United States District Court, M.D. Louisiana
RULING AND ORDER ON PLAINTIFFS' MOTION TO QUASH
RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
Before the Court is Plaintiffs' Motion to Quash (R. Doc. 97) Defendants' Rule 45 subpoena directed to their attorney of record. Defendants filed an Opposition (R. Doc. 100) to the Motion, to which Plaintiffs responded with a Reply Memorandum (R. Doc. 103). For the reasons discussed below, Plaintiffs' Motion to Quash is GRANTED with respect to the subpoena and DENIED as to the request for sanctions.
Plaintiffs seek an order quashing Defendants' Rule 45 subpoena directed at Plaintiffs' counsel of record. Plaintiffs' attorney was served with the subpoena on March 27, 2015, which commanded him to produce "the entire file of Robert Ragsdale regarding his investigation" of the Feddersen Incident. (R. Doc. 97-3 at 7). Defendants' previously filed a Motion to Compel (R. Doc. 59) production of the same materials from Plaintiff. (R. Doc. 59-4 at 4) (subpoenaing production of Mr. Ragsdale's "entire Feddersen file" including "any letters or statements you have and any reports generated").
Defendants have insisted in both their Motion to Compel (R. Doc. 59) and their current Opposition (R. Doc. 100 at 11) that an investigative file (Feddersen File) was created by Mr. Ragsdale in connection with the Feddersen Incident and that the file is in Plaintiffs' possession. Plaintiffs have consistently explained that the only document they received from Mr. Ragsdale relating to the Feddersen Incident is Mr. Ragsdale's Feddersen Report. Otherwise, the Feddersen documents that Plaintiffs provided to their other experts were produced during discovery and were not obtained from Mr. Ragsdale. (R. Doc. 78 at 3). For this reason, the Court determined that the only document at issue in Defendants' Motion to Compel was Mr. Ragsdale's Feddersen Report. (R. Doc. 78 at 3).
On July 17, 2014, the Court issued an Order denying Defendants' Motion to Compel. (R. Doc. 78). The Court first found the Feddersen Report fell "outside the scope" of mandatory expert disclosures under Rule 26(a)(2)(B) because "none of the experts currently retained in this case have reviewed the Feddersen Report." (R. Doc. 78 at 4). Otherwise the Court found the Feddersen Report was not discoverable under Rule 26(b)(1), "[g]iven that Mr. Ragsdale is no longer an expert in this case, the Feddersen Report is neither relevant nor is it likely to lead to the discovery of admissible evidence." (R. Doc. 78 at 4).
Despite this Court's previous Order, Defendants insist that the same information is now discoverable because of the following "subsequent events...: (1) Plaintiff's expert, Dr. Gautam Ray, offered a new opinion regarding the similarity of this accident and [the Feddersen Incident]; (2) Dr. Stephen Batzer's deposition testimony regarding the Feddersen [Incident]; and (3) Plaintiff's most recent document production." (R. Doc. 100 at 1).
A. Timeliness of Subpoena
In its Order (R. Doc. 99) granting Plaintiff's Motion for Expedited Consideration, the Court explicitly instructed Defendants that their Opposition "must... address the timeliness of the Rule 45 subpoena at issue in light of the current" Scheduling Order deadlines. Defendants ignored the Court's order by failing to address the timeliness of their subpoena in their Opposition (R. Doc. 100). As such, they have failed to establish good cause under Rule 16 to modify the deadlines. For this reason alone, Plaintiffs' Motion to Quash must be granted because, whether the information sought by Defendants' Rule 45 subpoena is characterized as fact or expert discovery, it is untimely.
The Court's Scheduling Order established February 14, 2014 as the deadline for completing fact discovery (R. Doc. 40) and March 31, 2015 as the deadline for completing expert discovery. (R. Doc. 94). Defendants served Plaintiffs' attorney with a copy of the subpoena on March 27, 2015 and commanded the production of documents on April 15, 2015. (R. Doc. 97-3). If the subpoena constitutes fact discovery, it was untimely served over a year after expiration of the deadline. (R. Doc. 40). The same is true even if the subpoena is a request for expert discovery.
Although it was served 4 days before the expert discovery deadline, the subpoena was untimely as it required compliance outside of the March 31, 2015 deadline. In other words, the discovery was untimely because it could not have been completed within the expert discovery deadline. See, e.g., Dixon v. Greyhound Lines, Inc., 2014 WL 6474355, at *3 (M.D. La. Nov. 19, 2014) (Rule 45 subpoena seeking expert discovery was untimely despite being served within the expert discovery deadline, as the date of compliance fell outside the deadline); Hall v. State of Louisiana, 2014 WL at 2560715, at *1 (M.D. La. June 6, 2014) (discovery untimely as responses would be due after deadline); Thomas v. Pacificorp, 324 F.3d 1176, 1179 (10th Cir. 2003) (requests under Rule 34 "must be served at least thirty days prior to the completion of discovery" to be considered timely) (citing Smith v. Principal Cas. Ins. Co., 131 F.R.D. 104, 105 (S.D.Miss. 1990) (time to comply with discovery requests must be within discovery deadline)); see also Thomas v. IEM, Inc., 2008 WL 695230, at *2 (M.D. La. March 12, 2008) (document requests were untimely as the date for responding "would have fallen outside the [January 15] discovery deadline (i.e., thirty days from service of the Rule 34 request, or January 23, 2008)").
Although the Court instructed Defendants to address timeliness in their Opposition, Defendants ignored the Court's Order. Because Defendants failed to complete discovery within the timeframes established by this Court and there has been ...