Opinion
Civil Action No. SA-04-CA-0303 XR.
June 22, 2005
ORDER GRANTING MOTION TO COMPEL IN PART
The matter before the Court is plaintiff's motion to compel and defendants' response thereto (docket entries 52 and 54). No reply has been filed.
The motion concerns four depositions of current and former officers of BCE, which were scheduled to occur in Montreal between May 1 and June 3, 2002. On May 18, nine days before the May 23 scheduled deposition of the first of these deponents and two weeks before the June 1 deadline for completion of discovery and filing of dispositive motions, plaintiff filed a motion requesting leave to amend his complaint. On May 20 defendants notified plaintiff that the May 23 deposition would need to be moved because of a scheduling conflict with the deponent. Importantly, defendants also communicated their intent not to make the other three deponents available for deposition until the pending motion for leave to amend was resolved. Plaintiff then filed this motion on May 26, just days before the expiration of discovery, asking the court to compel the depositions take place in San Antonio within ten days.
Defendants argue that submitting its current and former officers to deposition to testify concerning matters beyond those claims asserted in the then active pleading may have been deemed to be a waiver of otherwise valid objections to the proposed expansion of claims. Defendants also argue that the motion to leave to file an amended pleading two weeks before the close of discovery and after the date by which to amend pleadings was without justification. Finally, defendants argue that insofar as plaintiff asks the court to grant the motion and order the deponents to travel from Montreal to San Antonio, such request is inconsistent with prevailing authority addressing the place of depositions of corporate representatives.
While defendants' concern about the effect the proposed amended pleading would have on the scheduled depositions is understandable, their unilateral decision to cancel the depositions is inexcusable. An appropriate response may have included a request addressed to the Court by way of a motion for protection, for permission to suspend the deposition schedule pending resolution of the motion for leave. Alternatively, defendants could have asked the Court to limit the scope of the deposition to only those claims asserted in the most recently authorized amended complaint. Defendants could have asked the Court to continue the discovery deadline pending disposition of the motion for leave, so that the depositions could be conducted timely and with clarity concerning the scope of the claims.
Although plaintiff failed to specify the rule of procedure which authorizes his motion, it would appear to fall within the scope of Federal Rule of Civil Procedure 37. Clearly, plaintiff is entitled to an order directing the deponents to appear. Nevertheless, plaintiff has not justified his unusual request that the Court require deponents to travel to San Antonio from their home and place of business in Canada. Plaintiff states in his motion that trips to Canada were planned and schedules arranged to accommodate those depositions, but he does not represent that he incurred expenses as a result of the cancelled depositions and he does not request reimbursement of same through this motion. Finally, plaintiff shares a certain degree of responsibility for the attempt to assert new claims at the eleventh hour, when important depositions were about to be conducted, on the eve of the June 1 discovery deadline. Since the time of the filing of this motion, the request for leave to file an amended complaint has been denied, with the Court noting the late filing as being without good cause shown.
Accordingly, it is ORDERED that the motion to compel is GRANTED conditioned on the parties successfully petitioning the Court for an extension of the discovery deadline. All other requested relief is ORDERED DENIED.