Opinion
CIVIL ACTION NO: 02-2982, SECTION: "J" (1)
January 14, 2003
MINUTE ENTRY
Before the Court is defendant's Motion to Review Magistrate's Order set for hearing on an expedited basis. In his motion, defendant moves to review the Magistrate Judge's January 13, 2003 order denying defendant's previous Motion to Quash Notice of Deposition and Subpoena. The Court conducted oral argument on the motion by telephone on Tuesday, January 14, 2003.
Having reviewed the record and considered the memoranda and argument of counsel as well as applicable law, the Court finds that Magistrate Judge's order was "clearly erroneous" and "contrary to law," in that it failed to take cognizance of the applicability of Federal Rule 26(d) to the instant case. See FED. R. CIV. P. 72(a).
Federal Rule 26(d) provides in part: "Except in categories of proceedings exempted from initial disclosure . . . or when authorized under these rules or by order or agreement of the parties, a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)." Emphasis added.
In this case, the attorneys have admitted that they have never had a Rule 26(f) conference, have not made their initial disclosures, have not had a Federal Rule 16 scheduling conference, have not agreed to waive the initial disclosure requirement, and have not agreed on when or how to make their disclosures. And, while the limitation set forth in Federal Rule 26(f) may be altered by court order or stipulation, neither has occurred in this case. Accordingly, plaintiff's scheduling of the deposition, and issuance of a subpoena duces tecum, violates Federal Rule 26(d). Therefore;
IT IS ORDERED that defendant's Motion to Review Magistrate's Order should be and is hereby GRANTED, and accordingly,
IT IS FURTHER ORDERED that the Notice of Deposition of John B. Peuler and Subpoena Duces Tecum for January 14, 2003 is hereby QUASHED; IT IS FURTHER ORDERED that oral argument on defendant's Motion to Disqualify Plaintiff's Counsel (Rec. Doc. 22), currently set for February 5, 2003, is hereby CONTINUED until Friday, February 14, 2003 at 8:30 a.m. IT IS FURTHER ORDERED that counsel shall conduct a Federal Rule 26(f) conference and reschedule the deposition and reissue the subpoena duces tecum to a date not earlier than seven days following the hearing on defendant's Motion to Disqualify Counsel.