United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
Bright LLC (“Plaintiff”) alleges
Defendant/Counterclaimaint Best Western (“Best
Western”) terminated the parties' agreement and
refused to allow Plaintiff to open its hotel as a Best
Western after Plaintiff invested over a million dollars in
renovations. (Doc. 1). The parties have now submitted a
discovery dispute regarding whether Plaintiff can depose
Chris Campbell (“Campbell”), Best Western's
former Regional Director for North America who allegedly
negotiated with non-party Dilip Patel to build a competing
hotel near the site of Plaintiff's planned hotel. (Doc.
189). Since the dispute hinges on whether fact discovery is
currently open or closed, a brief summary of this Court's
scheduling orders and the parties' requests to stay
specific aspects of discovery is called for.
the operative, December 14, 2017 scheduling order, expert
witnesses were to be disclosed no later than January 31,
2018, rebuttal experts no later than March 5, 2018, fact
discovery was to close on April 2, 2018, all supplementation
of discovery was to be completed by April 19, 2018, and
dispositive motions were to be filed by April 30, 2018. (Doc.
81). After this schedule was entered, several motions
impacting these deadlines followed.
Plaintiff filed a motion to amend the complaint on December
13, 2017. (Doc. 79). That motion was fully briefed on January
16, 2018, but before the Court could resolve it, the parties
filed an unopposed motion “to delay the completion of
expert discovery pending the Court's ruling” on
Plaintiff's motion to amend the complaint. (Doc. 93). In
doing so, the parties asked to delay both the expert
disclosure and rebuttal expert deadlines. (Id.). The
motion explicitly and repeatedly referenced the expert
disclosure deadlines, but did not request that any other
deadlines be extended. The only mention of other deadlines
was in the proposed order attached to the motion, which
included blank lines for the expert witness deadlines, but
also blank lines for the deadlines to complete fact
discovery, to finally supplement discovery, and to submit
dispositive motions. (Doc. 93-1). The Court referenced the
expert disclosures and granted the request to stay expert
discovery. (Doc. 99). The Court ordered the parties to
file a proposed scheduling order no later than
February 19, 2018. (Doc. 99). The parties did not file this
proposed scheduling order.
parties continued with discovery including the deposition of
fact witnesses. Then in March 2018, Plaintiff filed a Motion
to Disqualify Counsel, (Doc. 111), and a motion to stay
“the depositions of Sanjay Koshiya (‘S.
Koshiya') and Hasmukh (‘Harry') Patel
(‘H. Patel')” pending a ruling on
Plaintiff's motion to disqualify, (Doc. 112). The
two-page motion to stay specifically referenced S.
Koshiya's and H. Patel's depositions three times. It
did not request that any other depositions be stayed. The
proposed order attached to the motion to stay likewise
specifically requested to stay S. Koshiya's and H.
Patel's depositions. The Court granted the motion to stay
these depositions while Plaintiff's motion to disqualify
Best Western's counsel was pending. (Doc. 116).
as of March 2018, the Court had stayed the depositions of S.
Koshiya and H. Patel and had stayed expert discovery, but
fact discovery should have been ongoing. Yet, because the
Court never received a proposed scheduling order, a new
scheduling order was never entered.
on July 27, 2018, the Court granted in part Plaintiff's
motion for leave to amend the complaint and denied the motion
to disqualify counsel. (Docs. 154; 155). Thus, based upon the
Court's prior rulings, these orders removed the stay
regarding S. Koshiya's and H. Patel's depositions,
and also removed the stay regarding expert
disclosures. Because the deadline for all fact
discovery had expired on April 2, 2018, only the depositions
which had been stayed (and discovery on the new claims) was
parties have now submitted a discovery dispute regarding
whether fact discovery is open such that Plaintiff can depose
Campbell. (Doc. 189). Best Western argues fact discovery
closed on April 2, 2018, that Plaintiff's motion to stay
expert discovery applied only to expert discovery, and that
Plaintiff's motion to stay S. Koshiya's and H.
Patel's depositions did not address, nor apply to,
Campbell. (Id.). Further, Best Western argues
Plaintiff “knew it wanted to depose Campbell long
before discovery was closed” and yet failed to schedule
his deposition despite that Campbell was available at that
however, argues its motion to extend the expert discovery
deadlines applied to both expert and fact discovery, and that
its motion to stay depositions applied to “scheduled
depositions.” (Doc. 189). Plaintiff also notes that it
sought deposition dates for Campbell on October 16, 2017.
(Id.). Plaintiff does not explain why it never
actually took Campbell's deposition.
unbelievably distorts the motions to stay submitted to the
Court. Plaintiffs motion to stay depositions only referenced
S. Koshiya and H. Patel's depositions-it did not address
Campbell's deposition nor any other “scheduled
deposition.” Further, Plaintiffs motion to stay expert
discovery exclusively and repeatedly referenced expert
discovery deadlines. It did not reference, nor request a stay
of, fact discovery. Thus, fact discovery concluded on April
2, 2018. Why Plaintiff did not depose Campbell prior to that
deadline is unclear, but Plaintiff will not be permitted to
depose Campbell now.
IT IS ORDERED Plaintiff may not depose
 Instead, the parties emailed the
proposed scheduling order to chambers, where computer
software apparently flagged it as spam, thereby ...