Walton v. North Carolina Department of Agriculture and Consumer Services et al, No. 5:2009cv00302 - Document 85 (E.D.N.C. 2011)
Court Description: ORDER denying 65 Motion to Compel and 66 Motion for Extension of Time to Complete Discovery; and, granting 67 Motion for Extension of Time to File Dispositive Motions and 82 Motion for Extension of Time to File Response re 70 MOTION for Sum mary Judgment, 74 MOTION for Summary Judgment, 72 MOTION Exclude Testimony of Plaintiff's Proposed Expert Witnesses, and 73 MOTION Exclude Testimony of Plaintiff's Experts - The trial setting in this matter is moved to that civil term of court commencing January 17, 2012 at the United States Courthouse in New Bern. If any party has a compelling personal or professional reason why such trial date is not feasible, provide notice to the court within two weeks of entry of date of this order. Signed by Chief Judge Louise Wood Flanagan on 07/14/2011. (Baker, C.)
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Walton v. North Carolina Department of Agriculture and Consumer Services et al Doc. 85 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION NO.5:09-CV-302-FL ANGELA D. WALTON, ) ) ) ) Plaintiff, v. ) NORTH CAROLINA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES and ROBERT N. BROGDEN, JR., Defendants. ) ) ) ) ) ) ) ORDER This matter comes before the court on a number of pending motions. Specifically, before the court is plaintiffs motion to compel (DE # 65), plaintiffs motion for extension oftime to complete discovery (DE # 66), defendants' motion for extension oftime to file dispositive motions (DE # 67), and plaintiffs motion for extension of time to file response to four various motions (DE # 82). These matters are ripe for adjudication. For the reasons that follow, plaintiff s motion to compel and plaintiffs motion for extension of time to complete discovery are denied. Defendants' motion for extension of time to file dispositive motions, and plaintiffs motion for extension of time to file responses are granted in part. BACKGROUND On March 11,2011, the court granted motion by defendant North Carolina Department of Agriculture and Consumer Services ("the Department") and directed plaintiff to submit to two mental examinations. The court noted that the discovery period closed on February 21, 2011, but observed that the Department's motion was filed before the close ofdiscovery. Per the court's order, Dockets.Justia.com the examinations were to take place no later than April 10, 20 II. The Department was then required to provide the expert's reports no later than April 20, 2011. Because the discovery period had closed, the court ordered that, if plaintiff desired opporttUlity to depose the examining experts, plaintiffwas required to signal this by filing a request with the court wi thin ten days ofreceiving the expert reports. In the court's order dated May 19,2011, no request for depositions having been made by plaintiff, the court deemed the discovery period concluded. The court set a dispositive motions deadline of June 18, 20 II, and set the matter for trial for the civil term of court beginning October 17,2011. DISCUSSION A. Plaintiffs Motion to Compel On June 14, 20 II, nearly a month after the court entered its order, and only four days before the expiration ofthe dispositive motions deadline, plaintiff filed motion to compel seeking an order requiring the Department and its examining expert, Dr. Ginger Calloway ("Dr. Calloway"), to produce copies of psychological testing materials related to plaintiffs mental examination. The Department has already produced Dr. Calloway's written report of the psychological examination as well as various other documents either provided to or generated by Dr. Calloway in preparation for or the conduct of the examination. The materials now sought by plaintiff are the actual testing materials themselves. The Department does not oppose plaintiff's motion. At the request of the court, Dr. Calloway filed a statement explaining her refusal to produce the documents, which statement has been taken into the record in supplement to the Department's response. Therein, Dr. Calloway explained that she is ethically and legally unable to provide the 2 materials without a court order directing her to disclose them and setting forth specific requirements for their protection. Ethically, Dr. Calloway is discouraged from releasing the materials by the American Psychological Association, which promulgates ethical standards governing the security oftesting materials. Dr. Calloway explains that the release of the test materials in the public domain could ultimately invalidate the purposes for which the tests were developed and could undennine their usefulness. Legally, Dr. Calloway is unable to disclose the raw testing materials due to her contractual agreement with the publishers ofthese tests, which are proprietary and are protected by copyright and trade secret law. The materials are distributed only for use by qualified professional practitioners, who are prohibited from producing the testing materials without a court order. The principles governing the issuance of protective orders are instructive. Rule 26(c) provides that "[t]he 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)(l). Similarly, Rule 45 requires that the court quash a subpoena that "(iii) requires disclosure of privileged or other protected matter, ifno exception or waiver applies; or (iv) subjects a person to undue burden." Fed.R.Civ.P. 45(c)(3)(A)(iii)-(iv). Additionally, Rule 45 pennits a court to quash a subpoena if it requires a person to disclose "a trade secret or other confidential research, development, or commercial infonnation." Fed.R.Civ.P.45(c)(3)(B)(i). With these principles in mind, the court detennines that plaintiffs motion to compel should be denied. Plaintiffwould require Dr. Calloway to disclose privileged or protected materials which would impose on Dr. Calloway an undue burden by requiring her to violate ethical and contractual obligations. Further, the testing materials are commercial infonnation. Dr. Calloway shall not be required to produce copies ofthe psychological testing materials. See Collins v. TIAA-CREF, No. 3 3:06CV304-C, 2008 WL 3981462, *5 (W.D.N.C. Aug. 22,2008) (similarly denying plaintiffs request that psychologist provide copies ofproprietary psychological testing materials, due to undue burden on psychologist's ethical and contractual obligations). Plaintiffs motion to compel is DENIED. B. Plaintiffs Motion for Extension of Time to Complete Discovery Also on June 14,20 II, again nearly a month after the court entered its order, and only four days before the expiration of the dispositive motions deadline, plaintiff filed a motion seeking an extension oftime to take the experts' depositions until July 29,2011. Therein, counsel infonns that he was unable to coordinate with defense counsel a mutually agreeable time for the conduct of the depositions during the few weeks following receipt of the experts' reports on April 20, 2011. Counsel concedes that he should have raised issue with the court sooner, but that various personal matters prevented him from promptly addressing the matter. The Department opposes the request for extension, infonning that counsel for both sides did attempt to coordinate schedules during the last week of April and first week of May, but after a mutually agreeable date was not quickly detennined, plaintiffs counsel ceased communication with defense counsel for thirty (30) days. The Department asserts that it would be prejudiced if the deadline were extended, as it has already submitted its motion for summary judgment in reliance on the court's May 19, 2011, order deeming the discovery period closed. Rule 16 of the Federal Rules of Civil Procedure provides that a case schedule "may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). "The touchstone of good cause is diligence ... the court may modify the schedule on a showing if good cause if it cannot reasonably be met despite the diligence of the party seeking the extension." 4 Marcum v. Zimmer, 163 F.R.D. 250, 255 (S.D.W.Va. 1995) "Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Id. Plaintiff did not comply with the court's March 11,2011, order, which required any request for depositions to be filed with the court by April 30, 2011. Even after the court on May 19,2011, declared that the discovery period was closed, plaintiffdid not come forward with her request until twenty-six (26) days later, when the instant motion for extension oftime was filed, which was a full forty- five (45) days after plaintiff was required to have made her request. Here, plaintiffoffers no satisfactory explanation as to why she failed to make her request with the court by the April 30, 2011, deadline, or why she waited to make her request until almost a month after the court declared the discovery period closed. Plaintiffs counsel, David Schiller, who filed the motion for extension, explains that he neglected the deadline due to compelling personal reasons. The court notes, however, that plaintiff has more than one counsel of record, and plaintiff offers no explanation as to why her other attorneys could not timely have made the request. Ultimately, it has not been shown that plaintiff put forth diligent effort and that the court's deadlines could not reasonably be met. Based on these facts, and in the context of this case that presents other issues of plaintiff s lateness as discussed below, the court can conclude only that the court's schedule was carelessly disregarded due to lack of diligence. Plaintiffs motion for extension of time to complete discovery is accordingly DENIED. C. Defendants' Joint Motion for Extension of Time to File Dispositive Motions Defendants move for a brief extension oftime within which to file dispositive motions. As set in previous order, the deadline for submission of such motions was June 18, 2011, a Saturday. 5 On June 17,2011, defendants jointly moved for an extension to file until Monday, June 20, 2011, due to various personal and professional obligations. Each defendant then filed a motion for summary judgment on June 20, 2011. Good cause having been shown, and plaintiff's consent to this forty-eight (48) hour extension having been demonstrated, defendants' joint motion for extension of time to file dispositive motions is GRANTED, and the deadline is extended to June 20, 2011. D. Plaintiff's Motion for Extension of Time to File Responses On July 11, 2011, plaintiff filed motion seeking extension of time within which to file responses to four motions made by defendants due to personal and professional obligations. Specifically, plaintiff seeks an extension of time to file responses to defendants' motions for summary judgment, which were filed June 20, 2011, and to which plaintiff's responses are due July 14, 2011. Additionally, plaintiff seeks an extension oftime to file responses to defendants' motions to exclude testimony of plaintiff's experts, which were also filed June 20, 2011, and to which plaintiffs responses were due July 8, 2011. Plaintiff seeks an extension of time until August 11, 2011, to respond to these motions. Plaintiff s motion is deficient in that it does not show prior consultation with opposing counsel as required by Local Civil Rule 6.1, and also appears substantively incomplete as it concludes on the first page with a dangling sentence. Further, plaintiffs motion was filed three days after the deadline within which to respond to two of the four motions had already passed. Unlike plaintiff's request to reopen the discovery period, however, plaintiff's requested extensions oftime for the filing ofthese responses will not have a drastic effect on the administration of this case. For this reason, notwithstanding the scarcity of good cause, where, again, plaintiff appears to have failed to attend properly to the case, plaintiff's motion for extension of time is 6 GRANTED. The court finds, however, that plaintiff's proposed August 11, 2011, deadline is excessive under the facts and circumstances at issue, and cabins the reliefaccordingly. Plaintiffshall file her responses to defendants' motions for summary judgment (DE ## 70, 74), and defendants' motions to exclude testimony of plaintiff's experts (DE ## 72, 73) within two weeks from date of entry of this order. E. Trial Setting Postponed Multiple extensions of time now having been granted by the court, coupled with the press of the court's criminal docket!, warrant revisiting the trial date, where this matter is currently set for trial October 17,2011. Accordingly, the court removes this civil matter from the October calendar and now sets this matter for trial in the civil term of court that begins January 17, 2011, at the United States Courthouse in New Bern. If any party has a compelling personal or professional reason why such a trial date is not feasible, provide notice to court within two weeks of date of entry of this order. CONCLUSION For the foregoing reasons, plaintiff's motion to compel (DE # 65) and plaintiff's motion for extension of time to complete discovery (DE # 66) are DENIED. Defendants' joint motion for extension of time to file dispositive motions (DE # 67) and plaintiff's motion for extension of time to file responses (DE # 82) are GRANTED. The trial setting in this matter is moved to that civil I The court has set an estimated eight-week criminal trial to begin September 19, 2011, involving a complex multi-defendant conspiracy raising issues of national security, which case has been given special setting. 7 tenn of court commencing January 17,2011. SO ORDERED, this the /4" day of July, 2011. 8
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