United States District Court, D. Arizona
G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
Court held a conference call with the parties on October 22,
2019, heard argument, and directed the parties to file a
discovery matrix. Doc. 88. The Court later requested a
supplemental filing by Plaintiff (Doc. 90) and held a second
telephone conference with the parties on November 12, 2019.
The Court now rules.
Deposition of Plaintiff's CEO, David Tedesco.
reviewing the relevant portion of the matrix (Doc. 89-2) and
attachments, the Court concludes that Mr. Tedesco possesses
information relevant to this case and is subject to
deposition. The parties indicated during the initial
conference call that this subject has been under discussion
since June, indicating that Defendants did not delay unduly
in seeking the deposition. The deposition shall be limited to
three hours of questioning by Defendants and shall be
completed within 30 days of this order.
Plaintiff's Request for Further Time to Complete Canadian
prior judge presiding over this case entered a case
management order on August 27, 2018, and set a discovery
deadline of July 1, 2019. Doc. 38. At the request of the
parties (Doc. 54), the undersigned judge extended the fact
discovery deadline to October 1, 2019. Because more than one
year had been allowed for fact discovery in this case, the
Court cautioned: “The parties are advised that
the Court will not grant additional extensions absent truly
extraordinary circumstances.” Doc. 58
(emphasis in original). To facilitate the October 22
conference call, the deadline was extended briefly to October
22, 2019. Doc. 85.
docket reflects that little discovery occurred during the
10-month discovery period between August 27, 2018, and July
1, 2019. The only entries on the dockets are notices of
compliance with the Court's mandatory initial discovery
pilot project (“MIDP”). Indeed, on May 27, 2019,
the parties filed a joint stipulation stating that they
“served each other with written discovery in the form
of Interrogatories, Requests for Admissions, and Requests for
Production with responses due on or about June 17 - only two
weeks before the scheduled discovery deadline.” Doc. 54
at 1-2. The parties thus waited until nearly the close of
fact discovery before serving discovery requests. They also
indicated that no depositions had occurred, and that they had
“tentatively” scheduled depositions for June
10-14, 2019. Id. at 2. They further noted that
Plaintiff intended to conduct discovery in Canada.
the Court extended the discovery period to October 1, 2019
with a warning, Plaintiff did not file a motion for letters
rogatory to facilitate discovery in Canada until August 16,
2019, only six weeks before the close of discovery. Doc. 80.
Not surprisingly, Plaintiff has now found that the issue is
tied up in the Canadian courts. Although Plaintiff suggested
in the initial conference call that matters would be resolved
in Canada by January, papers submitted by the parties show
that a hearing is set before a Canadian court on January 8,
2020, and that depositions and document production will be
required in Canada thereafter if the request is granted. Doc.
89-3 at 18. There is no assurance that the issue will be
resolved before months have passed in 2020. Plaintiff's
counsel acknowledged during the initial conference call that
the letters rogatory process could have been initiated a year
ago, and the relevancy of Canadian information has been clear
from the start of this case.
provides that deadlines established in a case management
order may “be modified only for good cause[.]”
Fed.R.Civ.P. 16(b)(4); see Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992).
“Good cause” exists when a deadline “cannot
reasonably be met despite the diligence of the party seeking
the extension.” Fed.R.Civ.P. 16 Advisory Comm. Notes
(1983 Am.). Thus, “Rule 16(b)'s ‘good
cause' standard primarily considers the diligence of the
party seeking the amendment.” Johnson, 975
F.2d at 609; see also Coleman v. Quaker Oats Co.,
232 F.3d 1271, 1294 (9th Cir. 2000). Where that party has not
been diligent, the inquiry ends and the motion must be
denied. Zivkovic v. S. Cal. Edison Co., 302 F.3d
1080, 1087 (9th Cir. 2002); Johnson, 975 F.2d at
609. The Ninth Circuit continues to follow this standard.
See Bailey v. Gatan, Inc., No. 17-17530, 2019 WL
3782061, at *2 (9th Cir. Aug. 12, 2019).
could have met both the July 1 and October 1 discovery
deadlines through reasonable diligence, even with respect to
the Canadian discovery. Plaintiff therefore has not shown
good cause as required by Rule 16(b)(4) - much less the
extraordinary circumstances the Court said would be required
for further extensions - and the Court will not extend the
discovery period to complete the Canadian discovery. With the
exception of the Tedesco deposition and the document
production addressed below, fact discovery is closed.
Plaintiff's expert disclosure deadline.
expert disclosure deadline was October 15, 2019. See
Doc. 58. Plaintiff did not meet this deadline. As the Court
stated during the initial conference call, however, it
appears Plaintiff missed the deadline because it was waiting
for the discovery conference call scheduled for October 22,
2019. The expert disclosure schedule will be reset after the
conference call scheduled for December 5, 2019, as set forth
Parties' Disclosure Disputes.
Court has reviewed the parties' matrix. Doc. 89-1. Many
of Plaintiff's document production requests seek
documents that clearly are relevant to this litigation and
should have been produced. Unfortunately, Defendants'
responses set forth a list of objections without stating
whether any documents were produced in response to any
request, without stating - as required by Rule 34(b)(2)(C) -
whether any documents had been withheld on the basis of the
objections, and without stating - as required by Rule
34(b)(2)(B) - when documents would be ...