137 F.R.D. 352 | D. Kan. | 1991
MEMORANDUM AND ORDER
This matter comes before the court on the motion of plaintiff Zack Pfeiffer (hereinafter “Pfeiffer”) for a protective order quashing the notice of defendant Eagle Manufacturing Company (hereinafter “Eagle Manufacturing”) to depose Paul Crowley (hereinafter “Crowley”) on July 15, 1991, in Norwood, Massachusetts. Crowley is an engineer. Defendant plans to elicit testimony from Crowley as to testing and standards applicable to a gasoline can that plaintiff claims is defective and unreasonably dangerous. Since the deadline for identifying expert witnesses expired over eight months ago and discovery has been closed for almost five months, plaintiff asserts that it would be patently unfair and prejudicial to permit the deposition of Crowley at this late date. We disagree. For the reasons stated below, plaintiff’s motion for a protective order will be denied by the court.
(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ...
Rule 26(c) provides that any party to an action, or any person to be examined, may move for a protective order. Fed. R.Civ.P. 26(c).
Pfeiffer moves for a protective order quashing the notice of Eagle Manufacturing to depose Paul Crowley.
On February 22, 1990, the court entered a discovery scheduling order. Defendants were directed by the court to identify their expert liability witnesses on or before August 1, 1990, pursuant to the provisions of Fed.R.Civ.P. 26(b)(4)(A).
Pfeiffer claims that he should not be required to travel to Massachusetts because defendants failed to comply with the court’s scheduling orders by identifying Crowley as a fact witness who had information concerning the case, or as an expert witness who had technical knowledge of the design and manufacture of the product in question. Eagle Manufacturing contends that it should be permitted to depose Crowley. Defendant asserts its witness list stating that “[r]epresentative(s) of Factory Mutual ... will testify concerning the conformance of standards” sufficiently identified Crowley. In addition, Eagle Manufacturing insists' that it is entitled to depose Crowley and use the deposition at trial pursuant to Rule 32(a)(3)(B) of the Federal Rules of Civil Procedure.
The purpose of a scheduling order is to encourage careful pretrial management. 6A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1522.1 (199G).
Rule 16(b)(3) provides, in pertinent part, that a Magistrate Judge when authorized by the district court “shall, after consulting with the attorneys for the parties ... by a scheduling conference ..., enter a scheduling order that limits the time ... to complete discovery.” Fed.R.Civ.P. 16(b)(3).
stimulate litigants to narrow the areas of inquiry and advocacy to those they believe are truly relevant and material. Time limits not only compress the amount of time for litigation, they should also reduce the amount of resources invested in litigation. Litigants are forced to establish discovery priorities and thus to do the most important work first.
The order and the timetable established by the order are binding. 6A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, supra, at § 1522.1; 3 J. Moore, Moore’s Federal Practice 1116.07 (1991).
Eagle Manufacturing would typically be required to call Crowley at trial and present his oral testimony, but under Rule 32(a)(3)(B), the use of an evidentiary deposition is appropriate where “the witness is at a greater distance than 100 miles from the place of trial or hearing.” See, e.g., Lear v. Equitable Life Assurance Soc’y, 798 F.2d 1128, 1135 (8th Cir.1986) (deposition of witness who lived more than 100 miles from place of trial in another state was properly admitted under Rule 32(a)(3)(B)), cert. denied, 479 U.S. 1066, 107 S.Ct. 953, 93 L.Ed.2d 1001 (1987); Alfonso v. Lund, 783 F.2d 958, 961 (10th Cir.1986) (deposition of doctor who was out of country at time of trial was properly admitted under Rule 32(a)(3)(B)); cf. In re Air Crash Disaster at Stapleton Int’l Airport, 720 F.Supp. 1493, 1501-03 (D.Colo.1989) (trial court denied plaintiffs’ request to admit deposition testimony of expert who resided more than 100 miles from place of trial because witness’ testimony was not relevant). Here, the witness resides in Massachusetts. Further, it is the policy of Crowley’s employer, Factory Mutual, to prohibit its employees from testifying at trial. Under these circumstances, the court is of the opinion that the use of an evidentiary deposition is appropriate.
While the deadlines set forth in the scheduling order could reasonably have been met if defense counsel had exercised due diligence,
IT IS THEREFORE ORDERED that the motion of plaintiff Zack Pfeiffer for a protective order quashing the notice of defendant Eagle Manufacturing Company to depose Paul Crowley (Doc. No. 96) is denied.
IT IS FURTHER ORDERED that the witness list of defendant Eagle Manufacturing Company (Doc. No. 57) is amended to include Paul Crowley.
IT IS FURTHER ORDERED that defendant Eagle Manufacturing Company pay the cost of travel and attorney fees of plaintiff’s counsel for the deposition of Crowley.
. Rule 26(c) of the Federal Rules of Civil Procedure provides in pertinent part as follows:
. See, e.g., Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir.1985) (party from whom discovery is sought has burden of showing "good cause” for protective order), cert. denied, 475 U.S. 1011, 106 S.Ct. 1186, 89 L.Ed.2d 302 (1986); Am. Benefit Life Ins. Co. v. Ille, 87 F.R.D. 540, 543 (W.D.Okla.1978) (movant has burden of showing “good cause" for protective order).
. Defendant Eagle Manufacturing designs and produces five-gallon gasoline cans, which Pfeif-fer alleges sprayed gasoline and exploded at a construction site in Wyandotte County, Kansas, severely burning plaintiff.
. See Letter from Bruce Keplinger to Brian Ni-ceswanger (June 20, 1991) (discussing Crowley’s knowledge of Eagle Manufacturing gasoline can).
. Rule 26(b)(4)(A)(i) of the Federal Rules of Civil Procedure provides as follows:
A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Fed.R.Civ.P. 26(b)(4)(A)(i).
. At the request of Eagle Manufacturing, an extension of discovery was again granted for the limited purpose of deposing plaintiffs spouse.
. The district court is vested with "broad discretion to preserve the integrity and purpose of the pretrial order.” Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir.1990) (quoting Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir. 1979)).
. Rule 16(b) was revised in 1983 "to give the district court more responsibility with respect to, and greater hegemony over, the scheduling and planning of discovery.” In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007, 1012 n. 3 (1st Cir.1988). The district court’s decision to exclude evidence as a means of enforcing a scheduling order "must not be disturbed" absent a clear abuse of discretion. Geiserman v. MacDonald, supra, 893 F.2d at 790-91 (citing Davis v. Duplantis, 448 F.2d 918, 921 (5th Cir.1971)).
. The local rules for the District of Kansas empowers resident Magistrate Judges with authority to hold pretrial conferences and issue pretrial orders “as are provided by the provisions of Fed.R.Civ.P. 16(b)." Local Rule 207.
. See also Grant v. Brandt, 796 F.2d 351, 355 (10th Cir.1986) (trial court properly refused to admit deposition of plaintiffs expert, on ground that he was not listed in pretrial order); Blue v. Rose, 786 F.2d 349, 351 (8th Cir.1986) (district court did not abuse discretion in refusing to permit testimony of defendants’ expert who was not listed in pretrial order).
. Eagle Manufacturing obviously did not establish discovery priorities and “perform the most important work first.” Plaintiff repeatedly requested information in the form of interrogatories and requests for production of documents as to any testing or inspection of Eagle Manufacturing’s gasoline can. Moreover, plaintiff served interrogatories in 1989 on defendant,' specifically inquiring as to the identity of trial experts. A party has an obligation to respond fully and completely to interrogatories, and to supplement preliminary interrogatory responses in the event that additional information comes into the possession of the party during the course of litigation. Fed.R.Civ.P. 26(e); Smith v. Ford Motor Co., 626 F.2d 784, 795 (10th Cir. 1980), cert. denied, 450 U.S. 918, 101 S.Ct. 1363, 67 L.Ed.2d 344 (1981). A defendant is precluded from introducing testimony on a matter covered by interrogatories where the defendant has failed to fully respond to interrogatories. Cage v. N.Y. Cent. R.R. Co., 276 F.Supp. 778, 786-87 (W.D.Pa.), aff'd, 386 F.2d 998 (3d Cir.1967). Crowley's contemplated testimony falls squarely within the scope of discovery and his name should have been submitted to plaintiff pursuant to the court’s scheduling orders.
