United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Motion to Quash the Subpoena
Issued by Crawford to Ralph Stephens Along with the
Accompanying Notice of Deposition (R. Doc. 103) filed on
January 11, 2019. The Motion is opposed. (R. Doc. 106).
Plaintiff has filed a Reply. (R. Doc. 109).
Kerek (“Plaintiff” or “Kerek”) seeks
an order quashing a Rule 45 subpoena and deposition notice
issued by Crawford Electric Supply Company, Inc.
(“Crawford” or “Defendant”) on
January 8, 2019 that require Kerek's expert, Ralph
Stephens, to produce documents and appear for a deposition on
January 18, 2019, the deadline to complete expert discovery.
(R. Doc. 103-12). The Court has stayed the expert discovery
deadline pending resolution of the instant Motion. (R. Doc.
asserts that the Rule 45 subpoena should be quashed because
the parties reached an agreement not to depose experts in
this action, and the subpoena is otherwise unreasonable and
unfair to the witness and to Plaintiff's counsel in light
of the short notice. (R. Doc. 103-1). Among other things,
Kerek asserts that Mr. Stephens had various appointments and
deadlines that would interfere with any deposition between
January 14-18, 2019. (R. Doc. 103-1 at 5-6).
opposition, Crawford argues that Kerek lacks standing to
challenge the subpoena under Rule 45, and has not otherwise
shown good cause to quash the subpoena under Rule 26. (R.
Doc. 106). Among other things, Crawford argues that the
parties did not stipulate that they would not depose experts
pursuant to Rule 29(b), and even if such an agreement was
reached, changes in circumstances merit allowing the
deposition to proceed. (R. Doc. 106 at 3-6). Crawford also
argues that it has offered modifying the deposition date,
that it otherwise provided reasonable notice of the
deposition, and that it has been Kerek's own practice to
unilaterally set depositions with short notice. (R. Doc. 106
reply, Kerek argues again that the parties reached an
agreement not to depose experts, that the subpoena was
untimely and unreasonable, and that Crawford did not provide
sufficient advance notice before serving the subpoena. (R.
Doc. 109 at 1-4). Kerek also argues that there is no good
cause for extending the expert deadline to allow the
deposition to proceed. (R. Doc. 109 at 4). Finally, Kerek
argues that he has standing under Rule 45 to challenge the
subpoena served on his expert, and that he has otherwise
established good cause under Rule 26(c) for the issuance of a
protective order quashing the subpoena. (R. Doc. 109 at 5-6).
Court need not delve into the contractual arguments raised by
the parties regarding whether they reached a stipulation
pursuant to Rule 29(b) with respect to refraining from taking
any expert depositions or whether a party has standing under
Rule 45 to seek an order quashing a subpoena directed at that
party's expert. It is also noted that the efforts to
obtain the expert testimony at issue were taken before the
Court's deadline to do so. Having considered the
parties' arguments, and the record as a whole, the Court
finds (1) good cause under Rule 26(c) to modify the subpoena
to require compliance on a date and time convenient to the
parties and Mr. Stephens and (2) good cause under Rule
16(b)(4) to extend the expert deadlines in this action.
court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense.” Fed.R.Civ.P. 26(c)(1). Rule
26(c)'s “good cause” requirement indicates
that the party seeking a protective order has the burden
“to show the necessity of its issuance, which
contemplates a particular and specific demonstration of fact
as distinguished from stereotyped and conclusory
statements.” In re Terra Int'l, Inc., 134
F.3d 302, 306 (5th Cir. 1998) (quoting United States v.
Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)). Given
the record, including Kerek's understanding that the
parties had stipulated not to depose experts, the Court finds
good cause under Rule 26(c) to modify the subpoena to require
compliance on a time and date convenient to the parties and
16(b)(4) of the Federal Rules of Civil Procedure allows for
the modification of a scheduling order deadline upon a
showing of good cause and with the judge's consent. The
Court has “broad discretion to preserve the integrity
and purpose of the pretrial order.”
S&W Enterprises, L.L.C. v. SouthTrust Bank of
Alabama, NA, 315 F.3d 533, 535 (5th Cir. 2003) (quoting
Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir.
1990)). The parties have disclosed expert witnesses who have
not been deposed. There is currently no trial date in this
action. Modification of the deadline to conduct expert
discovery will not cause undue prejudice to the parties.
Accordingly, the Court finds good cause to extend the
deadline to complete expert discovery for the purposes of
providing the parties an opportunity to depose, and obtain
documents from, the opposing parties' expert
notwithstanding any agreement the parties may have reached
regarding whether experts would be deposed.
on the foregoing, IT IS ORDERED that
Plaintiff's Motion to Quash (R. Doc. 103) is
GRANTED IN PART and DENIED IN
PART. The parties shall bear their own costs.
IS FURTHER ORDERED that counsel for the parties must
meet-and-confer with respect to deadline on which Mr.
Stephens must comply with the subpoena, which must occur on
or before the expert discovery deadline set forth below. Any
future Rule 37(a)(1) or Rule 26(c)(1) certificate filed with
respect to the deposition of an expert in this action must
specifically set forth the following: (1) how the conference
was scheduled and agreed upon, (2) who participated in the
conference, (3) when the conference took place, (4) whether
the conference was conducted by phone or in person, (5) the
duration of the conference, (6) the specific, itemized topics
that were addressed at the conference, and (7) whether any
issues were resolved by the parties. In the alternative, the
Rule 37(a)(1) or Rule 26(c)(1) certificate must detail the
moving counsel's good faith attempts to confer with
opposing counsel and provide evidence that opposing counsel
refused to confer after reasonable notice.
IS FURTHER ORDERED that the deadline to complete
discovery from experts is extended to April 12,
2019. All other deadlines remain
IS FURTHER ORDERED that Plaintiff's counsel
shall provide a copy of ...