United States District Court, D. Arizona
ORDER AND OPINION (MOTIONS AT DOCS. 419 AND
424)
JOHN
W. SEDWICK SENIOR JUDGE
I.
MOTIONS PRESENTED
At
docket 419 Defendants move to extend the time for completing
Phase IIB discovery, the time for filing certain motions, and
the time for filing a proposed pre-trial order.
Plaintiffs' opposition is at docket 421, and
Defendants' reply is at docket 423. At docket 424
Plaintiffs file a belated request for oral argument or, in
the alternative, to file a sur-reply.
II.
DISCUSSION
After
reviewing the briefing, the court finds that the principal
substantive issue presented is whether Defendants should be
granted an extension of time for discovery so that they may
depose individual drivers about where their vehicles were at
various times in the past. As Defendants put it in their
reply memo:
As previously stated, on June 8, Defendants received
Plaintiffs' expert rebuttal report and learned that the
experts had conflicting opinions regarding how certain
anomalies should be interpreted in the various reports. For
example [and this is the only example given], Plaintiffs'
expert opined that GPS data from the vehicles driven by class
members was unreliable because the data did not present a
continuous string of feedback, but instead presented a series
of discrete data outputs or “pings.”
Defendants' expert opined that the intervals between the
GPS data “pings” were confirmation of the model
used by Defendants' expert. What will otherwise be an
unnecessarily hypothetical debate between the parties and
[sic] could easily be explained by testimony of absent class
members as to such simple things as where their vehicles were
located during certain intervals of time.[1]
Defendants insisted on deposing absent class members from
June 8[2] until June 28 when Defendants gave
Plaintiffs a list of six opt-in plaintiffs who might be
deposed in lieu of absent class members. A review of the
communications between the parties' lawyers shows that on
June 13 Plaintiffs' counsel brought to the attention of
defense counsel that a defendant seeking to depose absent
class members bears a heavy burden to justify such
discovery.[3] Defendants did not directly challenge this
proposition, but instead waited until June 28 to effectively
abandon the request to depose absent class members by
suggesting depositions of certain opt-in plaintiffs.
In the
meantime, the court approved the parties' seventh
stipulated request to modify the court's scheduling order
which they filed on May 12.[4] The approved stipulation modified
the scheduling order setting June 30 as the deadline for
completion of Phase IIB discovery. Obviously both sides were
well aware that the much extended deadline for discovery was
about to close. Defendants did not move for an extension of
time for discovery until June 30, the very day discovery
closed.
A
scheduling order may be modified at the discretion of the
court upon a showing of good cause.[5] A primary consideration when
examining whether good cause has been shown is whether the
requesting party has been diligent.[6] Assuming, without deciding,
that Defendants have been adequately diligent given the
convoluted circumstances presented here, the court
nevertheless will not exercise its discretion to grant the
requested extension. Defendants have not actually
demonstrated that the requested discovery would resolve
anomalies in the data obtained from the discrete data outputs
from the CXT system used in the drivers' trucks. There is
no reason to believe that individual drivers have a better
understanding of how the CXT system works than do Defendants.
There is no reason to believe that individual drivers could
remember exactly where they were or what they were doing
between pings on various past dates. The value of the
additional discovery sought is counterintuitive and
speculative at best. The court declines to exercise its
discretion to modify the scheduling order to allow for such
additional discovery.
III.
CONCLUSION
Based
on the preceding discussion, the motion at docket 419 is
DENIED, and the motion at docket 424 is DENIED as moot in
view of the decision on the motion at docket 419.
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Notes:
[1]Doc. 423 at p. 2.