Opinion
CIVIL NO. 01-168 BB/LFG-ACE
September 26, 2001
ORDER EXTENDING DEADLINES AND DENYING OUT-OF-TIME DEPOSITION
THIS MATTER is before the Court on a telephonic conference call. Plaintiff, Ray G. Besing (Besing), through counsel, requested a telephonic hearing to extend certain discovery deadlines and to authorize the out-of-time deposition of a former party, Lightning Source, Inc.
The request to extend the discovery deadline for particular deponents was occasioned as a result of the disruption of airline travel and counsels schedules due to the national tragedy occurring in New York, Washington and Pennsylvania on September 11, 2001.
All parties agree that case management deadlines should be extended and that the parties be permitted to take some additional depositions for which arrangements had been made within the original case management deadline, but which had not been taken. The parties agree to take the deposition of Besing and Fed.R.Civ.P. 30(b)(6) depositions of Advanced Marketing Technologies, LLC, and Hirons Company Advertising. The parties also agreed to the 30(b)(6) deposition of Ingram Book Group, Inc., together with the deposition of Meg Blissell and two defense experts, Ken Brooks and Steven Cary, as well as with Besings expert Henry Morrison.
The Court finds good cause to extend discovery in this case for the taking of these depositions. The acts of terrorism perpetrated on the United States on September 11, 2001, caused major disruptions in airline travel and stranded Americans all over the country, including some attorneys in this case. Significant travel restrictions continue to impede the publics ability to freely travel, and have adversely affected the parties abilities to produce deponents for formal discovery, thus requiring that the Court allow flexibility in the discovery schedule. Discovery deadlines for these depositions will be extended in a stipulation to be filed by the parties. The parties negotiated a proposed case management plan authorizing extended discovery and a new deadline for motions relating both to discovery and non-discovery matters. The Court directs the parties to file a stipulation concerning the case management deadlines. The stipulation should be filed within ten days and should provide that completed motions must be submitted to the Court no later than sixty days prior to the current pretrial conference setting. Out-of-Time Deposition
At the telephonic conference, the Court announced that it would authorize the requested deposition.
However, the Courts further reflection on the request, in light of Plaintiffs prior failures to take certain actions within the time provided by law, convinces the Court that a reversal of its ruling is appropriate.
Besing also requests the opportunity to take the out-of-time deposition of Lightning Source, Inc. This proposed deponent was previously named as a party defendant, but was subsequently dropped from the litigation. Prior to being dismissed as a party, Lightning Source made its Fed.R.Civ.P. 26 initial disclosures. Thus, all parties knew from the commencement of the litigation that Lightning Source had information relevant to the parties claims and defenses.
It is undisputed that Besing was aware of Lightning Sources involvement to some extent in this litigation. Indeed, in Besings Initial Pretrial Report, p. 16, ¶ t, he identified the individuals whose depositions would be taken or from whom discovery would be sought in this litigation. That list includes, Officers and employees of Ingram, Lightning, and AMT who are believed to have discoverable information . . . .
If this was not enough, Lightning Source made its Rule 26 disclosures. Those disclosures demonstrate the presence of discoverable information. Thus, shortly after the issues were joined in this case, Besing was aware of the need to engage in discovery and knew that Lightning Source was an entity that had information relevant to the claims and defenses. Yet, Besing did nothing to proceed with necessary discovery.
Besings counsel offers as justification for not taking the deposition of Lightning Source in a timely manner the fact that Besing was pro se, now has new counsel, and that counsel was unaware, at least until recently, of the relationship between and among the various defendants. Besings counsel also argues that the parties have arranged to be present in Tennessee to take another deposition, and that Tennessee is the home state of the proposed deponent, Lightning Source.
Therefore, the present parties would not incur additional travel costs by allowing the deposition to go forward. Defendant Ingram Book Group, Inc. objects to allowing the out-of-time deposition, contending that Besing was aware from the outset of the need to take this deposition and has offered insufficient justification for an out-of-time deposition.
For the reasons stated in its prior Memorandum Opinion and Order of May 11, 2001 [Doc. 41, p. 3], the Court rejects Besings argument that special consideration should be afforded him because he was a pro se litigant. While the unschooled in law argument is helpful to many pro se litigants, it is simply inapplicable here. Besing is an attorney who maintained an active practice for more than thirty years. He is no stranger to pro se litigation [Doc. 41, p. 3 n. 3]. As an attorney, Besing knows, or reasonably should have known, of his obligations to commence and complete discovery in a timely fashion.
While Besings counsel entered the litigation late, no sufficiently good argument was presented as to why the Courts case management plan should be disregarded, nor did Besings counsel demonstrate any convincing reason why Besing did not proceed with the deposition of Lightning Source within the time provided by the Courts prior scheduling orders.
Of greatest concern is the fact that this is not Besings first failure to comply with time deadlines. Even at the Rule 16 conference, the Court was apprised that Besing failed to make disclosures within the time provided by the rules; the Court previously issued an order overlooking Besings failure to timely make and file a jury demand [Doc. 41]. Granting Besings present request to take a deposition out of time, even where Defendants cannot demonstrate that they would be prejudiced by the late deposition, establishes two standards of practice — one for Defendants who are required to comply with the rules, and a totally different standard for Besing who is given a pass each time he fails to comply. The unequal application of the rules intended to govern the expeditious, efficient and economical processing of cases is unwarranted. These rules should be fairly and equally enforced.
The Court concludes that Besing failed to complete discovery within the time provided by the Court and has failed to show cause why his non-compliance should be excused. Besing failed to take Lightning Sources deposition within the time provided by the Court, and Defendants have not agreed to the out-of-time deposition. Accordingly, the Court rejects Besings request to take this deposition.