United States District Court, W.D. Arkansas, Harrison Division
JACKIE ALBRIGHT, as Parent and Next Best Friend of CHILD DOE PLAINTIFF
MOUNTAIN HOME SCHOOL DISTRICT; DEBBIE ATKINSON, Director of Special Education; and SUSANNE BELK, BCBA Consultant DEFENDANTS
OPINION AND ORDER
TIMOTHY L. BROOKS STATES DISTRICT JUDGE
before the Court are Defendants Mountain Home School
District's ("District"), Debbie Atkinson's,
and Susanne Belk's Motion to Extend Discovery Deadline
(Doc. 58) and Motion to Quash Plaintiff's Notices of
Depositions (Doc. 59); Plaintiff Jackie Albright's
Responses and Supplement in opposition to these Motions
(Docs. 60-62); and Defendants' Combined Reply (Doc. 64).
As explained below, both Motions are GRANTED IN PART
AND DENIED IN PART.
Case Management Order ("CMO") in this case
established a discovery deadline of March 24, 2017. (Doc. 34,
p. 2). It informed the parties that they "may conduct
discovery beyond this date if all parties are in agreement to
do so." Id. But it also stated that "the
Court will not resolve any disputes which may arise in the
course of extended discovery." Id. It required
that "[a]ll discovery requests must be propounded
sufficiently in advance of the discovery deadline to allow
for a timely response." And it cautioned the parties
that "[t]he Court will not grant a continuance because a
party does not have time in which to depose a lay or expert
witness." Id. at 3. Elsewhere, the CMO warned:
"The deadlines set forth above are firm. Extensions
and/or continuances will not be considered absent very
compelling circumstances." Id. at 7.
February 21, 2017, Plaintiff propounded written discovery and
deposition notices on Defendants. See Doc. 62-1.
Specifically, Plaintiff provided notice of intent to take the
depositions of District Superintendent Jacob Long, Ms.
Atkinson, and Ms. Belk, at the District's administrative
offices on March 23 at 10:00am, March 23 at 2:00pm, and March
24 at 10:00am, respectively. See Doc. 62-2. The
following day, new counsel entered their appearances on
behalf of Defendants, see Docs. 55-57, and
propounded written discovery to Plaintiff, see Doc.
ask the Court to extend the discovery deadline to April 15,
2017, and to extend the dispositive motions deadline from
March 31 to April 30, 2017, (Doc. 58, ¶¶ 5-6), or
in the alternative, to compel Plaintiff to provide early
responses to their written discovery, shortening her deadline
by at least one business day to March 23, 2017. See
Id. at ¶ 7. The deadlines in this case were
thoroughly discussed at the case management hearing on July
22, 2016, and the CMO was entered three days later.
Nevertheless, it appears the parties, having ample notice of
the deadlines in this case and of this Court's general
reluctance to extend them, decided to let an additional seven
months pass before beginning discovery. The only reason
Defendants offer for why the Court should extend these
deadlines now is that they recently retained new counsel, who
presumably wish their client had begun discovery before they
were retained. See Id. at ¶ 4. But the Court
does not believe regrets of this sort, however well-founded,
constitute "very compelling circumstances"
warranting an extension of the discovery deadline. (Doc. 34,
also ask the Court to quash the deposition notices that
Plaintiff served on Defendants. (Doc. 59, p. 2). Defendants
offer two reasons in support of this request: (1) their lead
counsel is unavailable on the noticed dates, and (2)
"these employees' contracts do not allow them to be
compelled to sit for depositions as parties to this
litigation on those dates, " which fall on spring break.
See Id. at ¶ 2. The Court does not find the
first reason persuasive, because each Defendant is presently
represented by no less than four counsel of record-one who
has been on this case from its inception and has been
practicing law in Arkansas since 1981, and the other three
who have been practicing law in Arkansas since 1991, 1993,
and 2012. See Id. at p. 3. The Court has not been
given any reason to believe that any of the three non-lead
counsel are unavailable on the noticed dates or incapable of
competently defending the noticed depositions on those dates.
the second reason, the Court observes that Ms. Atkinson and
Ms. Belk are named parties to this case; and although Mr.
Long is not a party to this case, it appears that Plaintiff
is seeking the District's deposition through him under
Fed.R.Civ.P. 30(b)(6) in his capacity as Superintendent.
See Doc. 58-3, p. 2 ("Please note the
Depositions scheduled for March 23 & 24 are of the named
Defendants . . . ."); cf. Gowan v. Mid Century Ins.
Co., 309 F.R.D. 503, 513 (D.S.D. 2015) ("If a
corporation is a party to an action, an opposing party may
name a particular person to depose, but that person must be
an officer, director, or managing agent of the corporate
party in order to command that person's appearance via a
notice of deposition served on the corporate party's
attorney. If the person selected for deposition is not an
officer, director, or managing agent, then the party seeking
discovery must subpoena that deponent just as with any
nonparty." (internal quotation marks and citations
omitted)). In other words, all three individuals have an
independent obligation under the Federal Rules of Civil
Procedure to appear for their properly-noticed depositions,
regardless of whether they have any contractual duty to do
so. See Fed. R. Civ. P. 37(d)(1)(A)(i) (permitting
the Court to order sanctions if "a party or a
party's officer, director, or managing agent-or a person
designated under Rule 30(b)(6) or 31(a)(4)-fails, after being
served with proper notice, to appear for that person's
deposition"). So the Court also finds Defendants'
second reason to quash unpersuasive.
the Court observes that in their Reply, Defendants appear to
offer a new, additional argument that the depositions should
be quashed because they are unduly burdensome. Defendants
As non-contract days, the District's superintendent has
scheduled time off with his family (and his wife has taken
Paid Time Off from her job), and the District's most
knowledgeable and instrumental person to assist with the
deposition preparation (Cassy Barnhill), and who attended
Plaintiffs and the former superintendent's depositions as
the District's representative, has rented a house and is
scheduled to be at her stepdaughter's wedding in Eureka
Springs for preparations on Friday, March 31 and the wedding
the following day. Additionally, Suzanne Belk has paid $3,
500 for an out-of-state continuing education, which she
provisionally has cancelled (without a possibility of refund)
because of the deposition notices, but will attend if
permitted. Finally, Debbie Atkinson and her husband were
scheduled to visit their son and grandchildren in Colorado.
(Doc. 64, ¶ 5).
Civ. P. 45(d)(3)(A)(iv) requires the Court to
"quash or modify a subpoena that. . . subjects a person
to undue burden." And the Federal Rules also state that
the Court "may, for good cause, issue an order
to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, " Rule 26(c)(1)
(emphasis added), by "specifying terms, including time
and place ... for the disclosure or discovery, " Rule
26(c)(1)(B). Here, the Court finds that the facts recited in
the preceding paragraph demonstrate "specific prejudice
or harm" that the noticed deponents will suffer if the
deposition notices are not quashed. See Kinzer v.
Remington Arms Co., Inc., 2011 WL 1659883, at *3 (D.
Neb. May 3, 2011). Thus, the Court must quash or modify the
notices. However, the Court also finds that Plaintiff
provided reasonable notice to the deponents (here, thirty
days prior to the depositions and thirty-one days prior to
the discovery deadline), and that it would unfairly prejudice
her to prevent her from taking these depositions before the
dispositive motions deadline has passed.
THEREFORE ORDERED that Defendants Mountain Home School
District's, Debbie Atkinson's, and Susanne Belk's
Motion to Extend Discovery Deadline (Doc. 58) and Motion to
Quash Plaintiffs Notices of Depositions (Doc. 59) are GRANTED
IN PART AND DENIED IN PART as follows the depositions of
Jacob Long, Debbie Atkinson, and Suzanne Belk will not be
taken on March 23 or 24, 2017. However, Defendants'
counsel shall accommodate the rescheduling of these three
depositions at the convenience of Plaintiffs counsel for
dates that are no later than April 21, 2017. The discovery
deadline remains March 24, 2017 for all ...