When a party asks to do something outside of the time limits set by the scheduling order, the Court looks to whether there is "good cause" under FRCP 16(b)(4) to modify the scheduling order. Good cause requires diligence, generally meaning that the movant could not have reasonably met the deadline it's trying to move.
Last week we got two examples of diligence analyses from the Court, one that found that a party was diligent, and one that didn't. I thought it would be interesting to line them up and compare them.
"Immediately" = Good Cause
First, Judge Fallon found good cause where a plaintiff sought to depose a third-party witness after the close of fact discovery, after the plaintiff discovered the witness on the last day of fact discovery:
Plaintiffs request to depose third party witness, Todd Keiser, after the deadline for completion of fact discovery . . . . There is no dispute that Plaintiff served [a] subpoena[] on Dr. Thomas Errico . . . approximately six weeks before the close of fact discovery . . . . Dr. Errico was not made available for deposition until February 17, 2023, the last day of fact discovery. . . . During his deposition, Dr. Errico disclosed for the first time that Mr. Keiser, . . . was Dr. Errico's sales representative. . . . Plaintiff made efforts to subpoena Mr. Keiser immediately following the deposition of Dr. Errico. . . . Plaintiff continued to diligently pursue Mr. Keiser's deposition over the course of the following months. . . . These facts support the court's finding that Plaintiff could not reasonably have ascertained Mr. Keiser's role before Dr. Errico's deposition, and Plaintiff diligently pursued Mr. Keiser's deposition following the deposition of Dr. Errico.
Dr. Mark A. Barry v. Stryker Corp., C.A. No. 20-1787-RGA-SRF (D. Del. May 3, 2023).
Judge Fallon rejected defendant's counter-argument that plaintiff waited too long to subpoena the first third-party witness (and thereby discover the second), finding that six weeks before the close of fact discovery was enough time. Judge Fallon also rejected defendant's arguments that plaintiff could have discovered the third party's identity earlier, and that the delay was due in part to the information plaintiff had received:
The balance of Stryker's arguments in opposition to Plaintiff's motion are unpersuasive. First, Stryker speculates that Plaintiff could have uncovered Mr. Keiser's identity earlier if Plaintiff had subpoenaed other third parties. . . . But Stryker does not address how the pursuit of these additional subpoenas would have been reasonable when Plaintiff possessed discovery specifically identifying Mr. Palerino, and not Mr. Keiser, as Dr. Errico's sales representative. . . . Stryker also maintains that it had no obligation to guess why Plaintiff chose to subpoena Mr. Palerino instead of Mr. Keiser. . . . But the court does not construe Plaintiff's motion for relief as imposing any such obligation. . . . Just as Stryker has no obligation to guess at Plaintiff's strategy for third-party discovery, it is not reasonable to expect Plaintiff to question the accuracy of information provided in response to a subpoena which appeared to be consistent with documents produced in discovery. . . .
The Court found good cause and granted the extension.
17 Days Later (and Close to Trial) = No Good Cause
Meanwhile, Judge Williams last week dealt with a discovery request for production of a deposition transcripts from a co-pending action, and denied the request after finding that the party had waited too long to act:
[T]he Court concludes that Defendants have not demonstrated diligence and, therefore, failed to establish good cause for its proposed modification. Mr. Zimmerman was deposed on March 8, 2023 . . . while Mr. Rabinowitz was deposed on April 18, 2023 . . . . However, Defendants did not request Plaintiff to produce those deposition transcripts until April 24, 2023. . . . Moreover, it was not until May 4, 2023, on the eve of trial, that Defendants sought an order from this Court ordering Plaintiff to produce these deposition transcripts. Defendants also did not take any prior steps to seek relief from Chief Judge Connolly in the CareDx litigation to use the deposition transcripts in this action. Defendants' conduct demonstrates a lack of diligence and, thus, cannot show "good cause." Accordingly, Defendants' requested relief (D.I. 587) is DENIED.
Natera, Inc. v. ArcherDX, Inc., C.A. No. 20-125-GBW, D.I. 596 (D. Del. May 5, 2023).
Ouch. If you're wondering how the math works out there, here is a timeline:
- 3/8/2023: First deposition
- 4/18/2023: Second deposition
- 4/24/2023: Request for transcripts (about 7 weeks after first deposition and less than a week after the second deposition)
- 5/4/2023: Discovery dispute (11 days after request)
- 5/8/2023: Trial
I think the failure to seek relief from the judge in the other action and the proximity to trial is probably a big part of what doomed the defendants here, given that they requested the second transcript less than a week after the deposition, and moved to compel just 11 days after the request.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
