Opinion
CIVIL NO. 1997/20, (CONSOLIDATED FOR DISCOVERY)
November 7, 2003
ORDER GRANTING PLAINTIFF'S MOTION FOR PROTECTIVE ORDER AND WITH REGARD TO DEFENDANTS' MOTION TO COMPEL DEPOSITION OF PLAINTIFFS LIABILITY EXPERTS
TO: Lee J. Rohn, Esq.Richard Prendergast, Esq.)Yvette Ross-Edwards, Esq.) Both of Moore Sopuch, P.C.
THIS MATTER came for consideration on Plaintiffs' Motion for a Protective Order with regard to depositions of Plaintiffs' (liability) expert witnesses noticed for November 11, 2003 and November 12, 2003. Because of time considerations, no response is required. Plaintiff's motion directly impacts Defendants' pre-pending motion to compel depositions of Plaintiffs' liability experts (etc.) That motion will also be ruled upon herein without requirement of response from Plaintiffs.
The depositions are scheduled on November 11, 2003 and November 12, 2003. I will be off island from November 8, 2003 through November 12, 2003.
Plaintiffs contend in their motion that on October 20, 2003, Defendants sought to depose Plaintiffs' (liability) expert witnesses prior to November 10, 2003 so that Defendants'(liability) expert witness' report could be provided by the November 16, 2003 deadline therefor. Plaintiffs state that their attorneys are unavailable to do so and have no dates available prior to November 16, 2003. Plaintiffs argue that all(liability) expert witness depositions should be taken after Defendants' (liability) expert witnesses have been named and their reports provided. Plaintiff cites the Court's Scheduling Order and local custom (to save travel costs) in support of such view.
Defendants' motion requests that the Court compel depositions of Plaintiffs' liability experts and to extend the time for Defendants to provide their liability expert reports. Defendants maintain that pursuant to LRCi 26.3 Plaintiffs' expert witness' opinions at trial may be expanded at deposition and that unless and until Defendants take the depositions of Michael Smith and Patrick Clyne, they will not and cannot know the full substance of their opinions. Defendants argue that the opinions of their experts and the type of experts they retain are largely dependent on the opinions of Plaintiffs' experts.
The Order dated June 20, 2003 provided that Plaintiff's liability experts would be named and copies of their opinions provided by October 15, 2003; Defendants liability experts would be named and copies of their opinions provided by November 15, 2003; and that all experts' depositions on the issue of liability would be completed by December 15, 2003. Fed.R.Civ.P. 26(d) provides no rule of priority in discovery and that unless ordered or agreed otherwise, methods of discovery may be used in any sequence.
As provided in LRCi 26.2(b)(1), "cooperative discovery arrangements in the interest of reducing delay and expense are encouraged." Unilaterally noticed depositions are inimical to such procedure and lead to situations like the one at hand. See Seabrook Medical Systems, Inc. v. Baxter Health Care Corp., 164 F.R.D. 232, 233 (S.D. Ohio 1995),
. . . The court therefore finds . . . as a matter of professional courtesy, and as a means to avoid future scheduling conflicts . . . that, when making arrangements for third party depositions, counsel for both sides should jointly call the third party deponent to schedule that party's deposition. When such calls cannot be made due to the third party's unavailability, . . . counsel for both sides should contact each other and jointly agree to a deposition date. Only then should the deposition subpoena issue. What needs to occur is quite simple: counsel should discuss and agree to a deposition date before the issuance of the subpoena, not after, (emphasis added).
See also In Re: Braniff, Inc., Debtor, 1992 WL 261641 *12 (U.S. Bank. R., M.D. Fla.) with regard to cooperative scheduling upon consultation.
Upon consideration of the above, the Court finds that Plaintiffs are entitled to a protective order with regard to Defendants' unilaterally noticed depositions on November 11 and 12, 2003. The Court further finds that Defendants have made timely application to depose Plaintiffs' liability experts prior to providing their own expert witness reports but have been frustrated in such regard by the unavailability of Plaintiffs' attorneys. The Court concurs with Plaintiffs that customarily all expert witness depositions are taken subsequent to the provision of both sides expert witness opinions, however nothing prohibits Defendants from proceeding elsewise.
Accordingly, it is hereby; ORDERED as follows:
1. Plaintiff's Motion for Protective Order is GRANTED and the parties shall promptly confer and re-schedule the depositions of Messrs. Smith and Clyne on a mutually acceptable date (or dates) by December 10, 2003.
2. Defendants' liability expert witnesses shall be named and copies of their opinions provided within fourteen (14) calendar days of the completion of the latter Smith/Clyne deposition.
3. All expert depositions on the issue of liability will be completed by January 31, 2004.
4. Mediation shall be scheduled to take place by February 17, 2004 although it remains strongly advised that the parties confer and schedule mediation and at an early date.
5. The status conference scheduled on January 7, 2004 at 2:00 P.M. shall be continued to February 18, 2004 at 11:00 A.M. (an earlier date maybe set upon notice of earlier mediation).