave records, she admits,
as stated above, that her leave was an issue in this case. Nevertheless, Ms. King never served a
discovery request on Verizon specifically seeking her leave records. Further, the first time she
specifically raised the issue of her leave records with Verizon was in a February 21, 2022
meet-and-confer letter, 73 which was over one year after Verizon disclosed her personnel file.

70

ECF No. 65-3 at 3, 5 of 5.

71

ECF No. 81-6.

72

ECF No. 86-4 at 15 of 35.

73

ECF No. 79-1.
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Ms. King contends that the need for her leave records was not apparent until late-March
2022, when she learned that it was SCMS, not Verizon, which had her leave records. Ms. King
further contends that she was diligent in issuing the Subpoena soon after making that discovery.
Ms. King’s arguments are contradicted by the fact that she raised the issue of leave records with
Verizon in her February 21, 2022 meet-and-confer letter. Further, the fact that she learned for the
first time in late-March 2022 that SCMS had her leave records does not excuse her failure to
seek those records during the year-long discovery period, particularly given that she knew her
leave time was an issue in this case. Because Ms. King’s leave was a known, relevant issue long
before the discovery period expired, she should have availed herself of discovery during the
court-ordered discovery period. Accordingly, the court denies Ms. King’s request to reopen
discovery to serve the Subpoena on SCMS.
II.

Verizon’s Short Form Motion to Quash the Subpoena Is Granted.
Given that the court has concluded that it will not reopen discovery to allow Ms. King to

serve the Subpoena on SCMS, the court grants Verizon’s short form motion to quash the
Subpoena. Ms. King served the notice of intent to issue the Subpoena on April 11, 2022. 74 Under
the scheduling order in this case, the last day to serve written discovery was January 31, 2022,
and the close of fact discovery was February 28, 2022. 75 Because the Subpoena post-dates the
fact discovery deadline, the court must quash it. 76

74

ECF No. 65-1.

75

ECF No. 26.

76

Alfwear, Inc. v. Kulkote, LLC, No. 2:19-CV-00027-CW-JCB, 2020 WL 4196446, at *2 (D.
Utah July 21, 2020) (“Rule 45 subpoenas sought after the discovery cut-off date are improper
attempts to obtain discovery beyond the discovery period and should be quashed on this basis.”).
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ORDER
Based upon the foregoing analysis, IT IS HEREBY ORDERED:
1.

Ms. King’s motion to compel discovery responses from Verizon and to reopen
discovery to allow Ms. King to depose Ms. Lofgren, conduct a Rule 30(b)(6)
deposition of Verizon, and serve the Subpoena on SCMS 77 is DENIED.

2.

Ms. King’s motion to reopen discovery to allow Ms. King to depose Mr.
Cervinski 78 is DENIED.

3.

Verizon’s short form motion to quash the Subpoena 79 is GRANTED.

IT IS SO ORDERED.
DATED this 16th day of September 2022.
BY THE COURT:

JARED C. BENNETT
United States Magistrate Judge

77

ECF No. 86.

78

ECF No. 61.

79

ECF No. 65.
22