United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
MAGISTRATE JUDGE JOHN E. MARTIN, UNITED STATES DISTRICT COURT
matter is before the Court on Plaintiffs' Motion to
Extend Discovery Deadline [DE 41] filed on June 29, 2018.
Plaintiffs seek a 60-day extension to the discovery period.
Defendant The RV Factory, LLC filed a response on July 13,
2018, agreeing to a 60-day extension but under limited
conditions. On July 20, 2018, Plaintiffs filed a reply.
in this case allege negligence, breach of warranties and
breach of contract relating to their purchase of a
recreational vehicle (“RV”) from Defendant.
Discovery closed on June 29, 2018, the date of the instant
Motion. Plaintiffs seek a general extension of discovery, but
the parties' dispute centers on two Rule 30(b)(6)
Plaintiffs attempted to depose Lippert Components, Inc.
(“Lippert”), a non-party. On June 7, 2018,
Plaintiffs served Lippert with a Notice of Deposition.
Plaintiffs represent that Lippert objected to the date and
the scope of the examination and refused to cooperate in
selecting an alternate date. In its response to the instant
Motion, Defendant attached a copy of correspondence between
counsel for Lippert and counsel for Plaintiffs, in which
counsel for Plaintiffs stated that he would seek to add
Lippert as a party and “renotice the Deposition after
you file responsive pleadings.” Defendants argue that
this statement released Lippert from the subpoenas and the
Notice of Deposition. Plaintiffs did seek to add Lippert as a
party and amend the Complaint, but the motion was denied on
July 10, 2018.
22, 2018, Plaintiffs deposed Defendant's Rule 30(b)(6)
representative, Pete Bundy. Bundy was only able to testify to
questions on ten of the fourteen topics identified in the
Notice of Deposition, and Plaintiffs argue that his responses
were inadequate as to several topics he did address.
Plaintiffs want to retake the deposition without limitation,
but Defendant argues that Plaintiffs should only be allowed
to take an additional deposition relating to the topics to
which Bundy could not respond.
also agreed to depose a non-party witness, Shannon Hunter,
but the deposition could not proceed because of a conflict
with child care. The parties agree that an extension should
be given as to Hunter's deposition. Finally, Plaintiffs
seek leave to take additional discovery, as yet undefined,
based on the testimony they intend to elicit from Defendant,
Lippert, and Hunter.
extension to a deadline is sought before the deadline has
passed, as was the case here, the Court may extend a deadline
for good cause. Fed.R.Civ.P. 6(b)(1)(A). Moreover, when the
Court has entered an order setting discovery deadlines, that
schedule can only be modified for “good cause.”
Fed.R.Civ.P. 16(b)(4). The “good cause” standard
under Rule 16 is stricter than that of Rule 6, because the
movant must show diligence, not just excusable neglect, to
justify the extension. See McCann v. Cullinan, No.
11-CV-50125, 2015 WL 4254226, at *10 (N.D.Ill. July 14, 2015)
(comparing the two standards); Simstad v. Scheub,
No. 2:07-CV-407, 2014 WL 5094142, at *1 (N.D. Ind. Oct. 10,
2014) (“good cause is shown when despite a party's
diligence, the deadlines could not reasonably have been
met”). In determining whether good cause under Rule 16
has been shown, the Court's primary inquiry is the
diligence of the requesting party. Alioto v. Town of
Lisbon, 651 F.3d 715, 720 (7th Cir. 2011).
a Rule 30(b)(6) deposition, the person designated to testify
“must testify about information known or reasonably
available to the organization.” Fed.R.Civ.P. 30(b)(6).
If that person does not have personal knowledge of the
matters for examination, the organization must prepare the
designee so that he can give knowledgeable and binding
answers for the organization. Babjak v. Arcelormittal
USA, LLC, No. 2:15-CV-40-JVB-PRC, 2016 WL 4191050, at *1
(N.D. Ind. Aug. 9, 2016); DSM Desotech Inc. v. 3D Sys.
Corp., No. 08 C 1531, 2011 WL 117048, at *1 (N.D.Ill.
Jan. 12, 2011).
case, Defendant's designee for its 30(b)(6) deposition,
Pete Bundy, did not have personal knowledge of many of the
relevant topics. Bundy indicated that he was hired several
months after the purchase of the vehicle disputed in this
case. In addition to the four topics about which he did not
testify, Bundy testified that no one from Defendant had
prepared him to answer for the remaining topics. See,
e.g., Bundy Dep. 17:5-21 (“I would answer what I
know and of the actual unit . . . I wouldn't say [anybody
from Defendant] prepared me.”), Bundy Dep. 36:5-9
(“Nobody prepared me.”). In addition, Bundy
apparently failed to review any communications between
Plaintiffs and Defendant, which could have informed his
responses as to the ten topics he did answer to, such as
“any and all questions regarding the sale of the
subject vehicle to [Plaintiffs].” Defendant nonetheless
argues that Bundy's testimony on those ten topics
satisfied its obligations under Rule 30(b)(6) as to those
topics. Given the evidence in the record that Bundy did not
have personal knowledge of the relevant topics and that
Defendant did not prepare him, the Court will not attempt to
decide what testimony reflects appropriate preparation and
what does not. Discovery will be extended to allow Plaintiffs
to retake the deposition with an adequately prepared witness
as to each of the fourteen topics.
showed diligence in attempting to schedule the Rule 30(b)(6)
deposition of Lippert, the non-party. Plaintiffs and Lippert
engaged in a protracted debate over the date and scope of the
exam, which apparently ended on June 15, 2018, when
Plaintiffs stated that they would seek to add Lippert as a
party. Plaintiffs filed a motion to amend their complaint on
the same day. Discovery closed on June 29, 2018, while the
motion was still pending. Plaintiffs could not have
reasonably expected to add Lippert as a party, given that the
deadline to file a motion to amend had passed long before
Plaintiffs filed their motion, but the sequence of events
demonstrates that Plaintiffs were at least trying to depose
Lippert. Although Plaintiffs' diligence entitles them to
an extension of the deadline, the Court does not take a
position on the appropriate scope of the deposition or on
whether Lippert has been released from the prior subpoenas
and Notice of Deposition. The Court therefore urges
Plaintiffs to either resolve those disputes quickly or timely
file any appropriate motion so that any deposition of Lippert
can proceed within the allotted time. The Court will also
permit the deposition of Shannon Hunter, the non-party who is
a former employee of Lippert, as agreed by the parties.
the Court will not permit Plaintiffs to use the disputed
depositions to keep discovery open for undefined purposes. If
Defendant, Lippert, and Hunter had behaved exactly as
Plaintiffs wanted, their depositions would have been
completed on June 22, 2018, a week before the discovery
deadline. Plaintiffs likely would not have had time to
schedule additional depositions. If Plaintiffs did seek
additional time, they would have had to identify the witness
or evidence and demonstrate good cause with respect to that
particular witness or evidence. That requirement still holds,
and a general extension of discovery is therefore