Summary
finding subpoenas untimely when they had been served on the final day of the discovery period, "thus ensuring that [responses] would be received, if at all, only after the conclusion of discovery"
Summary of this case from Wood v. Mut. Redevelopment Houses, Inc.Opinion
No. 00 Civ. 8808 (LAK)
January 3, 2003
ORDER
This design defect product liability case involves a knee implant device that apparently was designed jointly by the Hospital for Special Surgery ("HSS") and defendant Wright Medical Technology, Inc. ("Wright"). Plaintiff by letter dated December 17, 2002 seeks to amend the pretrial order to include documents obtained after the discovery deadline from HSS as exhibits and to reopen discovery to permit up to three additional days of depositions of Wright and/or the authors of the documents. The documents in question apparently include some that were prepared by HSS and others that were prepared by Wright but found in HSS's files. Wright has ignored plaintiff's request for an explanation of why Wright did not produce its own copies of the latter group of documents.
The discovery deadline in this case was July 26, 2002. Despite the fact that plaintiff knew that HSS was a co-designer of the product at issue here, she did not serve the subpoena pursuant to which the documents now at issue were produced until July 26, 2002, thus ensuring that they would be received, if at all, only after the conclusion of discovery. Plaintiff has offered no explanation for her failure to seek this material earlier.
There is no persuasive reason to relieve plaintiff of the consequences of her own failure to seek discovery from HSS in a timely fashion. Accordingly, she will not now be permitted to conduct any depositions of HSS personnel or to add to the pretrial order as exhibits documents authored by and entirely internal to HSS.
The documents produced by HSS that originated with or were sent to, but not produced by, Wright are another matter, as their appearance coupled with Wright's failure to explain why Wright did not produce them earlier suggest the possibility that Wright did not comply with its discovery obligations. Accordingly, discovery is reopened to the extent that plaintiff may conduct a Rule 30(b)(6) deposition of Wright for the purpose of determining whether Wright possessed or controlled documents, copies of which recently were produced by HSS, and, if so, why they were not produced. That deposition is to be completed this month. Plaintiff thereafter may apply to add as exhibits any documents which were withheld improperly by Wright in its own document production and, if documents were withheld improperly, to conduct further depositions.