Opinion
No. CIV 96-0098 PK/LFG
July 12, 2002
REVISED SCHEDULING ORDER
On July 9, 2002, The Honorable Paul Kelly entered a Memorandum Opinion and Order [Doc.155], denying Honeywell, Inc.'s ("Honeywell") Motion to Dismiss [Doc. 78]. Also on that date, Judge Kelly filed another Order [Doc. 156] in which he: (1) overruled Relator Harold M. Tate's ("Tate") Objections [Doc. 110] to the Magistrate Judge's Order granting Honeywell's Motion to Unseal Disclosure Statement and to Compel Discovery; and (2) denied Tate's Motion [Doc. 117] to Reconsider the Magistrate Judge's Memorandum Opinion and Order on Tate's Motion to Compel Further Responses.
Because certain discovery in this case was put on hold pending resolution of the above-noted objections and motion to reconsider, and since the Motion to Dismiss has been denied, the Court enters the following Revised Scheduling Order, to bring to completion the discovery matters affected by the recent ruling.
A. Tate's Motion to Compel [Doc. 98]
In his Motion to Compel [Doc. 98], Tate sought production of a number of documents and answers to interrogatories. In an Order [Doc. 113] dated February 19, 2002, the Magistrate Judge granted Tate's discovery motion in part and denied it in part. Certain discovery materials, including a Vaughn index, were ordered to be produced within 15 days.
On March 10, 2002, Tate filed his motion to reconsider this order. Judge Kelly denied the motion. The parties are obligated by D.N.M.LR-Civ. 37.3 to comply with all discovery orders pending appeal from or objection to the order. The Court presumes the parties have so complied; however, to the extent it has not already done so, Honeywell must now provide the discovery previously compelled in the Court's February 19 Order. Thus, if the discovery was not previously produced, it should be produced within 15 days of the filing of this order.
B. Honeywell's Motion to Unseal and Compel [Doc. 88]
Honeywell's Motion to Unseal Tate's Disclosure Statement and to Compel Discovery [Doc. 88] was granted in the Magistrate Judge's Order [Doc. 105] dated January 28, 2002. That order contained the following directives:
1. that Tate's disclosure statement would be unsealed in the court file, and that Tate must produce a copy of the statement to counsel for Honeywell, within 10 days of the date of the order;
2. that the documents and materials sought in Honeywell's Requests for Production Nos. 2 and 3 were to be produced within 20 days of the date of the order; and
3. that "Honeywell will be permitted to serve written discovery on Tate in order to obtain answers to the deposition questions that Honeywell identified in its Motion, or Honeywell will be permitted to reconvene Tate's deposition as to the specific questions and related topics." No deadlines were given for this discovery.
The second category above includes documents consisting of notes of any conversations between Tate and any attorneys, investigators, and paralegals employed by the U.S. regarding Honeywell, and any documents received by Tate from any such attorneys, investigators, and paralegals. Tate objected to these requests, citing attorney work product privilege, attorney-client privilege, and joint interest privilege. The Court found these arguments unpersuasive and ordered disclosure.
This presumably includes contacts between Tate and Agent Jeffrey Fauver of the Department of Defense.
On February 7, 2002, Tate filed objections to the January 28 order. The parties later asked for and received Court permission to put certain discovery on hold, as follows:
Honeywell asserts in its Unopposed Motion to Continue Certain Discovery Motions [Doc. 140] that, in November and December of 2001, Honeywell served requests on the Department of Defense, seeking permission to depose Agent Jeffrey Fauver. These requests were denied by the Department of Defense. Nevertheless, Honeywell was able to secure the agreement of the United States Attorney's Office for this District, to allow Honeywell to subpoena Agent Fauver for deposition, to be followed by a notice of non-appearance and motion for protective order on behalf of the agent, triggering Honeywell's right to move to compel discovery. The United States Attorney's office accepted service of a subpoena for Agent Fauver's deposition, the government filed a notice of non-appearance [Doc. 126], as agreed, stating that the U.S. would file a motion for a protective order "forthwith." No such motion was filed, pursuant to a subsequent agreement between itself and Honeywell.
On May 6, 2002, Honeywell filed the unopposed motion [Doc. 140] to continue all motions by Honeywell or the United States regarding the deposition of Agent Fauver, pending resolution of Tate's objections to the January 28 order. Honeywell noted that discovery motion packages would be due June 3, but it requested that the deadline be continued with respect to discovery of Agent Fauver, stating:
"4. Upon further review, Honeywell has determined that the need to pursue Agent Fauver's deposition may be obviated by the Court's ruling on Relator's objections to the Magistrate Judge's Order, and any discovery that the Court allows when it rules on those objections. Consequently, Honeywell requests that motion practice relating to its discovery to Agent Fauver be postponed pending the District Court's ruling on Relator's objections and any attendant discovery.
"5. Continuing all motions relating to Honeywell's discovery to Agent Fauver may save time and expense for the Court and the parties because the District Court's resolution of Honeywell's motion to compel discovery from Relator may eliminate the need for other discovery and motion practice.
"6. Honeywell acknowledges and agrees that, by virtue of not opposing this motion, the United States has not waived any rights, privileges or other protections it might raise should Honeywell continue to seek discovery from Agent Fauver after the Court has ruled on the objections. The United States expressly reserves its right, privileges, and other protections with regard to same."
The Court granted this motion on May 10, 2002, in Order [Doc. 141], directing that "all motions relating to Honeywell's discovery to Agency Jeffrey Fauver shall be continued pending the District Court's ruling [on Tate's objections] . . . and the completion of any attendant discovery. All such motions shall be filed within ten days of entry of an order denying discovery or the completion of any discovery ordered or permitted by the Court."
As noted above, Judge Kelly, on July 9, 2002, rejected Tate's objections to the January 28 order. That ruling revives the following obligations and deadlines to the extent they have not already been met:
1. If he has not already done so, Tate must produce a copy of his disclosure statement to Honeywell within 10 days of this order;
2. Tate must respond to the requests for production, including any information related to Tate's communications with Agent Fauver, within 20 days of this order;
3. With regard to Honeywell's discovery directed to Tate, Honeywell will be permitted to serve the number of interrogatories agreed upon, or the maximum authorized by federal rules (25), and to depose Tate. No deadline was previously set for this discovery, but the Court will set a deadline of 20 days to serve interrogatories, and a deadline of 60 days to take Tate's deposition;
4. Any discovery motions involving Agent Fauver must be filed "within 10 days of the . . . completion of any discovery ordered or permitted by the Court." Thus, if there are any discovery disputes remaining involving Agent Fauver, motions must be filed within 10 days. Defendants may proceed with Agent Fauver's deposition. The Court will authorize that it be taken within 60 days.
Order
IT IS THEREFORE ORDERED that, to the extent they have not already done so, the parties are directed to resume discovery under the following deadlines:
1. Honeywell must provide all discovery as directed in the Court's order of February 19, 2002 [Doc. 113], on or before July 26, 2002;
2. Tate must produce a copy of his disclosure statement to counsel for Honeywell, as directed in the Court's order of January 28, 2002 [Doc. 105], on or before July 25, 2002;
3. Tate must produce all documents sought in Honeywell's requests for production, as directed in the Court's order of January 28, 2002 [Doc. 105], on or before July 31, 2002;
4. The interrogatories to Tate, as directed in the Court's order of January 28, 2002 [Doc. 105], must be served on or before July 31, 2002, and the reconvening of Tate's deposition, as described in that Order, must occur on or before September 9, 2002;
5. Any deposition of Agent Jeffrey Fauver must be taken on or before September 9, 2002. Motions, if any, relating to discovery involving Agent Jeffrey Fauver, as discussed in the Court's order of May 10, 2002 [Doc. 141] must be filed and served on or before July 31, 2002, in the case of the production ordered in ¶ 3 above and, in the case of his deposition, if it occurs, within 10 days of that deposition.