Opinion
Civil Action No. 2:05-cv-00675.
July 12, 2006
ORDER
Plaintiff City National Bank filed a Motion for Protective Order on June 29, 2006 seeking relief from depositions noticed by Defendant for July 7, 2006. (Docket # 40.) Defendant filed a Response, and Plaintiff replied. (Docket ## 41, 44.) Meanwhile, on July 7, 2006, Plaintiff filed its Motion for Summary Judgment, which is pending before the Honorable John T. Copenhaver, Jr. (Docket # 42.) The court notes that Defendant's Response to this dispositive motion is due on July 21, 2006, and that the parties are desirous of a ruling on the Motion for Protective Order before that deadline. (Docket # 18.)
The Scheduling Order in this matter set a discovery deadline of June 16, 2006, and a dispositive motions deadline of July 7, 2006. (Docket # 18.) On June 29, 2006, Defendant noticed the depositions of three (3) of Plaintiff's employees for July 7, 2006. (Docket ## 37, 38, 39.) Plaintiff objected and filed the instant Motion for Protective Order because this date was beyond the discovery deadline, because Plaintiff's dispositive motions were due on that same date, and because Plaintiff's counsel (and possibly its employees) had other commitments on that date. (Docket # 40, p. 1-3.) Defendant responds that Plaintiff's counsel had previously agreed to the depositions, but then failed to provide dates. Defendant argues that Plaintiff should be made to adhere to his promise now, regardless of these objections. (Docket # 41.)
The court has reviewed the parties' filings, together with the exhibits and affidavits evidencing their communications surrounding these issues. (Docket ## 40; 41 and Exhibits A, B C thereto; docket # 44.) Defendant's counsel's Memorandum of May 31, 2006 indicates that he requested dates from Plaintiff's counsel on that date, just over two weeks before discovery terminated. (Docket # 41, Exhibit A.) Defendant's counsel argues that he and Plaintiff's counsel discussed dates for depositions on June 13, 2006, three days before discovery terminated. (Docket # 41, p. 2.) In response, Plaintiff's counsel argues that Defendant's delay in seeking these depositions precluded their scheduling prior to the discovery and dispositive motions deadlines. (Docket # 41, Exhibit C, p. 10.) Plaintiff's counsel further states that he never agreed to waive or extend the deadlines contained in the Scheduling Order. (Docket # 41, Exhibit C, p. 8.)
The docket sheet reveals that Defendant did not notice any depositions until June 29, 2006, well after the June 16, 2006 discovery deadline. (Docket ## 37, 38, 39; 18.) According to its own submissions, Defendant's earliest attempt to secure deposition dates occurred on May 31, 2006, perilously close to this deadline. (Docket # 41, Exhibit A.)
The original Complaint herein was filed on August 18, 2005. (Docket # 1.) Thus, Defendant had months upon months to conduct discovery, yet pursued absolutely none until the eve of the June 16 deadline. Having made that choice, Defendant cannot rightfully complain against Plaintiff for failing to produce its witnesses within a two-week time frame at the end of discovery, or for refusing an agreement to extend the deadline. Defendant argues that Plaintiff's counsel led him to believe the deponents would be produced, and then failed to provide dates. (Docket # 41, p. 2-3.) However, even taking each of Defendant's allegations as true, these do not change the fact that it was Defendant's own lack of diligence which created the deadline predicament.
Strangely, while the parties discussed modifying the dispositive motions deadline, they never moved to do so. (Docket # 41, Exhibit C, p. 6-7.) Nor did Defendant move to extend the discovery deadline. Either of these requests, if granted by the presiding District Judge, would have alleviated the current situation. However, as the docket stands now, and for reasons above, the court finds Plaintiff's motion well-founded. The court hereby GRANTS Plaintiff's Motion for Protective Order (docket # 40) and ORDERS that the deposition notices be STRICKEN WITHOUT PREJUDICE.
The Clerk is instructed to transmit copies of this Order to counsel of record.