Brightwell v. Hershberger et al, No. 8:2011cv03278 - Document 150 (D. Md. 2015)
Court Description: MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 12/22/2015. (sat, Chambers)
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Brightwell v. Hershberger et al Doc. 150 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : DAVID BRIGHTWELL : v. : Civil Action No. DKC 11-3278 : GREG HERSHBERGER, et al. : MEMORANDUM OPINION Presently pending and ready for resolution in this civil rights case is a motion to quash and for entry of a protective order filed by Defendants (“Defendants”). briefed, and necessary. Gregg (ECF No. 145). the court now L. et al. The issues have been fully rules, Local Rule 105.6. Hershberger, no hearing being deemed For the following reasons, the motion will be denied. I. Background Additional underlying memorandum opinion. to the pending facts (ECF No. 136). motion will be are included in a prior Only those facts relevant discussed here. The pending motion relates to Plaintiff David Brightwell’s attempt to depose Defendant David Miller. Plaintiff’s counsel asserts that Plaintiff attempted unsuccessfully to serve Mr. Miller multiple times in April and May 2015. (ECF No. 148-1 ¶ 3). On August 3, 2015, the undersigned entered a scheduling order establishing that depositions were to be completed by August 31 and Dockets.Justia.com dispositive motions were due by September 30. (ECF No. 135). On motion September 25, Defendants filed a consent for an extension of time “to allow for Plaintiff to complete Defendant Miller’s deposition before the filing of a motion for summary judgment.” (ECF No. 139 ¶ 2). The deadline for the submission of dispositive motions was extended until October 23. (ECF No. 140). On September 22, Plaintiff served Mr. Miller subpoena to appear at a deposition on October 8. Mr. Miller attended his deposition on October 8. after the defendant, Mr. Miller began, upon requested realizing that he a (ECF No. 148-1 ¶ 5). deposition with that be Shortly he was represented a by Defendants’ counsel, the Maryland Office of the Attorney General (the “OAG”) and the deposition was postponed. 3; 148-1 ¶ 6). (ECF Nos. 145-2 ¶ On October 16, the OAG informed Mr. Miller that it would represent him once he executed a legal representation agreement. (ECF No. 145-2 ¶ 4). The OAG has not yet received an executed agreement from Mr. Miller. October 21, the parties’ counsel regarding the scheduling order. 9). Defendants’ counsel (Id.). communicated On or about telephonically (ECF Nos. 145-2 ¶ 5; 148-1 ¶ alleges that Plaintiff’s counsel represented that he would not depose Mr. Miller “until briefing on the motion for summary judgment had been completed.” No. 145-2 ¶ 5). (ECF Plaintiff’s counsel asserts that he conveyed 2 that he “did not intend to [depose Mr. Miller] given the short schedule unless Defendants’ summary judgment motion relied on statements from [Mr.] Miller.” On October 23, Defendants (ECF No. 141)1. judgment. (ECF No. 148-1 ¶ 9). filed a motion for summary On November 20, Plaintiff’s counsel e-mailed Defendants’ counsel Miller’s deposition. (ECF to No. inquire 145-2, about at scheduling 23). Mr. Defendants’ counsel replied that they objected to conducting the deposition because “[d]iscovery cut-off is over and the Defendants have already filed their brief for summary judgment.” Defendants’ counsel also asserted that he (Id. at 25). “relied on [Plaintiff’s counsel’s] representation . . . that [he] would not try to depose Mr. Miller until after briefing on the motion for summary judgment was completed.” (Id.). December 8, served subpoena to Plaintiff’s appear January 6, 2016. at counsel a deposition On November 25 and Mr. currently (ECF No. 148-1 ¶ 13). Miller with scheduled a for Under the current amended briefing schedule, Plaintiff’s response is due January 18 and Defendants’ reply is due by February 26. (See ECF No. 147). 1 The motion (ECF No. 141) is docketed as being filed on behalf of Mr. Miller, as well as other defendants, but the motion itself does not include Mr. Miller, as to whom default has been entered. Furthermore, it appears that Michael McDonald has entered his appearance on behalf of Mr. Miller, but it is not clear when and whether the entry of appearance was intentional. Counsel are directed to clarify the representation issue within 3 days. 3 On December 4, 2015 Defendants filed the pending motion to quash and for entry of a protective order. (ECF No. 145). Plaintiff filed a response in opposition (ECF No. 148), and Defendants replied (ECF No. 149). II. Analysis A subpoena issued pursuant generally must to Rule 45 be served is “a within form of discovery” and discovery deadlines. See 476 K Street, LLC v. Seneca Specialty Ins. Co., No. TDC-14-2739, 2015 WL 3464459, at *2 (D.Md. May 28, 2015). “District courts have broad discretion to manage the timing of discovery.” Innovative Therapies, Inc. v. Meents, 302 F.R.D. 364, 382 (D.Md. 2009)(citing Ardrey v. United Parcel Serv., 798 F.2d 679, 682 (4th Cir. 1986), cert denied, 480 U.S. 934 (1987)). Defendants subpoena is argue untimely that Plaintiff’s because discovery November closed 25, in 2015 August.2 Defendants also object to the prospect of Plaintiff’s counsel taking Mr. Miller’s deposition motion for summary judgment. after having access to their Defendants assert: Miller’s deposition would not only create the burden and expense of traveling to western Maryland to prepare for and attend a deposition that should have been taken several months ago, it is distracting and could potentially result in even further 2 Plaintiff’s contention that Defendants do not standing to challenge the subpoena is unpersuasive. As parties note, a party has standing to enforce a court’s and orders - in this case, the court’s scheduling order. ECF Nos. 145-1, at 6; 148, at 11 n.7). 4 have both rules (See efforts to take discovery. To allow Plaintiff to, in effect, re-open discovery now that a motion for summary judgment has been filed disadvantages the defendants and smacks of gamesmanship because it would enable Plaintiff to use Defendants’ motion as a guide post. (ECF No. 145-1, at 8). Defendants admit that they initially consented deposition of assert that close to of contingent Plaintiff’s discovery, on the but deposition taking submission of dispositive motions. Mr. Miller this place after the agreement was prior the to Plaintiff counters that he is simply attempting to complete the deposition that already began, as agreed to by Defendants, but which has been delayed due to issues with Mr. Miller’s representation. at 8-10). (ECF NO. 148, Plaintiff asserts that he is not seeking to re-open discovery beyond deposing Mr. Miller. Here, Defendants have not adequately shown that they will be unduly burdened if Plaintiff is allowed to depose Mr. Miller. Traveling to the deposition in western Maryland is not unduly burdensome. In addition, unlike the cases cited by Defendants, there is no risk that denying their motion would widely reopen discovery. which In fact, the court in 476 K Street, the case on Defendants most directly rely, compelled limited additional discovery after the deadline because it deemed the information relevant and not unduly burdensome to produce. WL 3464459, at *3. 2015 Here, Plaintiff is not asking to re-open 5 discovery beyond taking one deposition that had already been agreed to, scheduled, and begun. that Plaintiff has Moreover, there is no evidence deliberately discovery deadline. attempted serving Mr. Miller, deposition, as deposition began, circumvent the Rather, Plaintiff has attempted to depose Mr. Miller for roughly eight months. in to agreed to but Defendants’ counsel. Plaintiff by When ultimately successful was prepared Defendants, was on adjourned to take October by Mr. the 8. The Miller and Accordingly, Plaintiff’s counsel has been diligent in attempting to depose Mr. Miller, notwithstanding the delay in formalizing the representation agreement between Mr. Miller and Defendants’ counsel. Defendants’ argument that they will be prejudiced by the deposition because they have already filed summary judgment is also unavailing. their motion for Defendants contend that Plaintiff will be able to use the summary judgment motion as a “guide post” for the deposition, but this vague assertion is not sufficient to warrant preventing a deposition that was scheduled and commenced prior be to Defendants will necessary, following Plaintiff’s memorandum, the able the filing to file of a deposition thus further prejudice. 6 Defendants’ reply and motion. memorandum, the reducing filing the risk if of of III. Conclusion For the foregoing reasons, Defendants’ motion to quash and for the entry of a protective order will be denied. A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 7
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