Opinion
Cause No. 1:02-CV-177.
December 8, 2005
OPINION AND ORDER
I. Introduction
This matter is before the Court on three motions filed by Plaintiff Samuel R. Large ("Large"): the first seeks to compel Defendant Mobile Tool International, Inc. ("Mobile Tool"), to respond to some long-outstanding written discovery requests (DE # 108); the second, filed after the close of discovery, asks that Mobile Tool be required to designate and produce a Rule 30(b)(6) deponent at a December 14, 2005, deposition (DE # 113); and the third requests a wholesale rescheduling of the discovery and dispositive motion deadlines (DE # 112).
Mobile Tool filed a response brief on November 30, 2005, just before the hearing on the motions, and Large filed a reply on December 2, 2005. ( See DE # 117, 119.)
For the reasons provided, the Court will GRANT Large's first motion to compel, DENY his second motion to compel, and take his third motion UNDER ADVISEMENT.
II. Factual and Procedural Background
To greatly oversimplify, this personal injury diversity case, 28 U.S.C. § 1332, stems from a June 19, 2000, accident. (Am. Compl. ¶ 15.) Large, who was then an employee of Davis H. Elliot Co., Inc., was using an aerial lift bucket truck manufactured by Mobile Tool and leased from TECO Inc., when it came into contact with electric lines that he was in the process of repairing. (Am. Compl. ¶¶ 9, 11, 15, 17.) As a result of his injuries, Large sued Mobile Tool, TECO, and others on May 28, 2002, for negligent design and/or manufacture, product liability, and breach of express and implied warranties. ( Id. ¶¶ 26-50.) Discovery began almost immediately, albeit on matters largely unrelated to the merits. (DE # 17.)
On October 7, 2002, the Court received word that Mobile Tool had filed for bankruptcy; the case was stayed (DE # 24), ultimately reopening on February 9, 2004 (DE # 28).
On April 7, 2004, Mobile Tool filed a third-party complaint against Davis Elliot, seeking defense and indemnification for the allegations contained in Large's complaint, breach of contract for failure to defend Mobile Tool against Large's allegations, and breach of contract for failure to provide insurance to TECO. (DE # 40.)
Much of the following ten months was then consumed in briefing Davis Elliot's motion to dismiss, so much so that on December 22, 2004, Large represented to the Court in connection with a motion to amend his complaint that discovery had "just begun." (DE # 73 ¶ 5.) In any event, Davis Elliot's motion to dismiss was denied on February 22, 2005. (DE # 78.)
The next day, February 23, 2005, the Court set the case for a scheduling conference for April 14, 2005 (DE # 80), and on April 13, 2005, the parties submitted a Report of Parties' Planning Meeting (DE # 82). The alternate schedule outlined in the Report, and the one eventually adopted by the Court (DE # 83), pegged November 1, 2005, as "[t]he last date for the completion of all [non-expert] discovery . . . [.]" (DE # 82 ¶ 3.) Retained expert reports were to be filed by December 1, 2005, and January 15, 2006, from Large and Defendants respectively, and the dispositive motion deadline was set as March 1, 2006. (DE # 82 ¶¶ 3, 4.) The final pretrial conference was scheduled for July 17, 2006, with the trial to commence on August 22, 2006. (DE # 83.)
As early as May 13, 2005, Large's informal request for a Rule 30(b)(6) deposition of Mobile Tool was rebuffed, ostensibly because Mobile Tool was still being liquidated in bankruptcy, with no officers, directors, managing agents, or employees who could offer such testimony. ( See Def.'s Mem. in Opp'n to Pl.'s Mot. to Compel (DE # 117) ("Def.'s Resp. Br.") Ex. A.) This issue would be re-visited again and again by Large and Mobile Tool in September and October, and also arose at Large's deposition in October, with Mobile Tool maintaining the same position it articulated in May. ( See id. Ex. B.)
The dispute concerning documents is of even longer duration. On February 26, 2004, shortly after the case was re-opened, Large served Mobile Tool with a Second Set of Interrogatories and a Request for Production of Documents, and on August 12, 2005, it served yet another request. Mobile Tool takes the same position concerning documents that it took regarding deponents, but with an added twist: all of Mobile Tool's documents were purchased out of the bankruptcy estate by another entity, Altec, on May 8, 2003, as a part of the purchase of Mobile Tool's assets, and therefore Mobile Tool has no obligation to produce documents legally in the possession of a third party purchaser of assets. Nevertheless, as late as October 24, 2005, counsel for Mobile Tool represented to Large's counsel that he was still "trying to find a way to make documents . . . available without resorting to [third party] subpoenas." ( See Def.'s Resp. Br. Ex. B.)
Eventually, on October 26, 2005, Large filed a motion to compel (DE # 106) concerning the document requests and interrogatories, but that motion was denied on October 27 (DE # 107), given his failure to provide the necessary certification under Rule 37(a)(2)(B). See Fed.R.Civ.P. 37(a)(2)(B). On November 9, 2005, Large filed an amended motion to compel that did not strictly comply with the requirements of Local Rule 37.1, see N.D. Ind. L.R. 37.1, but the Court decided to set the matter for a hearing anyway. (DE # 108, 111.) On November 23, 2005, Large filed a motion to compel Mobile Tool to submit to a Rule 30(b)(6) deposition, and that too was set for hearing. (DE # 113, 118.)
Mobile Tool offers the same arguments it maintained throughout the many months of informal discussions with Large's counsel — that essentially Mobile Tool no longer exists, there is no one who can answer the interrogatories, and any document mining has to be done through non-party Altec. Of course, the fact that both motions to compel (as well as the Rule 30(b)(6) deposition notice) were filed after the last date for the completion of all discovery leads to Mobile Tool's objection that all of this comes too late.
Large argues that while Mobile Tool may have indeed sold its documents to Altec, it maintained access to the documents, essentially control, through its Asset Purchase Agreement ("APA") with Altec and, furthermore, that Mobile Tool used the "meet and confer" requirements of the discovery rules to string Large along until October 24, 2005. ( See Pl.'s Reply to Def.'s Resp. Br. (DE # 119) ("Pl's Reply") ¶ 12.)
III. Discussion A. Large's Untimely Rule 30(b)(6) Deposition Notice Results in an Untimely Motion to Compel
Rule 37, which deals with discovery, provides no deadlines for filing a motion to compel. See Fed.R.Civ.P. 37. However, Rule 16(b)(3) provides that a Court can impose time limits on discovery, see Fed.R.Civ.P. 16(b)(3), and in the words of the Report of Parties' Planning Meeting offered by counsel, this Court set November 1, 2005, as "[t]he last date for the completion of all [non-expert] discovery . . . [.]" (DE # 82 ¶ 3).
Clearly, the Rule 30(b)(6) deposition contemplated by Large is non-expert discovery. See generally Fed.R.Civ.P. 30(b)(6). Therefore, when he served the Rule 30(b)(6) notice on November 23, 2005, setting a December 14, 2005, deposition date, it immediately drew a timeliness objection from Mobile Tool. Of course, the notice is indeed late, and not just by twenty-three days; Local Rule 30.1 provides: "[u]nless agreed by counsel or otherwise ordered by the court, no deposition shall be scheduled on less than fourteen (14) days notice." N.D. Ind. L.R. 30.1. Therefore, any Rule 30(b)(6) deposition notice should have been served by October 14, 2005, to meet the November 1, 2005, discovery deadline, making Mobile Tool's notice late by well over a month.
Therefore, unless Large can show either "good cause" under Rule 16(b), see Fed.R.Civ.P. 16(b), or "excusable neglect" under Rule 6(b), see Fed.R.Civ.P. 6(b), for missing the deadline, Large's tardy Rule 30(b)(6) deposition notice should be quashed, and his motion to compel denied. Rossetto v. Pabst Brewing Co., 217 F.3d 539, 542 (7th Cir. 2000); Hughes v. LaSalle Bank, N.A., No. 02 Civ. 6384MBMHBP, 2004 WL 414828, at *2 (S.D.N.Y. March 4, 2004) (affirming Magistrate Judge's ruling that Rule 30(b)(6) deposition notice was untimely when it was served three days after the discovery deadline).
While there is no "precise test" for what constitutes good cause, Bachenski v. Malnati, 11 F.3d 1371, 1377 (7th Cir. 1993), it generally exists where a party, despite its diligence, cannot reasonably meet the deadline, Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995). This standard actually dovetails with Rule 6(b)'s more general pronouncement that an expired deadline can be extended in the case of "excusable neglect." Fed.R.Civ.P. 6(b). Excusable neglect is "a somewhat elastic concept," Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 391 (1993), demanding an equitable determination that can "encompass situations in which the failure to comply with a filing deadline is attributable to negligence." Robb v. Norfolk W. Ry. Co., 122 F.3d 354, 355-56 (7th Cir. 1997) (quoting Pioneer, 507 U.S. at 394). The relevant factors in this equitable determination include "the danger of prejudice to the defendant, the length of the delay and its potential impact on the judicial proceedings, the reasons for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted [with] good faith." Id. at 359 (quoting Pioneer, 507 U.S. at 395).
Large's apparent argument to all of this is that Mobile Tool "ha[d] no basis in law" for resisting such a deposition. ( See Pl.'s Reply at 8.) Large also contends that Mobile Tool led him to believe that documents would be forthcoming, but then never produced them, and that discovery is actually still ongoing between Large and Davis Elliot. ( See id. at 8-10.)
On this score, it is clear that neither good cause nor excusable neglect can be shown. After a few false starts, Large says that discovery only began in the case in December 2004, and that by early May 2005, he was raising the issue of a 30(b)(6) deposition. Nevertheless, Large continued to fence with Mobile Tool for months on the issue, long after it became obvious that Mobile Tool would not (or in its view, could not) produce a deponent. Clearly, except for the sixteen months during which the case was stayed, Large could have at any time served a Rule 30(b)(6) deposition notice to Mobile Tool to explore its legal basis for resisting such a deposition; however, Large failed to do so during the eleven months of discovery after December 2004 or within the six and one-half months of formal discovery established at the April 14, 2005, scheduling conference. This scenario is the antithesis of due diligence, Tschantz, 160 F.R.D. at 571; repeated overtures for discovery in the face of continued rejection, an ostrich-like attitude, cannot form the basis for establishing either "good cause" or "excusable neglect."
Moreover, to now allow such a deposition would mean even more delay. At this time, discovery should be over, with the parties attending to their expert disclosures. Any Rule 30(b)(6) deposition of Mobile Tool will delay that process, likely for months, and will result in a wholesale rescheduling of all the remaining deadlines, including the trial. This could have been avoided if Large had served his Rule 30(b)(6) deposition notice earlier, when it became clear that Mobile Tool would not voluntarily be producing a witness.
Finally, the Court does not see why the informal discovery between Davis Elliot and Large is relevant to this issue, given that no one has suggested that the timing of the proposed Rule 30(b)(6) deposition has ever hinged on the discovery that Large and Davis Elliot are doing.
Therefore, based on the foregoing, Large's motion to compel a Rule 30(b)(6) deposition will be denied.
B. Large's Motion to Compel Answers to Interrogatories and Production of Documents Is Timely, and the Sale of Its Assets Does Not Relieve Mobile Tool of Its Duty to RespondUnlike the issue concerning the Rule 30(b)(6) deposition, Large did issue timely interrogatories and document requests to Mobile Tool. Rather, the issue here is whether the motion to compel responses from Mobile Tool is timely, and whether it had any legal duty to respond given its asset and document sale to Altec out of the bankruptcy estate.
The latter point invokes Rule 34, which provides that a responding party must produce all responsive documents in its "possession, custody or control." Fed.R.Civ.P. 34(a). Documents are in the "possession, custody or control" of the responding party if "the party has actual possession, custody, or control, or has the legal right to obtain the documents on demand," In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995), or stated somewhat more expansively and as Large argues, if that party has the right, authority, or practical ability to obtain the documents from a nonparty to the suit. Bank of N.Y. v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135 (S.D.N.Y. 1997).
Along the same line, Rule 33 imposes a duty on the served party to answer each interrogatory "separately and fully." Fed R. Civ. P. 33(a), (b). The served party's duty to fully answer a particular interrogatory is relieved only if it makes a valid and timely objection. Fed.R.Civ.P. 33(b). If the served party is unable to supply the requested information, it cannot refuse to answer, but must state under oath that it is unable to provide the information and describe its efforts to obtain the information. Hansel v. Shell Oil Corp., 169 F.R.D. 303, 305 (E.D. Pa. 1996); see also 7 James Wm. Moore, et al., Moore's Federal Practice ¶ 33.102[3] (3rd ed. 2003).
Clearly, Mobile Tool does not have actual possession, custody or control of the documents; however, Large maintains that Mobile Tool has a legal right to the documents, or at least the practical ability to obtain them from Altec, through the reservation of rights contained in the APA approved by the Bankruptcy Court. More particularly, Section 9.1(a) and (c) of the APA provide in pertinent part:
(a) The parties acknowledge that after Closing, [Mobile Tool] or [Altec] or their respective successors, may need access to information or documents in the control or possession of the other party . . . to satisfy . . . legal requirements, and to . . . defend third party claims. With respect to defending third party product liability claims, such information and documents shall include, without limitation, all manufacturing records, engineering drawings, sales correspondence, QA records and all information associated with the manufacturing, design, testing and servicing of products.
* * * *
(c) Each party shall cooperate fully in connection with, and make available for inspection and copying by, the other party, its successors, and their respective employees, agents, counsel . . . upon written request, such books, records documents and other information to the extent reasonably necessary to facilitate the purposes set forth in subsection (a) above and for other legitimate corporate purposes.
(Pl.'s Reply Ex. A (APA) ¶ 9.1(a), (c).)
Thus, Large says that the access Mobile Tool contracted for in the APA equals "control" under Rule 34. However, counsel for Mobile Tool argues that as insurance defense counsel he does not have access to the documents, as opposed to, say, Mobile Tool's counsel for the bankruptcy estate. Of course, the term "control" is to be broadly construed, and legal restrictions that may limit a party's ability to obtain certain documents are not necessarily determinative. Japan Halon Co., Ltd. v. Great Lakes Chem. Corp., 155 F.R.D. 626, 627 (N.D. Ind. 1993) (compelling plaintiff corporation to produce documents in custody of parent even though Japanese law would not permit compliance with defendant's discovery request).
As Large has demonstrated, during the course of this litigation Mobile Tool sold to Altec the documents purportedly responsive to Large's discovery request. Since Mobile Tool failed to keep any copies, the legal effect of that transaction for purposes of this motion was to make Altec the document repository for Mobile Tool, with the documents accessible by Mobile Tool upon mere written request. Moreover, access for Mobile Tool's counsel was contemplated and provided for to "defend[] third party product liability claims." ( See Pl.'s Reply Ex. A (APA) ¶ 9.1(a).) Finally, we do not know what other "legal requirements" ( id.) were contemplated by Altec and Mobile Tool at the time of the transaction, but it is easy to imagine that Large's document request was certainly one of them. Accordingly, because "[i]t would be patently unfair if [Mobile Tool] were able to continue to discover relevant information from [Altec] while relegating [Large] to seek information from [Altec] as a non-party," Bank of N.Y., 171 F.R.D. at 149, Mobile Tool's counsel will be directed to submit a written request to Altec to gain access to the documents deposited pursuant to the APA for purposes of responding to Large's outstanding document request.
As for the outstanding interrogatories and the apparent argument that Mobile Tool has no one to respond, the Court reminds Mobile Tool that a corporate agent need not have "first-hand personal knowledge" of the facts reflected in the answers. City of Chicago v. Reliable Truck Parts Co. Inc., No. 88 C 1458, 1989 WL 32923, at *2 (N.D. Ill. March 31, 1989) (citing In Re Folding Carton Antitrust Litig., 76 F.R.D. 417, 419 (N.D. Ill. 1977)). The agent, which can be its counsel, see, e.g., Wilson v. Volkswagen of Am., 561 F.2d 494 (4th Cir. 1977), cert. denied, 434 U.S. 1020 (1977), can instead gather and obtain from books, records, or other sources, the information necessary to answer the interrogatories and then sign them on behalf of the corporation. City of Chicago, 1989 WL 31923 at *2. Therefore, interrogatory answers from Mobile Tool also appear to be appropriate.
Finally, we turn to Mobile Tool's argument that Large's motion to compel comes too late. There is no time limit on a motion to compel; nonetheless, the motion should be made within a reasonable time, or the court may find there has been a waiver, particularly if the non-moving party would be prejudiced. Kendrick v. Heckler, 778 F.2d 253 (5th Cir. 1985); Suntrust Bank v. Blue Water Fiber L.P., 210 F.R.D. 196, 200-01 (E.D. Mich. 2002) (collecting cases); see, e.g., Gault v. Nabisco Biscuit Co., 184 F.R.D. 620, 622 (D. Nev. 1999) (denying as untimely motion to compel further responses when filed one hundred and thirty-six days after receipt of allegedly deficient responses and seventy-six days after close of discovery, and no showing that delay was caused by matters outside moving party's control).
Here, Large's first motion to compel was actually filed before the close of discovery and only denied because it lacked certification. Of course, Large demonstrated in his amended motion that ample efforts to resolve the matter without court intervention had been undertaken. Accordingly, the amended motion to compel should be read to relate back to the original motion, making it timely. Moreover, it is apparent that, unlike its unequivocal rejection of Large's request for a Rule 30(b)(6) deponent, Mobile Tool continued to suggest up until the final hour that it might actually respond to the written discovery requests, making the timing of the motion to compel understandable. (Def.'s Resp. Br. Ex. B.)
Given that discovery is now closed, with the exception of Mobile Tool's responses to the outstanding interrogatories and document requests (and such other discovery that Large and Davis Elliot may be doing), it is hard to perceive any prejudice. Mobile Tool's responses will be ordered due in thirty days and, assuming they are satisfactory, that will end factual discovery. In addition, the Court will set this matter for a further scheduling conference to adjust expert reports and such other dates or deadlines that may need revision.
IV. Conclusion
Based on the foregoing, Large's motion to compel a Rule 30(b)(6) deposition (DE # 113) is DENIED; however, his motion to compel interrogatory answers and document production (DE # 108) is GRANTED, and Mobile Tool must respond within thirty days. Large's motion to extend the discovery schedule (DE # 112) remains UNDER ADVISEMENT and is set for a telephone conference for December 14, 2005 at 10:00 a.m., with the Court initiating the call. The Court on its own motion vacates the deadline for Large to submit an expert report and anticipates resetting that deadline at the December 14 conference.