United States District Court, D. Arizona
A. Teilborg Senior United Stales District Judge.
before this Court is Plaintiff's “motion for
clarification.” (Doc. 186). This motion for
clarification is really a motion for reconsideration of a
motion this Court has twice denied. Specifically, Plaintiff
is dissatisfied with the discovery responses it has received
from Defendant. As a result of this dissatisfaction,
Plaintiff moved for sanctions. (Doc. 177). The Court denied
that request. (Doc. 179). Plaintiff moved for reconsideration
of the denial of the request for sanctions. (Doc.
180). The Court denied that request. (Doc. 184).
indicated above, Plaintiff now seeks
“clarification” of the Court's scheduling
order. However, Plaintiff is not really seeking
clarification. Plaintiff is seeking reconsideration of the
Court's refusal to reopen discovery. Nonetheless, the
Court will “clarify” to the limited extent below.
poses 4 questions to the Court, (Doc. 186) that generally
fall into two categories: 1) the discovery deadline; and 2)
supplementation. Regarding the discovery deadline, Plaintiff
seeks to understand how Plaintiff could have obtained the
discovery it seeks. As the Court understands the timeline,
Plaintiff propounded discovery. Defendant objected. The Court
held a discovery dispute hearing and overruled
Defendant's objections, thereby requiring Defendant to
produce more discovery. Defendant complied (at least in
part). Defendant's compliance caused Plaintiff to want
more discovery (either new discovery learned of via these new
disclosures; or more discovery Plaintiff believes was
necessitated by the Court's order). Plaintiff cannot
understand how it can obtain this additional discovery now
that discovery is closed. The short answer is: Plaintiff
cannot. However, as this Court's previous orders made
clear, Plaintiff could have done everything Plaintiff seeks
had Plaintiff raised this issue with the Court sooner.
example, had Plaintiff raised this discovery dispute in early
December 2018, and had Defendant produced the additional
information in early January 2019, Plaintiff would have had
time before the February 22, 2019 fact discovery deadline to
either propound more discovery on Defendant and/or raise a
further discovery dispute with the Court about the breadth of
Defendant's compliance. However, Plaintiff did not raise
this issue with the Court until a mere 9 days before the
close of discovery; thereby not leaving itself enough time to
do all of this follow-up it now seeks. As the previous order
(Doc. 184) detailed, the Court issued many warnings about not
putting yourself in this position, which Plaintiff failed to
heed. As this point, fact discovery is closed.
supplementation, first, the need to supplement in a case like
this should be rare or non-existent. Specifically, the
parties had a duty to, in good faith, look for and produce
all responsive discovery prior to the close of discovery.
Thus, there should not be the “discovery” of
responsive materials after the close of discovery. Phrased
another way, supplementation is not a basis to engage in a
rolling production. Responses should have been complete by
the close of discovery.
barring a case wherein there are on-going medical bills or
other damages being incurred, there should not be discovery
that comes into existence after the close of discovery.
Plaintiff has not explained any hypothetical situation in
this breach of contract and fraud case (Doc. 59) wherein
relevant evidence would still be being created. However, in
such a circumstance, the MIDP Order controls. Gen. Ord. No.
17- 08 (D. Ariz. Apr. 14, 2017) at 3, ¶8. Thus, for a
case such as this one, the Court does not anticipate
significant, if any, post-close of fact discovery
regarding on-going expert discovery “supplementation,
” again, responsive documents should all be produced by
the deadlines set in the Rules. The duty to later supplement
is not in lieu of timely production in the first instance.
Further, the duty to supplement as it relates to experts is
very limited. Specifically, the Rule state, “For an
expert whose report must be disclosed under Rule 26(a)(a)(B),
the party's duty to supplement extends to both
information included in the expert's report and to
information given during the expert's deposition.”
Fed.R.Civ.P. 26(e)(2). The deadline to complete these
supplements is the close of expert discovery. While the Court
cannot hypothesize a situation where, after the close of
expert discovery, there would be “newly
discovered” information that impacts either the report
or the deposition, in such a circumstance, the deadline in
the MIDP order would control.
on the foregoing, IT IS ORDERED that the
motion for clarification (Doc. 186) is granted to the extent
clarification was provided herein but denied in all other
IS FURTHER ORDERED Plaintiff shall not seek further
reconsideration, clarification, or other exceptions to this
Court's fact discovery deadline. If Plaintiff continues
to seek reconsideration unjustifiably in this case, Defendant
may move for sanctions if Defendant deems such request to be
appropriate. See 28 U.S.C. § 1927.
 This motion for reconsideration should
not be confused with Plaintiff's motion for
reconsideration on a different discovery matter in which
Plaintiff is dissatisfied with the Court's' ruling.
(Doc. 170) (seeking reconsideration of Doc. 164, on which a
stay was denied at Doc. 166). That motion will be addressed
by separate order. This motion also should not be confused
with Plaintiff's prior ...