Opinion
2:12-cv-0453-KJD-NJK
03-11-2013
BRANCH BANKING AND TRUST COMPANY, Plaintiff, v. SMOKE RANCH DEVELOPMENT, LLC, et al., Defendants.
ORDER
Defendants' Renewed Motion to Extend
Discovery Deadlines (#66)
This matter comes before the Court on Defendants' Motion to Extend Discovery Deadlines (#66). The Court has considered the Defendants' Motion (#66), the Plaintiff's Response (#70), and the Defendants' Reply (#72).
BACKGROUND
The Defendants have requested a 90-day extension of the discovery cut-off date, the deadline for dispositive motions, and the deadline for the proposed joint pre-trial order. Motion to Extend (#66). The Defendants argue that additional time is needed for (1) the return on Defendants' DOJ subpoena, (2) the return on Defendants' Equisource subpoena, (3) redeposing Tamara Stidham, (4) redeposing Ron Fuqua, and (5) redeposing Kendal Britton.
DISCUSSION
Applications to extend discovery deadlines must be supported by good cause for the extension. LR 26-4; Fed.R.Civ.P. 16(b)(4).
Here, the Defendants have requested a 90-day extension of discovery deadlines for two main reasons: (i) the Defendants could not have anticipated that the DOJ and Equisource would not respond to the subpoenas before the deadline; and (ii) the Plaintiffs produced documents relevant to the depositions after the depositions already occurred, and therefore, continued depositions are necessary. A. Subpoenas
Under Rule 45(c)(3)(A)(I), non-Parties are also entitled to "reasonable time" to comply with subpoenas. Courts must determine what is reasonable based on the circumstances of each particular case. Fernandez v. Penske Truck Leasing Co., 2013 WL 438669, *1 (D. Nev. Feb. 1, 2013); citing Paul v. Winco Holdings, Inc., 249 F.R.D. 643, 656 (D.Idaho 2008); see also Todd v. LaMarque, C 03-3995 SBA, 2008 WL 564802, *3 (N.D. Cal. Feb. 28, 2008) (finding 20 days was a reasonable amount of time to require production of investigation documents and appear in court); Watson v. State of Montana, 2006 WL 2095420 (D. Mont. July 27, 2006) (finding subpoena which ordered production of a large quantity of documents in one business day - the day before trial - was unreasonable).
Here, the Defendants issued their subpoenas three weeks before the close of discovery. Concerning the DOJ subpoena, the DOJ has requested additional time to produce the requested documents because the Assistant United States Attorney who is handing the response to the subpoena left on a two-week vacation a week before the production was due. Declaration of William Schuller at 2, attached as Exhibit A to Motion (#66). As for the Equisource subpoena, the Defendants have attempted to contact Equisource, but have yet to receive a response. Thus, the Defendants argue, they could not have predicted that they would not receive responses to their subpoenas in the allotted time.
However, the Defendants have not provided the Court with what documents were requested with either subpoena. Indeed, the Court has no information concerning what documents, nor how many documents, were requested. Accordingly, the Court cannot determine whether three weeks was a reasonable amount of time to respond. Due to this lack of information, the Court finds that an extension of discovery to in order to receive the subpoena returns is not appropriate at this time. B. Continued Depositions
1. Mr. Ron Fuqua and Ms. Tamara Stidham
The Defendants assert that Mr. Ron Fuqua and Ms. Tamara Stidham must be re-deposed because the Plaintiff did not make certain disclosures until February 8, 2013, which was after Furqua and Stidham had been deposed. This argument is not convincing. The Plaintiff's disclosures, which were made on February 8, 2013, were due on February 8, 2013. Thus, it could not have been a surprise to the Defendants when they received the disclosures on February 8, 2013. Accordingly, these disclosures are not good cause for an extension of the discovery deadlines.
2. Kendal Britton
Concerning the deposition of Kendal Britton, the Defendants point to the fact that the Plaintiffs did not disclose the Summary Appraisal Report completed by Kendal Britton until February 12, 2013, which was after Britton was deposed. The Defendants assert that they now need time to depose Britton on the newly-disclosed Appraisal, because the Plaintiff may have used the appraisal to receive a higher reimbursement from the FDIC. The Plaintiffs admit that they did not disclose the report until February 12, 2013, but claim that they did so inadvertently. The Plaintiffs also claim that the appraisal has "little impact" on the current litigation; thus it does not justify re-opening discovery.
When determining whether good cause exists to re-open discovery, the Court considers the following factors:
1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to relevant evidence.U.S. ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir. 1995) vacated on other grounds, 520 U.S. 939 (1997) (citing Smith v. United States, 834 F.2d 166, 169 (10th Cir.1987).
Here, all but the second factor weigh in favor of finding good cause. First, trial is not imminent. Trial has not yet been set and the joint pre-trial order is not due until April 17, 2013. Second, the Plaintiff would not be prejudiced by a small re-opening of discovery for the purpose of re-deposing one witness. It was at the Plaintiff's error that the Defendants did not have all the necessary documents for the initial deposition, and the Plaintiff therefore should have recognized that the deposition would need to be continued. Third, the Defendants scheduled and conducted Britton's deposition within the deadlines established by the Court, and thus were diligent. Fourth, the Defendants could not have foreseen that the Plaintiff would inadvertently fail to disclose the appraisal until after Britton's deposition. Fifth, the Defendants have represented to the Court that, upon information and belief, they believe re-deposing Britton will lead to relevant evidence, and the Plaintiff concedes that the appraisal does have an impact on the current litigation.
Thus, having considered these factors, the Court finds that good cause exists to re-open discovery for the limited purpose of re-deposing Britton, and that the other discovery deadlines should also be extended accordingly. However, scheduling and conducting the continued deposition should not take the requested 90 days. Rather, the Court finds that the good cause to re-open discovery only extends to a 21 day re-opening of discovery, for the limited purpose of continuing the deposition of Britton. A longer re-opening of discovery would highly prejudice the Plaintiff and its right to a timely resolution of this matter. ... ... ... ...
CONCLUSION
Based on the foregoing, and good cause appearing therefore,
IT IS HEREBY ORDERED that the Defendants' Motion to Extend Discovery Deadlines (#66) is GRANTED in part;
IT IS FURTHER ORDERED that discovery is re-opened for 21 days for the limited purpose of continuing the deposition of Mr. Kendal Britton;
IT IS FURTHER ORDERED that the remaining discovery deadlines are extended as folows:
• Discovery Cut-Off: April 1, 2013
• Deadline for Dispositive Motions: May 1, 2013
• Proposed Joint Pre-Trial Order: May 31, 2013
_______________
NANCY J. KOPPF
United States Magistrate Judge