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- ncmd;;1:16-cv-00542_de306 RegisterActionDate "2020-04-21" @default.
- ncmd;;1:16-cv-00542_de306 RegisterActionDescriptionText "TEXT ORDER granting in part and denying in part 237 Joint Motion for Reconsideration of 235 Joint Motion to Extend Deadlines. Via Text Order dated 01/28/2019 (i.e., nearly 15 months ago), the Court (per the issuing Magistrate Judge) adopted in relevant part the parties' 151 Amended Joint Rule 26(f) Report, which established a discovery deadline of 04/30/2020 and a dispositive motions deadline of 05/30/2020. In 235 Joint Motion to Extend Deadlines (filed on 04/03/2020, i.e., less than one month before the close of discovery), the parties sought to extend those deadlines to 07/29/2020 and 08/28/2020, respectively, because (due to COVID-19) their efforts to "work[] through discovery requests [] are expected to take longer... because of more limited access to materials and personnel, [which] in turn is expected to delay certain depositions that the parties expect to conduct before the close of discovery." Via Text Order dated 04/06/2020, the Court "decline[d] to enter a blanket extension of the discovery and dispositive motions deadlines." In doing so, the Court observed that (A) "[p]rior to any issues arising from COVID-19, the parties knew that only 15 days and seven days, respectively, would remain to complete depositions within the lengthy discovery period, after the due dates for [the two outstanding sets of] written discovery" and (B) "[n]owhere in 235 Joint Motion[ did] the parties identify the specific depositions that they had made concrete plans to conduct during that small window of time... which they now reasonably cannot complete as planned due to COVID-19." In 237 Joint Motion, the parties again have sought extensions of the discovery and dispositive motions deadlines, now largely timed to fall after the Court resolves anticipated discovery disputes about one of the outstanding sets of written discovery, which they propose to begin litigating on 05/15/2020 (i.e., more than three weeks after the current (twice extended) due date for responses to that written discovery). The Court does not find "good cause" under Federal Rule of Civil Procedure 16(b)(4) for the parties' proposed modifications of the discovery and dispositive motions deadlines, but will make some smaller adjustments to the scheduling order and will adopt deadlines for litigation of any disputes over the outstanding written discovery. As to the latter matter, "[g]enerally, a party must file a motion to compel before the close of discovery in order for that motion to be deemed timely." Lane v. Lucent Techs., Inc., No. 1:04CV789, 2007 WL 2079879, at *3 (M.D.N.C. July 17, 2007) (Osteen, Sr., J.) (unpublished). Consistent with that general rule, the parties shall file any motion(s) related to outstanding written discovery by 04/30/2020. Further, pursuant to Local Rule 7.3(f), the Court shortens the response deadline as to any such motion(s) to 05/07/2020, and, pursuant to its inherent authority to control scheduling, the Court shortens the reply deadline as to any such response(s) to 05/11/2020. As to the request in 237 Joint Motion to defer depositions of eight individual Defendants and dispositive motion briefing until after the Court resolves the anticipated discovery disputes over written discovery, the Court observes that, pursuant to Local Rule 26.1(c), "[t]he requirement that discovery be completed within a specified time means that adequate preparation must be made for... depositions to be held within the discovery period." Upon review of 237 Joint Motion, the Court concludes that the parties did not make adequate preparation for the completion of depositions of those eight individual Defendants within the discovery period. Instead, 237 Joint Motion reveals that, for reasons totally unrelated to COVID-19, the parties agreed to defer those eight depositions, while they took from 12/05/2019 (when, according to 237 Joint Motion, Plaintiffs first became interested in the information sought in the discovery requests that they eventually served on 01/30/2020) through 04/23/2020 (when, as the record reflects, the parties agreed Defendants would respond to those requests) to decide exactly what they disputed about those matters, in the expectation that the Court would allow them to conduct those eight depositions (and to file dispositive motions) long past the long-established discovery and dispositive motions deadline(s). In that regard, the Court notes that 237 Joint Motion acknowledges that the parties need at least 14 days to conduct the depositions of the eight individual Defendants at issue, without considering any delays attributable to COVID-19; however, the parties previously left themselves only seven days between the date they asked the Court to set for certain written discovery responses (04/23/2020) and the discovery deadline (04/30/2020). In other words, well before any COVID-19-related issues arose, the parties had decided on a course that would not allow them to complete depositions of those eight individual Defendants by the existing discovery deadline. The Court declines to relieve the parties of the consequences of that decision, particularly given that 237 Joint Motion does not establish a need for resolution of any dispute over written discovery prior to any deferred depositions. Notably, 237 Joint Motion states that Plaintiffs became interested in the information sought in the written discovery at issue based on representations Defendants made in connection with class certification briefing. That briefing has concluded and 237 Joint Motion does not show what need Plaintiffs continue to have for the information sought in that written discovery, much less for follow-up deposition testimony. Even more significantly, 237 Joint Motion does not establish a need for such deposition testimony in order to file (or even to respond to) dispositive motions. As a result, the record (at least at present) does not reveal a need to defer depositions of any individual Defendants (or the dispositive motions deadline), pending litigation over any written discovery. If Plaintiffs ultimately file a motion to compel related to written discovery, they may include in such motion a request to re-open any deposition conducted within the discovery period (as well as a request that Defendants pay the reasonable expenses, including attorneys' fees, associated with any such re-opening), following any production of written discovery responses ordered by the Court, if they can show a need for such relief. In addition, the Court concludes that 237 Joint Motion fails to show "good cause" for the requested extension of the discovery deadline to allow until 05/22/2020, for the deposition of Plaintiffs' expert witness. Nothing in 237 Joint Motion shows that the parties made adequate preparation to conduct that deposition within the existing discovery period, but now cannot do so until 05/22/2020 due to COVID-19 (or other reasons), despite their reasonable diligence. Finally, the Court does not find good cause to extend the discovery deadline (and/or the dispositive motions deadline) to allow the parties until 05/22/2020 "to receive subpoena responses or supplementations from [certain non-parties]," as requested in 237 Joint Motion, because 237 Joint Motion does not show (A) the necessity of an extension of the discovery deadline to passively receive after the discovery deadline material timely subpoenaed before the discovery deadline, (B) the existence of adequate preparations to receive subpoenaed material before the discovery deadline, and/or (C) an inability to meet the dispositive motions deadline without the requested extension. The Court, however, does find good cause for a two-week extension of the discovery period to 05/14/2020 to allow the parties to conduct depositions that, prior to developments attributable to COVID-19, they reasonably could have conducted during the one-week period they left for themselves between 04/23/2020 and 04/30/2020, but reasonably now could not accomplish in that time-frame because of logistical challenges attributable to COVID-19, as well as a coordinate extension of the dispositive motions deadline to 06/15/2020. To assist the parties in coping with the logistical challenges of conducting depositions remotely, pursuant to Rules 28, 29, and 30 of the Federal Rules of Civil Procedure, and by and with the consent of the parties to this action (as expressed in 237 Joint Motion), the Court hereby appoints any person regularly engaged in stenographic court reporting and selected by a party noticing a deposition in this matter to administer oaths remotely and to take testimony remotely for any deposition taken in this matter. Issued by MAG/JUDGE L. PATRICK AULD on 04/21/2020. (AULD, L.) (Entered: 04/21/2020)" @default.
- ncmd;;1:16-cv-00542_de306 AdministrativeID "None" @default.
- ncmd;;1:16-cv-00542_de306 hasJudgeReference SJ004076 @default.
- ncmd;;1:16-cv-00542_de306 hasReferenceToOtherEntry ncmd;;1:16-cv-00542_de177 @default.
- ncmd;;1:16-cv-00542_de306 hasReferenceToOtherEntry ncmd;;1:16-cv-00542_de300 @default.
- ncmd;;1:16-cv-00542_de306 hasReferenceToOtherEntry ncmd;;1:16-cv-00542_de304 @default.