Opinion
No. 92-CV-554 (NPM/DRH)
May 12, 2004
DAVID A. BARRETT, ESQ, JEFFREY S. SHELLY ESQ., BOIES, SCHILLER FLEXNER LLP, Albany, New York, Attorney for Plaintiffs
CHRISTOPHER W. HALL, ESQ., HON. ELIOT SPITZER, Albany, New York, for Defendants
MEMORANDUM-DECISION AND ORDER
Presently pending are (1) the request of plaintiffs for an order compelling the continuation of the depositions of two witnesses and the production of certain documents, and for leave to serve an expert witness report, and (2) the request of defendants for an order compelling plaintiffs to serve supplemental responses to fifteen contention interrogatories. These requests were made and opposed in letters with attachments from plaintiffs' counsel dated April 29, 2004 and from defendants' counsel dated May 4, 2004. Oral argument was heard on May 6, 2004. For the reasons which follow, the respective requests of the parties are denied in all respects.
I. Background
Plaintiffs commenced this action in 1992 alleging that in 1989 and 1990 on the Mohawk Indian reservation known as the Akwesasne or St. Regis Reservation, defendants, all present or former New York State government officials, deprived plaintiffs of equal protection of the laws in violation of 42 U.S.C. § 1983 and various state law provisions. Specifically, plaintiffs allege that defendants failed to provide police protection on the reservation because they are Native Americans. More complete statements of the allegations underlying the complaint are set forth in various opinions previously rendered in this case and familiarity with those opinions is assumed. See, e.g., Pyke v. Cuono, 258 F.3d 107 (2d Cir. 2001); Pyke v. Cuomo, 209 F.R.D. 33 (N.D.N.Y. 2002) (McCurn, J.).
Although this case has been pending for over twelve years, the facts relevant to the pending discovery issues began in June 2001 when the Second Circuit Court of Appeals vacated the district court's grant of summary judgment to defendants and remanded for discovery and further proceedings. Pyke, 258 F.3d 107. Following a conference with counsel for all parties, a Uniform Pretrial Scheduling Order (UPSO) was entered on October 16, 2001 establishing a schedule for progression of the case pursuant to Fed.R.Civ.P. 16. Docket No. 110. Inter alia, that order established October 11, 2002 as the deadline for completion of discovery and March 25, 2003 as the deadline for filing dispositive motions. Id
On August 8, 2002, plaintiffs' motion for class certification was granted with the class certification limited to issues of liability. Docket No. 123; Pyke, 209 F.R.D. 33. A conference with counsel for all parties was then held at which the scheduling order was amended to extend the time for completion of discovery as to liability to August 1, 2003 and dispositive motions as to liability to March 25, 2004. Docket No. 125. In a letter dated June 25, 2003, plaintiffs requested a second extension of these deadlines by six months. This request was granted, extending the discovery deadline for liability to January 31, 2004. The order granting this extension stated, however, "[n]o further extensions." Docket No. 131.
Defendants' subsequent request to extend the dispositive motion deadline for liability issues by a similar period was granted on February 6, 2004 extending that deadline to September 25, 2004. Docket No. 133.
No further extensions were sought. However, by mutual agreement, the depositions of certain witnesses, including that of defendant Thomas A. Constantine ("Constantine") on February 12, 2004, were held after the January 31, 2004 deadline. By letter-brief dated April 29, 2004, plaintiffs requested an order (1) permitting them to continue the deposition of Constantine and defendant Robert B. Leu ("Leu") for an additional day each beyond the seven hours allowed by Fed.R.Civ.P. 30(d)(2); (2) compelling the production of certain documents withheld by defendants under claims that they were protected from disclosure by the attorney-client privilege; and (3) granting plaintiffs leave to serve an expert witness report on the issue of liability. Defendants opposed the request and, in the alternative, requested that if plaintiffs' requests were granted, defendants be granted an order compelling plaintiffs to supplement their responses to defendants' contention interrogatories.
II. Discussion
As a threshold matter, defendants contend that plaintiffs' request is untimely. Plaintiffs contend that if untimely, their request should nevertheless be granted because they have demonstrated good cause to extend the applicable deadlines.
A. Depositions and Document Production 1. Timeliness
The final deadline for completion of discovery was January 31, 2004. Docket No. 131. Under N.D.N.Y.L.R. 7.1(d)(8), "[a]ny motion to compel discovery authorized by these Rules shall be filed no later than TEN . . . DAYS after the discovery cut-off date" (emphasis in original); see also N.D.N.Y.L.R. 16.2 ("Motions to compel discovery shall be filed and served no later than ten (10) days after the discovery cut-off."). Thus, excluding Saturdays and Sundays, the time for the parties to move to compel discovery expired on February 13, 2004. Plaintiffs' request here was made and received on April 29, 2004. Plaintiffs' request as to the depositions and document production was thus untimely by seventy-six days.
Rule 7.1(d)(8) specifies ten calendar days. This appears to conflict with Fed.R.Civ.P. 6(a) which provides that "[w]hen the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. At least one judge in this district has resolved this conflict in favor of Rule 6(a). See Seitz v. Board of Trustees of Pension Plan of N.Y. State Teamsters Conference Pension Retirement Fund, No. 97-CV-232, 2000 WL 433096, at *1 (N.D.N.Y. Apr. 21, 2000) (Munson, J.). It will be assumed here that the exclusions of Saturdays and Sundays under Rule 6(a) apply to the ten day period specified in Local Rule 7.1(d)(8).
2. Cause
Plaintiffs contend that although their request was over two months late, good cause exists to extend the applicable deadlines and to consider their requests. The UPSO which plaintiffs seek to modify was entered pursuant to Rule 16(b). That rule provides that "[a] schedule shall not be modified except upon a showing of good cause. . . ." See also N.D.N.Y.L.R. 16.1(f) ("Deadlines. . . shall be strictly enforced and shall not be modified by the Court, even upon stipulation of the parties, except upon a showing of good cause."); UPSO at ¶ 1 (same);Carnrite v. Granada Hosp. Group. Inc., 175 F.R.D. 439, 448 (W.D.N.Y. 1997) (Rule 16(b) rather than Rule 6(b) governs motions to extend scheduling deadlines).
"'[G]ood cause' requires a greater showing than 'excusable neglect.'"Broitman v. Kirkland, 86 F.3d 172, 175 (10th Cir. 1996). At a minimum, good cause requires a showing by the moving party of an objectively sufficient reason for extending a deadline such that "the deadlines cannot reasonably be met despite the diligence of the party needing the extension." Robinson v. Town of Colonie, No. 91-CV-1355, 1993 WL 191166, at *3 (N.D.N.Y. June 3, 1993)(McCurn, J.); see also Julian v. Equifax Check Servs., Inc., 178 F.R.D. 10, 16 (D. Conn. 1998); Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. 295, 301 (D. Kan. 1996). The inquiry focuses on the moving party's reason for requesting the extension. Julian, 178 F.R.D. at 16. The mistake or inadvertence of counsel will not support a finding of good cause. See Broitman, 86 F.3d at 175;Lory v. General Elec. Co., 179 F.R.D. at 88;Carnrite, 175 F.R.D. at 448.
Here, plaintiffs contend that good cause exists on several grounds. First, plaintiffs contend that the facts that their counsel is acting pro bono and that the action is brought on behalf of a class of potentially 4,000 members provides good cause. These facts, however, were both considered when the original scheduling order and the two lengthy extensions were entered and granted. The UPSO allowed the parties almost twelve months to complete discovery. Docket No. 110. The two extensions increased this period by an additional thirteen months. Docket Nos. 125, 131. The guideline in this district for civil cases is that they be completed within eighteen months of the filing of the complaint, including motions and trial. See N.D.N.Y. Gen. Order 25 at § XI. Thus, even assuming that this case did not actually commence until the filing of the UPSO, plaintiffs were afforded substantially in excess of the usual period for discovery in this case. Moreover, plaintiffs were explicitly advised by the second extension order without ambiguity that no further extensions would be granted. See Bruce v. County of Rensselaer, No. 02-CV-0847, No. 2003 WL 22436281, at *2 (N.D.N.Y. Oct. 20, 2003) (McAvoy, J.) (affirming denial of fourth stipulated order extending deadline for filing class certification motion where third extension advised that no further extensions would be granted and noting that"[t]he responsibility and consequence of failing to meet a deadline falls upon the party that missed the deadline."). Finally, while counsel's pro bono status and the existence and size of the class, as indicia of the complexity of a case, should be considered in scheduling, those factors were considered here in determining the original schedule in the UPSO and in granting the two lengthy extensions. Those factors do not give license to circumvent the reasonable and properly noticed final discovery deadline here.
Plaintiffs did not offer any reasons for their untimely request in their letter-brief but asserted the grounds for good cause discussed herein during oral argument.
Plaintiffs also contend that difficulties in scheduling depositions provide good cause. It appears from the record that document discovery was substantially completed by June 2002 but that the depositions in question were not requested until November 11, 2003. This would have permitted the parties almost three months to complete the depositions before the close of discovery. However, scheduling difficulties among counsel and the witnesses led the parties to agree among themselves and without Court approval that the depositions would be taken after the discovery deadline. The admonition of N.D.N.Y.L.R. 16.2 bears directly on this argument:
Counsel are advised to initiate discovery requests and notice depositions sufficiently in advance of the [discovery] cut-off date to comply with this Rule. Discovery requests that call for responses or scheduled depositions after the discovery cut-off will not be enforceable except by order of the court for good cause shown.
The parties were free to schedule depositions after the discovery deadline had passed to accommodate their schedules and those of the witnesses. In doing so, however, the parties assumed the risks that (a) their adversary would not comply with the discovery demands, and (b) they would need Court intervention to compel discovery after the deadline. The risk regarding Court intervention was particularly great here where the parties were on notice that no further extensions would be granted. Given the lengthy period of discovery in this case and the notice of a final, unextendable deadline, the choice to accommodate schedules in the circumstances presented here does not constitute good cause for extending further the deadlines for discovery and motions to compel.
No party ever requested the Court to order that a deposition be held before the discovery deadline.
Finally, plaintiffs contend that they delayed seeking the relief requested herein so that all issues could be raised in a single, "omnibus" request to save the time and expense of the parties and the Court. Given the final discovery deadline after a lengthy period of discovery, plaintiffs' unilateral decision to delay raising any issue until months beyond the deadline is unjustifiable. It is unclear how delay saved any time or expense here for either the parties or the Court. Moreover, given notice of the final discovery deadline, it was incumbent upon plaintiffs to seek whatever relief they wished to pursue as expeditiously as possible. See Bruce, 2003 WL 22436281, at *3 (holding that delaying request for extension of deadline until last day was not justified by parties' settlement discussions even though settlement would have reduced time and expense of parties and court). This ground thus also fails to provide good cause to extend the deadlines.
3. Conclusion
Plaintiffs' request for an order compelling the further depositions of Constantine and Leu and the production of documents was untimely and plaintiffs have not established good cause to extend the applicable deadlines. Accordingly, plaintiffs' request for such relief is denied.
B. Expert Witness Report 1. Timeliness
Under the UPSO, plaintiffs were required to serve any expert witness reports no later than ninety days before the discovery deadline. UPSO at ¶ 6(a)(1). When the discovery deadline was extended to January 31, 2004, this made the deadline for plaintiffs' expert disclosure November 2, 2003. In their letter-brief of April 29, 2004, plaintiffs requested leave to serve an expert report concerning the availability to defendants of police tactics other than those considered by defendants. At oral argument, plaintiffs further requested an additional sixty days within which to serve such a report. Plaintiffs' request as to an expert witness was thus untimely by 179 days as of April 29, 2004 and by 247 days after the requested sixty day extension.
2. Cause
Plaintiffs contend that although their request was six to eight months late, good cause exists to extend the deadline. As discussed supra in subsection A(2), the "good cause" standard of Fed.R.Civ.P. 16(b) governs here. Plaintiffs contend that good cause exists because the need for an expert witness on the availability of certain police tactics did not appear until the depositions of the defendants were completed after the discovery deadline had passed. Plaintiffs' contention fails for at least three reasons.
First, plaintiffs knew or should have known that the question of police tactics available to defendants was a central issue in the case from the time the defendants filed their answer in 1992. Docket Nos. 4, 6. It also should have appeared to plaintiffs from the internal documents discovered by plaintiffs by June 2002. Thus, contrary to their assertions, plaintiffs received notice of this issue well before the depositions of the defendants were completed in 2004.
Second, given the deadline for expert disclosure, it was incumbent upon plaintiffs to complete relevant fact discovery sufficiently in advance of that deadline to permit time to obtain and disclose an expert witness report. By delaying completion of discovery, plaintiffs forewent use of such discovery in determining and obtaining expert witness reports.
Finally, if plaintiffs' request here is granted, it would effectively extend the discovery deadline by at least eight months. Plaintiffs have not yet even obtained an expert witness to render a report and stated at oral argument that they would need sixty additional days to serve an expert witness report. Defendants would then be entitled to at least forty-five days to serve an opposing report and both sides would then be entitled to an additional forty-five days at a minimum to depose those experts and for plaintiffs to serve any rebuttal expert report. UPSO at ¶ 6(a)(2)-(4). In the circumstances of this case, such a lengthy delay is unsupportable in light of the delays already experienced in this case and the establishment of a final deadline for all discovery in the second extension order. See Bruce, 2003 WL 2243628, at *3 (finding insufficient cause for extension "in light of the Court's interest in maintaining control over its docket, the three prior extensions and the stern warning that there would be no further extensions.").
3. Conclusion
Plaintiffs' request for an order extending the deadline for plaintiffs to serve an expert witness report was untimely and plaintiffs have not established good cause to extend that deadline. Accordingly, plaintiffs' request for such relief is denied.
C. Defendants' Request to Compel Discovery
Defendants request that if plaintiffs' requested relief is granted, defendants be granted an order compelling plaintiffs to supplement responses to fifteen contention interrogatories. Defendants agree that their request here is untimely. Accordingly, because plaintiffs' request for relief is denied herein and because defendants' request is similarly untimely, defendants' request is denied.III. Conclusion
For the reasons stated above, it is hereby ORDERED that:
1. Plaintiffs' request for an order compelling certain discovery from defendants and for leave to serve an expert witness report are DENIED in all respects; and
2. Defendants' request for an order compelling plaintiffs to serve supplemental responses to fifteen contention interrogatories is DENIED.