Opinion
No. 3-04-CV-1059-B.
March 29, 2005
MEMORANDUM ORDER
Plaintiff Peter M. Bealsey has filed a motion to quash or for protective order and a motion to compel discovery in this Title VII race discrimination and retaliation case. At issue are depositions on written questions propounded by defendant and objections to a request for production of documents. The issues have been fully briefed by the parties in a Joint Status Report filed on March 24, 2005, and the motions are ripe for determination.
I.
Plaintiff first objects to depositions on written questions and Rule 45 subpoenas served on the records custodians for the U.S. Department of Education and Wade College. This third-party discovery was propounded by defendant on March 14 17, 2005 — nearly three months after the expiration of the discovery deadline. Plaintiff contends that the discovery is untimely, overly broad, unduly burdensome, and seeks the disclosure of highly private and personal documents which are not reasonably calculated to lead to the discovery of admissible evidence. Defendant counters that the scheduling order does not preclude the parties from conducting third-party discovery beyond the court-imposed deadline and that the documents are relevant to plaintiff's credibility and the issue of damages.
The court rejects defendant's argument that the scheduling order does not preclude third-party discovery after the expiration of the discovery deadline. To the contrary, the order provides that "[a]ll discovery . . . must be COMPLETED — not merely initiated — by December 21, 2004." See Sch. Order, 7/20/04 at 6, ¶ 8 (capitalization and italics in original). Depositions on written questions and Rule 45 subpoenas to third-parties are not exempted from this order. Therefore, the discovery at issue will not be permitted unless defendant demonstrates "good cause" for modifying the scheduling order. See Fed.R.Civ.P. 16(b). The "good cause" standard focuses on the diligence of the party seeking the requested modification. Dallas Area Rapid Transit v. Foster, 2002 WL 31433295 at *1 (N.D. Tex. Oct. 28, 2002) (Kaplan, J.) (citing cases). Mere inadvertence on the part of the movant and the absence of prejudice to the non-movant are insufficient to establish "good cause." Id. Instead, the movant must show that "despite his diligence, he could not have reasonably met the scheduling deadline." Id., citing 6A C. Wright A. Miller, Federal Practice and Procedure § 1522.1 at 231 (2d ed. 1990).
On January 18, 2005, the scheduling order was vacated in part when this case was reassigned to Judge Jane J. Boyle. However, the amended scheduling order makes clear that the deadline for completion of discovery "has passed." See Order, 1/18/05 at 2, ¶ 5.
Defendant cites two district court cases from other jurisdictions for the proposition that third-party subpoenas are not subject to a court-imposed discovery deadline. See, e.g. O'Boyle v. Jensen, 150 F.R.D. 519, 520 (M.D. Pa. 1993); Multi-Tech Systems, Inc. v. Hayes Microcomputer Products, Inc., 800 F.Supp. 825, 854 (D. Minn. 1992). The court respectfully declines to follow those non-binding authorities, particularly in light of the fact that the scheduling order in the instant case requires "all discovery" to be completed by a date certain.
Here, defendant has demonstrated "good cause" for conducting this third-party discovery after the expiration of the discovery deadline. In the Joint Status Report, defendant explains it did not anticipate the need for documents from the U.S. Department of Education until January 28, 2005, when plaintiff corrected his deposition transcript to disclose that a certain entry reflected on his bank statement was a "student loan deposit." Similarly, plaintiff did not identify Wade College as a post-termination employer until he served supplemental interrogatory answers on December 21, 2004 — the last day of the discovery period. Because this information was not provided to defendant sooner, defendant could not have served its depositions on written questions and Rule 45 subpoenas before the expiration of the discovery deadline.
Nor has plaintiff shown that this discovery is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Defendant contends that it fired plaintiff because he falsified tuition reimbursement documents. In light of this defense, which plaintiff disputes, defendant should be allowed to discover documents submitted by plaintiff to the U.S. Department of Education to secure need-based financial aid for his graduate degree. Likewise, documents from plaintiff's post-termination employer are relevant to the issue of damages.
For these reasons, plaintiff's objections, motion to quash, and motion for protective order are denied.
II.
Plaintiff also moves to compel the production of "any and all documents which evidence or establish which individuals received tuition reimbursement assistance from Defendant during 2001, 2002, and 2003." (Plf. Req. for Prod. #64). Defendant objects to this document request as overly broad, unduly burdensome, confidential, and not reasonably calculated to lead to the discovery of admissible evidence.
Defendant also argues that plaintiff waived his right to compel the production of these documents by not pressing the issue until three months after the expiration of the discovery deadline. Although plaintiff could have sought a ruling on defendant's objections earlier, the court is not inclined to penalize a party for exercising patience while attempting to resolve an outstanding discovery matter with opposing counsel. Indeed, such a procedure is required by Dondi, the Local Rules of Practice for the Northern District of Texas, and this court's Standing Order on Non-Dispositive Motions.
The court initially observes that defendant offers no argument, much less evidence, to show that this discovery request is unduly burdensome and requires the production of confidential documents. Nor is the request overly broad. Although defendant maintains it would be "fruitless" for plaintiff to comb through tuition reimbursement requests made by other employees because "defendant is unaware of any other individual who has falsified his tuition reimbursement forms," plaintiff is entitled to verify that representation. If, as plaintiff believes, he was treated differently than other employees who submitted reimbursement forms containing "numerous errors and inconsistencies," such evidence may be relevant to establishing pretext.
For these reasons, plaintiff's motion to compel is granted. Defendant shall produce all documents responsive to Request No. 64 on or before April 8, 2005.
SO ORDERED.