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dismissing "conclusory argument" that "the discovery sought may be obtained from other sources"
Summary of this case from NetJets Aviation, Inc. v. NetJets Ass'n of Shared Aircraft PilotsOpinion
Civil Action 2:05-CV-008.
May 22, 2008
OPINION AND ORDER
Plaintiffs seek recovery for injuries allegedly sustained by plaintiff David Hina as a result of the defendant employer's intentional tort in failing to maintain a milling machine. Plaintiff Amy Dunn asserts a loss of consortium claim. This matter is now before the Court on three pending motions. The Court will address each motion in turn.
I. Motion of Anchor Glass Container Corporation to Quash the Subpoena Directed to Its Attorney Mary Barley-McBride , Doc. No. 41
A. Background
This action was filed on January 4, 2005. In response to the Amended Complaint filed on June 21, 2005, defendant filed Defendant's Motion to Dismiss or, in the Alternative, Motion in Limine, Doc. No. 16 (" Motion to Dismiss"), on August 5, 2005. In that motion, defendant argued that it had been "irreparably prejudiced" by the alleged manipulation by plaintiff Hina and plaintiffs' expert of the speed mechanism of the milling machine at issue in this case. Motion to Dismiss, p. 2. Submitted in support of the Motion to Dismiss is the affidavit of defendant's counsel, in which she states that the alleged manipulation took place "[w]ithin one minute of the commencement of the inspection" of the machine. Affidavit of Mary Barley-McBride, ¶ 7, Doc. No. 16-4 (" First Barley-McBride Affidavit").
Shortly after that motion was filed, defendant's bankruptcy was noted on the record, Suggestion of Bankruptcy, Doc. No. 18, and the case was administratively closed. Order, Doc. No. 19.
The bankruptcy stay was lifted on November 5, 2007, and plaintiffs were directed to respond to the Motion to Dismiss by November 25, 2007. Order, Doc. No. 26. Plaintiffs thereafter sought and were granted an extension of sixty (60) days — or until January 25, 2008 — in order to conduct discovery prior to responding to the Motion to Dismiss. Order, Doc. No. 31.
Plaintiffs in fact responded to the Motion to Dismiss on January 25, 2008. Plaintiffs' Memorandum contra Defendant's Motion to Dismiss, Doc. No. 32 (" Plaintiffs' Memo. in Opp."). Among the documents attached to that response is the affidavit of plaintiffs' expert in which he states, inter alia, that he took photos of the speed dial at the inspection and that "[i]t is probable that these . . . photos were taken prior to any touching of the speed dial. . . ." Affidavit of Gerald Runnell, ¶ 4, Doc. No. 32-6 (" Rennell Aff."). In support of its Reply to Plaintiff's [sic] Memorandum contra Defendant's Motion to Dismiss, Doc. No. 40 (" Reply"), defendant attached another affidavit of its counsel in which she states that plaintiffs' expert "began manipulation of the machine immediately on reaching it and prior to Plaintiffs' expert obtaining any photographs." Affidavit of Mary Barley-McBride, ¶ 1, Doc. No. 40-2 (" Second Barley-McBride Affidavit"). Less than one week after the filing of the Reply, Plaintiffs issued a subpoena for the deposition of defendant's counsel. Subpoena, Doc. No. 41-2. Defendant moves to quash that subpoena, Motion of Anchor Glass Container Corporation to Quash the Subpoena Directed to Its Attorney Mary Barley-McBride (" Motion to Quash"), Doc. No. 41.
Defendant moves to quash the subpoena, contending that the subpoena fails to satisfy a three-part test adopted by the United States Court of Appeals for the Sixth Circuit to determine whether a court should quash a deposition subpoena directed to an opposing party's attorney. Id. at 5 (citing Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621 (6th Cir. 2002) (applying test from Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1987)). Under the Shelton test, the party issuing the subpoena bears the burden of proving that: "(1) no other means exist to obtain the information . . .; (2) the information is relevant and non-privileged; and (3) the information is crucial to the preparation of the case." Nationwide, 278 F.3d at 628 (quoting Shelton, 805 F.2d at 1327).
Defendant initially also objected to the subpoena as procedurally deficient. Plaintiffs have apparently remedied those deficiencies and the Court will not further consider these objections.
Defendant contends that plaintiffs cannot meet the first prong of this test "[b]ecause the inspection was attended by Mr. Hina, his expert and attorney, as well as several other employees of Anchor Glass," who can serve as other sources for the information expected to be sought from defendant's counsel. Id. For this reason, defendant argues, its counsel's testimony "is not crucial to Hina's case" and plaintiffs cannot, therefore, meet the third prong of the Shelton test. Id. Finally, defendant contends that requiring Ms. Barley-McBride's deposition will result in "undue burden and unnecessary time and expense[.]" Id.
In response, plaintiffs contend that Nationwide is distinguishable from the instant case. Memo. in Oppo., p. 1. According to plaintiffs, Ms. Barley-McBride's testimony that Mr. Rennell photographed the machine after manipulating it is crucial to plaintiffs' case because she is the only witness to file an affidavit contradicting Mr. Rennell's testimony that he photographed the machine before manipulating the dial. Id. at 2.
In reply, defendant argues that plaintiffs previously requested and received sixty days to conduct discovery prior to filing their opposition to defendant's Motion to Dismiss and that the Court should not now permit plaintiffs to bolster their opposition by yet more discovery. Reply, pp. 1-2. According to defendant, plaintiffs have known since the filing of defendant's Motion to Dismiss in August of 2005 that Ms. Barley-McBride's account of the inspection conflicted with the account of plaintiffs' expert, Gerald Rennell. Id. at 3-4. Defendant argues that plaintiffs failed to investigate this contradiction despite the Court's sixty-day extension of the discovery period. Id. Further, defendant contends that, during the depositions of two witnesses to the inspection, plaintiffs' counsel asked neither witness whether they saw Mr. Rennell photographing the machine prior to the claimed spoliation. Id. at 4. Finally, defendant requests that, if the Court permits counsel's deposition, the Court re-open discovery so that defendant may depose plaintiffs' counsel, Mr. Rennell and "former Anchor employees" about the spoliation and photographs. Id. at 5-6.
B. Standard of Review
The trial court has the right to control the discovery schedule. See, e.g., Kennedy v. Cleveland, 797 F.2d 297, 300-01 (6th Cir. 1986). Determining the proper scope of discovery falls within the broad discretion of the trial court. Lewis v. ACB Business Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998).
Under limited circumstances, a court may permit discovery from opposing counsel. Such discovery "is `limited to where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information . . .; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.'" Nationwide, 278 F.3d at 628 (quoting Shelton, 805 F.2d at 1327).
C. Discussion
1. Timeliness
Defendant argues that plaintiffs' subpoena to depose Ms. Barley-McBride is untimely because plaintiffs had sixty days to depose her prior to filing plaintiffs' opposition to the motion to dismiss. This Court disagrees.
In the First Barley-McBride Affidavit, Ms. Barley-McBride avers that
[t]he inspection began when Mr. Fitch, Mr. Hina and Mr. Renauld [sic] were shown the location of the milling machine at the time of the accident. They were then taken to the current location of the machine. Within one minute of the commencement of the inspection, Mr. Hina and Mr. Renauld [sic] began moving and manipulating the speed control mechanism on the milling machine. They did not ask for, nor were they given, authorization to do so.Id. at ¶ 7.
Defendant mistakenly refers to plaintiff's expert, Gerald Rennell, as "Mr. Renauld."
In response, plaintiffs attached the affidavit of their expert, Gerald Rennell:
I took over twenty digital photos during my inspection. The first two photos I took show in part the speed dial. (I sent a copy of these photos to Mr. Fitch on a memory card.) It is probable that these two photos were taken prior to any touching of the speed dial by myself or Mr. Hina. Therefore any photographic enhancement of these photos showing the speed on the dial would document the speed setting prior to our inspection.Rennell Aff., at ¶ 4.
In support of the Reply, the Second Barley-McBride Affidavit states that "[o]n the date of the inspection, Plaintiff's representative and Plaintiff began manipulation of the machine immediately on reaching it and prior to Plaintiff's expert obtaining any photographs." Second Barley-McBride Affidavit, ¶ 1. By so averring, Ms. Barley-McBride raises for the first time the contention that the machine was manipulated prior to any photographs being taken, contradicting Mr. Rennell's affidavit. Therefore, plaintiffs could not have deposed Ms. Barley-McBride on this issue because she first raised it in the Second Barley-McBride Affidavit after the extended discovery period ended. Accordingly, this Court concludes that plaintiffs' subpoena to Ms. Barley-McBride is not untimely.
2. Application of Shelton
Defendant also contends that plaintiffs cannot meet the first prong under Shelton, which requires that no means exist to obtain the information other than deposing counsel, because "there are numerous other sources" from which to obtain the information. Motion to Quash, p. 5 (citing Shelton, 805 F.2d 1323). Specifically, defendant argues that plaintiffs may obtain such information from his expert, his attorney and/or from "several other employees of Anchor Glass" rather than by deposing Ms. Barley-McBride. Id. This Court disagrees. Ms. Barley-McBride is the only witness who has filed an affidavit contradicting Mr. Rennell's affidavit. By doing so, Ms. Barley-McBride has offered herself as a witness on a substantive issue in this case. It is not immediately apparent to the Court that anyone else can testify as to the timing of the photographs and the manipulation of the machine. Accordingly, the Court concludes that plaintiffs have met the first prong of the Shelton test.
Plaintiffs also satisfy the remaining prongs of Shelton. First, defendant does not dispute that the information is relevant and non-privileged. Next, in arguing that plaintiffs cannot meet the third prong, defendant concludes that "[b]ecause the discovery sought may be obtained from other sources, undersigned counsel's deposition is not crucial to Hina's case." This conclusory argument is without merit. As discussed supra, it is not immediately apparent that there is another source for information to which Ms. Barley-McBride has voluntarily testified. Defendant moves, in part, to dismiss plaintiffs' claims because plaintiffs' manipulation of the machine precludes defendant from inspecting the machine in the same condition it was in at the time of the accident. See, e.g., Motion to Dismiss, p. 9. The affidavits supporting the parties' versions of the inspection may impact the final resolution of that motion. Therefore, Ms. Barley-McBride's testimony is crucial to this case. Accordingly, plaintiffs have satisfied the requirements of Shelton.
3. Burden
Defendant also argues that requiring Ms. Barley-McBride to appear for a deposition will result in "undue burden and unnecessary time and expense[.]" Motion to Quash, p. 5. Defendant's argument is unpersuasive. Unlike counsel in Shelton and Nationwide, Ms. Barley-McBride opened the door to her deposition by positioning herself as a substantive witness on a critical issue in this case. Cf. Wilfong v. Hord, No. C2-05-746, 2007 U.S. Dist. LEXIS 25137, at *3-6 (S.D. Ohio April 4, 2007) (permitting plaintiff to take deposition of affiant because prohibiting the deposition "would only present one version of the facts at issue in this case. Plaintiff is entitled to test the credibility and context of the statements made by Defendant Hord in his affidavit"). Having done so, counsel now cannot claim to be burdened by a deposition covering the averments made in the Second Barley-McBride Affidavit. Moreover, defendant chose to offer new testimony in the Second Barley-McBride Affidavit in its Reply. The Court concludes that it is appropriate to permit plaintiffs to explore and respond to this new evidence raised in defendant's Reply. Cf. United States v. Demjanjuk, 367 F.3d 623, 637-38 (6th Cir. 2004) (the court will not consider matters raised for the first time in a reply brief); Elliott Co. v. Liberty Mut. Ins. Co., 239 F.R.D. 479, 480 n. 1 (N.D. Ohio 2006) (granting leave to file surreply to address new issues raised for the first time in reply memorandum).
4. Re-opening of Discovery
Finally, defendant requests that the Court re-open discovery so that defendant can depose plaintiffs' counsel, Mr. Rennell and former Anchor employees. Reply, at 5-6. However, defendant has not established that its request to depose plaintiffs' counsel would meet the requirements of Shelton. Similarly, defendant has not established why the depositions of any of these witnesses are either necessary or timely. Nevertheless, and particularly in light of plaintiffs' continued discovery on the issue, the Court will grant defendant the opportunity to depose plaintiffs' expert on the issue of the timing of his photographs. In all other respects, defendant's request to conduct additional discovery is without merit.
To summarize, then, Motion of Anchor Glass Container Corporation to Quash the Subpoena Directed to Its Attorney Mary Barley-McBride, Doc. No. 41, is DENIED. It is ORDERED that the depositions of defendant's counsel and of plaintiffs' expert be completed by June 15, 2008. Plaintiffs may have until June 30, 2008, to supplement their Memo. in Opp. Defendant may have until July 10, 2008, to supplement its Reply.
II. Plaintiffs' Motion to File Supplemental Affidavit and to File Exhibit Manually , Doc. No. 45
Plaintiffs seek to file a supplemental affidavit of Plaintiff David Hina and to manually file a photograph attached to his affidavit. Plaintiffs' Motion to File Supplemental Affidavit and to File Exhibit Manually (" Motion to File Supplemental Affidavit"), Doc. No. 45. Plaintiffs contend that computer enhancement of a photograph taken by the Bureau of Workers' Compensation Commission ("BWC") "demonstrates that the spindle speed prior to the Plaintiff's inspection was approximately 35 rpm, a speed completely consistent with the affidavits of Mr. Hina (Exhibit 6) and Mr. Rennell (Exhibit 7) attached to Plaintiffs' memorandum contra." Id. Plaintiffs argue that "[t]his recently uncovered evidence is the first photographic evidence of speed uncovered prior to the Plaintiffs' inspection, and rebuts any claim of prejudice due to a change of speed." Id.
In response, defendant argues that Mr. Hina's affidavit is untimely because the photograph has been in plaintiff's possession from the date that the BWC investigator issued the report containing the photograph. Defendant Anchor Glass' Memorandum in Opposition to Plaintiffs' Motion to File a Supplemental Affidavit and to File Exhibit Manually (" Defendant's Memo. Contra"), Doc. No. 46, p. 2. Alternatively, defendant argues that plaintiffs have possessed the photograph since at least the deposition of Shane McLoughlin on December 14, 2007. Id. Defendant contends that plaintiffs have not explained why it has taken nearly two months since the end of the sixty-day discovery extension to proffer this affidavit. Id. at 3. Defendant also argues that the proffered affidavit is inadmissible because it fails to meet proper evidentiary standards. Id. Specifically, defendant points out that plaintiff Hina did not take the photograph and that the BWC investigator who did so has not authenticated the photograph. Id. Additionally, defendant argues that plaintiffs have offered no foundation as to the computer enhancement allegedly performed. Id. Finally, defendant contends that the proposed affidavit establishes that plaintiffs' expert manipulated the machine before taking photographs. Id. at 4-5.
In reply, plaintiffs represent that they obtained the BWC photographs only on December 14, 2007. Plaintiffs' Reply Memorandum in Re: Motion for Leave to File a Supplemental Affidavit (" Reply"), Doc. No. 47, pp. 1-2. Plaintiffs' counsel was advised shortly thereafter, by Cord Camera, that enhancement of the photographs was impossible; it was only later that plaintiffs' counsel learned that enlargement of the photographs was possible. Id. Plaintiffs argue that plaintiff Hina may properly testify that the photograph, once enlarged, suggests that the speed dial was at or about 35 based on its position in relation to the number 26 that is visible in the picture. Id. at 2. In response to defendant's authentication argument, plaintiffs contend that it was defendant that produced the CD from which the photograph was taken; defendant should therefore be estopped from questioning the authenticity of the photograph. Id. Alternatively, plaintiff seeks leave to depose the retired BWC investigator who took the photographs. Id. at 2-3.
Plaintiffs attribute any delay in the submission of this evidence to the faulty advice initially provided by Cord Camera and argue that they took appropriate action promptly upon learning that Cord Camera's advice was incorrect. Under these circumstances, the Court concludes that plaintiffs' affidavit and photograph are not untimely.
The parties also dispute the admissibility and relevance of plaintiffs' proffered affidavit and a photograph of the machine that purports to show the speed setting prior to the alleged manipulation of the speed dial. As discussed supra, the condition of the machine prior to any alleged manipulation is critical to the resolution of defendant's Motion to Dismiss.
Under these circumstances, the Court will permit plaintiffs to file the affidavit and photograph. However, in permitting this filing, the Court expresses no opinion on either the eventual admissibility of or weight to be given these documents in Judge Marbley's consideration of defendant's Motion to Dismiss. Accordingly, Plaintiffs' Motion to File Supplemental Affidavit and to File Exhibit Manually, Doc. No. 45, is GRANTED.
III. Defendant's Motion to Quash, or in the Alternative, Modify Plaintiffs' Subpoena to Today's Resourses [sic] Pursuant to Civ.R. 45(c)(3)(A) , Doc. No. 48
A. Background
Defendant seeks to quash a subpoena served on its expert, James Vaughan of Today's Resources, Inc., or, in the alternative, to order that the inspection take place only with certain restrictions. Defendant's Motion to Quash, or in the Alternative, Modify Plaintiffs' Subpoena to Today's Resourses [sic] Pursuant to Civ.R. 45(c)(3)(A) (" Motion to Quash"), Doc. No. 48, p. 1. Plaintiffs' subpoena seeks production of Mr. Vaughan's photo memory card and computer; defendant presumes that, by the subpoena, plaintiffs intend to determine whether there remain recoverable computer files of four deleted photographs of the milling machine. Id. at 1-2 (citing Subpoena directed to Today's Resources, Inc., attached as Exhibit A to Motion to Quash).
Defendant notes that plaintiffs deposed Mr. Vaughan on December 19, 2007, during the sixty-day discovery period. Id. at 1-2. During that deposition, defendant represents, Mr. Vaughan presented prints of four photographs of the milling machine, but plaintiffs' counsel did not question Mr. Vaughan regarding the digital storage of the images. Id. at 2. Since that time, Mr. Vaughan apparently deleted the photographs from his camera. Id.
Defendant first contends that the subpoena should be quashed because it seeks discovery beyond the authorized sixty day period. Id. at 2-3. Defendant further argues that plaintiffs have not established the relevance of the requested information by showing how the recovery of computer files of photographs affect the disposition of the Motion to Dismiss. Id. at 3. Noting that Mr. Vaughan relies on his computer, which contains confidential information, and camera to conduct business, defendant also complains that plaintiffs failed to articulate a protocol for inspecting this computer and camera, including whether Mr. Vaughan's data is at risk, whether Mr. Vaughan will be compensated if his data is damaged or whether the procedure can be limited in scope. Id.
Defendant asks that, if the subpoena is not quashed, the Court impose the following restrictions: (1) plaintiffs must produce a proposed protocol for the inspection in advance of the inspection; (2) plaintiffs must pay for a computer consultant to counsel Mr. Vaughan regarding plaintiffs' proposed protocol; (3) plaintiffs must compensate Mr. Vaughan, at his expert rate, for any time spent by him related to the proposed inspection; (4) defendant's counsel must be permitted to observe any activities related to the inspection; (5) plaintiffs' counsel must agree to terms for confidentiality, including an indemnification provision in the event of a breach; (6) plaintiffs' counsel must agree to compensate Mr. Vaughan for any damage to the camera; (7) the date for production must be rescheduled to permit these predicate conditions. Id. at 4-5.
In response, plaintiffs agree that the purpose of their subpoena is to recapture digital images, which were "printed out on poor quality paper or on a poor quality printer." Plaintiffs' Memorandum Contra Defendant's Motion to Quash (" Memo. Contra"), Doc. No. 49, p. 1. Plaintiffs argue that these pictures may reveal the speed of the machine at the time of the accident and therefore resolve issues raised in defendant's Motion to Dismiss. Id. Plaintiffs object to the Motion to Quash, first, on the ground that defendant violated S.D. Loc. R. 37.1, which requires extra-judicial efforts to resolve discovery disputes. Id. As to defendant's argument that the subpoena is untimely, plaintiffs argue that defendant has shown no prejudice. Id. (citing Defendant's Reply to Plaintiff's [sic] Memorandum Contra Defendant's Motion to Dismiss, Doc. No. 40, p. 5).
S.D. Ohio Civ. R. provides, in pertinent part, that "[o]bjections, motions, applications, and requests relating to discovery shall not be filed in this Court, under any provision in Fed.R.Civ.P. 26 or 37 unless counsel have first exhausted among themselves all extrajudicial means for resolving the differences."
As to defendant's proposed conditions related to the examination of Mr. Vaughan's computer and camera, plaintiffs agree to some of the terms, but not to others. Id. at 2-3. Plaintiffs propose to examine the memory card first and "will likely agree to compensate Mr. Vaughan for the cost of the memory card." Id. at 2. Depending on the results of that examination, plaintiffs may or may not seek to examine the computer. Id. Plaintiffs "are not likely to agree" to defendant's other proposed conditions, but are willing to discuss these issues with Mr. Vaughan and defense counsel. Id. at 2-3.
In reply, defendant insists that it has reasonably complied with S.D. Ohio Civ. R. 37.1, Defendant's Reply to Plaintiffs' Memorandum Contra Defendant's Motion to Quash (" Reply"), Doc. No. 50, pp. 1-2, and reiterates that the plaintiffs have failed to explain why the requested discovery was not conducted within the sixty-day discovery extension previously provided to plaintiffs. Id. at 2-3.
B. Standard of review
As noted supra, the trial court has the right to control the discovery schedule. See, e.g., Kennedy v. Cleveland, 797 F.2d 297, 300-01 (6th Cir. 1986). Rule 45 of the Federal Rules of Civil Procedure governs the issuance and enforcement of subpoenas. Rule 45(c)(3) provides, in pertinent part, as follows:
(A) On timely motion, the issuing court must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person — except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held;
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
C. Discussion
As an initial matter, the Court rejects plaintiffs' argument that defendant failed to exhaust extrajudicial means to resolve the dispute. Defendant's counsel contacted plaintiffs' counsel regarding the initial subpoena served upon Mr. Vaughan. See Exhibit 1, attached to Reply. In response, plaintiffs' counsel simply re-served the subpoena on Mr. Vaughan and defendant was reasonable in concluding that the parties were at impasse.
Turning to the merits of the present dispute, the Court notes that defendant has not pointed to any deficiency under Fed.R.Civ.P. 45(c)(3)(A) in moving to quash the subpoena. Instead, defendant argues that the subpoena is untimely because it was not issued during the sixty-day discovery period ending on January 25, 2008. This Court agrees. However, because this Court has permitted additional discovery and because this requested discovery may establish whether the speed of the milling machine at the time of the accident is ascertainable, the Court will permit this discovery. Therefore, to the extent that it seeks to quash plaintiffs' subpoena directed to Today's Resources, Inc. and Mr. Vaughan, Defendant's Motion to Quash, or in the Alternative, Modify Plaintiffs' Subpoena to Today's Resourses [sic] Pursuant to Civ.R. 45(c)(3)(A), Doc. No. 48, is DENIED.
To the extent that defendant's motion seeks to impose conditions on the production, however, the motion is GRANTED. The Court will expect the parties to attempt to agree on a protocol for examining the computer and camera and to agree on the appropriate terms of a confidentiality agreement prior to inspection. Absent agreement, the parties may confer with the Court. Moreover, counsel for defendant will be permitted to observe any activities undertaken on behalf of plaintiffs with regard to the production and inspection of the computer and camera. Plaintiffs must reimburse Mr. Vaughan for the cost of the memory card and any damage to the camera resulting from plaintiffs' inspection. Plaintiffs must reimburse Mr. Vaughan, at his expert rate, for time reasonably spent by him in connection with the production, inspection and restoration of his computer and camera.
All remaining discovery must be completed by June 15, 2008. Plaintiffs shall have until June 30, 2008, to supplement their opposition to defendant's Motion to Dismiss. Defendant shall have until July 10, 2008, to supplement its reply to the Motion to Dismiss. WHEREUPON, in light of the foregoing,
1. Motion of Anchor Glass Container Corporation to Quash the Subpoena Directed to Its Attorney Mary Barley-McBride, Doc. No. 41, is DENIED. Defendant will be permitted, however, to depose plaintiffs' expert on the issue of the timing of his photographs.
2. Plaintiffs' Motion to File Supplemental Affidavit and to File Exhibit Manually, Doc. No. 45, is GRANTED.
3. Defendant's Motion to Quash, or in the Alternative, Modify Plaintiffs' Subpoena to Today's Resourses [sic] Pursuant to Civ.R. 45(c)(3)(A), Doc. No. 48, is GRANTED in part and DENIED in part. To the extent that the motion seeks to quash plaintiffs' subpoena, defendant's Motion to Quash is DENIED. To the extent that the motion asks that certain conditions be imposed on the examination of Mr. Vaughan's computer and camera, defendant's Motion to Quash is GRANTED consistent with this Opinion and Order.
It is ORDERED that all discovery authorized by this Opinion and Order be completed by June 15, 2008. It is further ORDERED that plaintiffs shall have until June 30, 2008, to supplement their opposition to defendant's motion to dismiss. Defendant shall have until July 10, 2008, to supplement its reply to the motion to dismiss.