Opinion
Case No.: 3:13-cv-042
06-09-2014
EDWIN J. SWANN, et al., Plaintiffs, v. TIME WARNER ENTERTAINMENT COMPANY, L.P., Defendant.
Magistrate Judge Michael J. Newman
(Consent Case)
ORDER: (1) GRANTING PLAINTIFFS' MOTION TO AMEND THE CALENDAR
(DOC. 24); (2) AMENDING THE CALENDAR ACCORDINGLY; AND (3) DIRECTING
DEFENDANT TO RESPOND TO PLAINTIFF'S INTERROGATORY 10
This is a consent case for which Plaintiffs, through counsel, now move to amend the Calendar Order. Doc. 24. Specifically, Plaintiffs seek to amend (1) the discovery deadline, (2) the deadlines to identify primary and rebuttal experts, and (3) the dispositive motions deadline. Id. at PageID 135.
As the Calendar Order now reads, discovery is to close on June 12, 2014 and dispositive motions are to be filed on or before July 29, 2014. Plaintiffs' primary expert disclosures were to occur in April 2014, but none were identified. (Accordingly, Defendant has not identified experts either.) The instant motion was filed on April 14, 2014, the date Plaintiffs were to identify their primary experts.
The discovery deadline was recently extended to June 27, 2014 for the limited purpose of deposing the named Plaintiffs and others. Doc. 30.
The Court held a telephone conference with the parties on April 16, 2014, during which time Defendant's counsel advised the Court that it opposed the motion. The Court ordered that the motion be briefed, and thereafter Defendant filed a memorandum in opposition (doc. 25) and Plaintiffs filed a reply (doc. 26). The Court has carefully considered all of these documents as well as the parties' arguments. For the reasons that follow, the Court finds good cause exists to grant the motion, and issues an amended Calendar Order allowing both sides an opportunity to identify their experts and complete discovery.
I.
This case is brought by seven African American plaintiffs against their former employer, Time Warner Entertainment Company, L.P., alleging wrongful termination in violation of Title VII and corresponding provisions of Ohio law. Doc. 4. Plaintiffs, who were employed by Defendant as service technicians, allege that Defendant utilized employment practices that had a disparate impact and were racially discriminatory. Id. at PageID 42-46.
The relevant history of this matter merits discussion.
The Court originally entered a Calendar Order on March 21, 2013, which, inter alia, established a discovery deadline of March 14, 2014. Doc. 14 at PageID 94-95.
The first of several informal discovery telephone conferences was held on April 30, 2013 at the request of Defendant's counsel. See doc. 16 at PageID 98. Counsel advised the Court that Plaintiffs' initial disclosures were deficient in certain respects, and that they had yet to receive Plaintiffs' discovery responses. Id. Plaintiffs' counsel sought, and were granted, a seven-day extension, until May 7, 2013, to produce all outstanding initial disclosures and discovery responses. Id.
The Court met with counsel for both sides, by telephone, on May 9, 2013 and was advised the parties' discovery dispute was resolved.
The Court held a second discovery conference on October 17, 2013 at the request of Defendant's counsel. See doc. 17 at PageID 100. In an Order issued following the call on November 1, 2013, Plaintiffs were ordered to produce a privilege log concerning pre-suit communications and to also produce their IRS tax records. Id. at PageID 100-01. Plaintiffs were further ordered to disclose the identity of all medical providers from whom they had received medical or mental health treatment for the two-year period preceding the filing of this suit. Id. at PageID 101.
The Court held two additional telephone conferences with the parties on December 13 and December 20, 2013 to address compliance with the November 1st Order. During the conference call on December 13, Plaintiffs were again ordered to produce a privilege log, IRS tax forms, and information on medical providers, all of which remained outstanding. Plaintiffs advised the Court during the December 20th conference that they had produced the outstanding documents as to five of the seven Plaintiffs. The remaining documents were produced shortly thereafter.
Plaintiffs served their only set of discovery requests on November 19, 2013. Doc. 26 at PageID 262-63. On December 10, 2013, Plaintiffs granted Defendant a thirty-day extension in which to respond. Doc. 26 at PageID 262-63; doc. 26-1 at PageID 273; doc. 26-2 at PageID 279-80. Defendant's responses were then due by January 22, 2014, eight days past the then-existing expert witness deadline of January 14, 2014. See doc. 14 at PageID 95; doc. 25 at PageID 143.
In the December 10 correspondence granting the response extension, Plaintiffs indicated that their experts would need approximately thirty days to produce a report and solicited Defendant's consent to an extension of the expert witness deadline. Doc. 26-2 at PageID 279-80. Defendant advised that it did not object to an extension, and asked Plaintiffs to draft a joint motion. Id.
On January 14, 2014, the day of the expert witness deadline and over a month after receiving Defendant's consent, Plaintiffs sent the proposed motion to Defendant for a ninety-day extension of all case deadlines. Id. at PageID 281-82. Defendant indicated that it would not join the motion, but also that it would not oppose it. Doc. 25 at PageID 25-2 at PageID 214; doc. 26-2 at PageID 281-82. Plaintiffs filed the unopposed motion on January 14 (doc. 20), and the Court granted it the next day (doc. 21). The amended Calendar Order, as noted above, set the expert witness deadline for April 14 and the discovery deadline for June 12. Doc. 21 at PageID 127.
Defendant served its responses and produced over 2,800 pages of documents on January 22, 2014. Doc. 26 at PageID 263; doc. 26-1 at PageID 273; doc. 26-2 at PageID 279-80. With regard to one specific interrogatory -- Plaintiff's Interrogatory 10 concerning "service technicians" and "senior service technicians" -- Defendant raised objections. Doc. 26 at PageID 264; doc. 26-4 at PageID 313-15.
On Friday, April 11, 2014, almost three months after Defendant served its responses, Plaintiffs sent a letter identifying the alleged deficiencies in Defendant's responses and separately requested consent to further extending the discovery deadlines. Doc. 25-2 at PageID 219; doc. 26-5 at PageID 339-41. Plaintiffs filed the instant motion on Monday, April 14, and advised the Court that they "attempted in good faith to consult with Defendant and solicit its consent to the extension, but such consultation did not occur." Doc. 24 at PageID 137.
II.
Pursuant to Fed. R. Civ. P. 16(b)(4), a Calendar Order "may be modified only for good cause and with the judge's consent." In the context of amending a Calendar Order to permit additional discovery, the Sixth Circuit has identified multiple factors meriting consideration:
Factors that should be considered include: (1) when the moving party learned of the issue that is the subject of discovery; (2) how the discovery would affect the ruling below; (3) the length of the discovery period; (4) whether the moving party was dilatory; and (5) whether the adverse party was responsive to prior discoveryDowling v. Cleveland Clinic Found., 593 F.3d 472, 478 (6th Cir. 2010). As further elaborated by the Sixth Circuit, "[t]he overarching inquiry in these overlapping factors is whether the moving party was diligent in pursuing discovery." Id. "The primary measure of Rule 16's 'good cause' standard is the moving party's diligence in attempting to meet the case management order's requirements." Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (quoting Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001). "A district court should also consider possible prejudice to the party opposing the modification." Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 830 (6th Cir. 2005).
requests.
Plaintiffs argue that an extension of the expert witness deadline is warranted because -- by not responding to their Interrogatory 10 -- Defendant has prevented them from receiving the information necessary for their experts to produce a report in support of their disparate impact claim. Doc. 24 at PageID 136. Plaintiffs advise the Court that the instant motion to amend the Calendar Order is not an attempt to collaterally raise the issue of Defendant's response to Interrogatory 10, see doc. 26 at PageID 260, although the Court sees that issue to be unavoidably intertwined with the extension Plaintiffs seek.
Defendant argues that Plaintiffs were dilatory and therefore fail to demonstrate good cause because of the time it took Plaintiffs to dispute Defendant's responses, i.e., almost three months after service and just days prior to the April 14th expert disclosure deadline. Doc. 25 at PageID 145-46. Defendant also contends that the discovery Plaintiffs seek will not support their disparate impact claim and is not permitted in this case. Id. at PageID 146-49.
III.
The Court addresses the Dowling factors in turn.
A. When Plaintiffs Learned of the Issue
By Plaintiffs' admission, they learned of the issue when Defendant served its responses on January 22. Doc. 26 at PageID 266. Defendant argues that Plaintiffs' delay in not addressing the responses until April 11 is of sufficient length to justify denying the motion. Doc. 25 at PageID 145-46. The Sixth Circuit has held, in the context of a Rule 56(f) analysis, that "a delay of two-and-a-half months is dilatory" when the movant seeks to extend the discovery deadline. Audi AG v. D'Amato, 469 F.3d 534, 542 (6th Cir. 2006).
Plaintiffs argue that this situation is distinguishable because the information they seek has already been requested; they do not seek an extension to serve additional discovery requests. Doc. 26 at PageID 266. The Court finds this point to be well taken.
B. How Discovery Would Affect the Ruling
Defendant argues that Plaintiffs have failed to identify a basis for an individual disparate impact claim, and that Plaintiffs are precluded from utilizing pattern and practice discovery methods in this case because they proceed in individual capacities. Doc. 25 at PageID 146-49. Plaintiffs argue that this factor should not be part of the District Court's analysis. Doc. 26 at PageID 267.
The Court agrees that it is not appropriate to address this element at this stage in the litigation. See Serrano v. Cintas Corp., No. 04-40132, 2010 WL 1417802, at *4 (E.D. Mich. Apr. 5, 2010) ("[T]his factor is largely used by the Sixth Circuit to determine whether the district court's denial of a motion to extend discovery affects other pending issues in front of that court. Therefore, the Court will not consider this factor to weigh in favor of either party to this motion."). To that end, the Court notes that the discovery period is still open; there are ten noticed depositions that have yet to be conducted; and there are no dispositive motions pending. See doc. 30.
C. Length of the Discovery Period
The discovery period in this case is scheduled to be approximately fifteen months -- from the first discovery request on February 25, 2013 to the current discovery deadline of June 12, 2014. Doc. 21. Defendant argues that the ninety-day extension of discovery deadlines in January 2014, at Plaintiffs' request, should bear on the Court's analysis. Doc. 25 at PageID 149. Plaintiffs stress that the complex nature of their claims justifies the length of the discovery period, and that the instant extension is sought only to allow their expert witnesses to produce expert reports. Doc. 26 at PageID 268.
The Court finds that the length of the discovery period is not directly relevant because Plaintiffs do not seek an extension to serve additional discovery requests. Rather, Plaintiffs seek the extension to produce one or more expert report(s) based on a timely discovery request.
D. Whether Plaintiff Was Dilatory in Seeking Discovery
By Plaintiffs' own admission, they anticipated their experts would need thirty days to complete their reports after receipt of Defendant's responses. Doc. 26-2 at PageID 279. When initially served on November 19, and assuming that Defendant would serve its responses on the December 23 deadline, Plaintiffs' expert witnesses would have had only twenty-two days to formulate their reports before the January 14 expert witness deadline. Plaintiffs also waited until the expert witness deadline, and over a month after receiving Defendant's consent, to move the Court for an extension of the deadline. Docs. 20, 24.
E. Whether Defendant was Responsive to Prior Discovery Requests
With respect to this factor, Defendant notes that it produced over 2,800 pages of documents in discovery. Doc. 25 at PageID 150. The Court is cognizant, however, of Plaintiffs' assertion that -- regardless of such extensive document production -- without a complete response to Interrogatory 10, Plaintiffs cannot identify primary experts.
F. Plaintiffs' Diligence and Prejudice to Defendant
Plaintiffs advise the Court they intended to resolve their discovery concerns via extrajudicial means, and hoped that Defendant would consent to the extension, all in an attempt to avoid filing a motion with the Court. Doc. 26 at PageID 260. Plaintiffs do not explain their almost three-month delay in raising the issue with either Defendant or the Court. While the Court is appreciative of Plaintiffs' desire to pursue extrajudicial means of resolution, waiting until the eve of the expert witness deadline to raise the issue with Defendant's counsel does not demonstrate diligence in seeking to resolve the issue. That delay also served to eliminate the possibility of filing a timely motion to compel or seeking informal judicial intervention if the consultations proved unsuccessful. See Wiseman v. Lipinski, No. 3:10-cv-250, 2011 U.S. Dist. LEXIS 83047, at *8 (M.D. Tenn. July 28, 2011) (noting that failure to raise deficient discovery responses with the Court is indicative of a lack of diligence in pursuing discovery); Enyart, 2011 WL 1070870, at *2 (discussing the fact that "plaintiff never moved to compel the required discovery when he did not receive responses to his discovery requests by mid-December 2010 nor did he otherwise timely notify the Court that defendant['s] discovery responses were untimely or otherwise deficient" in support of its holding that the plaintiff failed to exercise diligence in pursuing discovery).
Defendant argues that it will suffer prejudice if the extension is granted. Doc. 25 at PageID 151. Plaintiffs counter that there will be no prejudice because they do not seek the extension to serve additional discovery requests; rather, they seek the extension to produce an expert witness report based on a timely discovery request to which Defendant has not adequately responded. Doc. 26 at PageID 269-70. The Court concludes that Defendant will not be prejudiced by the limited extension Plaintiffs seek, which will allow their experts to produce a report based on a timely discovery request. As evidenced in a recent telephone conference with counsel for both sides, other discovery remains ongoing. Notably, Defendant has yet to depose the seven named Plaintiffs and has agreed to a discovery extension for this purpose. See doc. 30. A limited extension of the discovery period will not prejudice Defendant; instead, it will only involve producing information that has been timely requested.
IV.
After carefully weighing each of the Dowling factors discussed above, the Court concludes that good cause exists to amend the Calendar Order and permit the identification of experts, by both sides, to occur here.
The Court also finds good cause to extend the discovery deadline for a limited period. To that end, the Court makes clear that it expects no further extensions or modifications of the calendar will be sought.
Accordingly, Plaintiffs' motion to amend the calendar (doc. 24) is GRANTED. Defendant is ORDERED to serve a full and complete response to Interrogatory 10 on or before June 18, 2014. This case shall proceed as follows: 1. Disclosure of all expert witnesses, along with a copy of each expert's report under Fed. R. Civ. P. 26(a)(2)(B): July 21, 2014 2. Disclosure of rebuttal experts and reports: August 21, 2014 3. Discovery deadline: September 22, 2014 4. Dispositive motions deadline: October 21, 2014
The Court will schedule the final pretrial conference and trial dates, if appropriate,
following its ruling on the dispositive motion(s) presented here.
IT IS SO ORDERED.
Michael J. Newman
United States Magistrate Judge