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Hoot Winc, LLC, A Kansas Limited Liability v. Rsm Mcgladrey Financial

February 18, 2011


The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge, U.S. District Court



On February 8, 2011, the Court received Plaintiff's letter request to schedule a discovery teleconference in the above entitled matter. Plaintiff seeks an in camera review of redacted documents produced by Defendant. Plaintiff and Defendant have been unable to informally resolve their dispute regarding redacted documents. Defendant objects to Plaintiff's request for a discovery conference on the ground that the four redacted documents at issue were produced to Plaintiff, in hard copy form and with clearly marked "Redacted" stamps, on July 2, 2009 - more than a year-and-a-half before Plaintiff raised the issue with the Court and one year before the close of discovery in this case. As explained herein, Plaintiff has failed to demonstrate the good cause necessary to support its extremely untimely request for judicial intervention. Accordingly, Plaintiff's request for a discovery teleconference and in camera review is DENIED.


The instant case was removed to federal court more than two years ago on August 22, 2008. [Doc. No. 1.] Since the removal of the action, the Court has presided over numerous discovery disputes as well as requests for extensions. [Doc. Nos. 38, 88, 89, 93, 106, 133, 135, 138, 141, 144, 149, 154, 155, 156, 183, 218, and 221.] Indeed, on July 9, 2010, the Court signed a Fourth Amended Scheduling Order, proposed by the parties in this case, after consideration of their joint request for a limited discovery extension to complete witness depositions and on a showing of good cause. [Doc. No. 150.] In the Fourth Amended Scheduling Order, it clearly states, "All discovery except as otherwise allowed herein, shall be completed by all parties on or before July 9, 2010." [Doc. No. 150 at 2:6-7]

The Fourth Amended Scheduling Order is the binding and operative scheduling order for this case. With respect to discovery disputes, it specifically states, "Counsel shall promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26.1(a). All discovery motions shall be filed within 30 days after counsel have met and conferred and reached an impasse with regard to any particular discovery issue, but in no event shall discovery motions be filed more than 30 days after the close of discovery."*fn1 [Id. at 2:11-15.].


Rule 16 of the Federal Rules of Civil Procedure authorizes the Court to enter binding scheduling orders to help facilitate and control the pretrial phase of litigation.*fn2 As expressly articulated in the Rule, these scheduling orders can be used to limit the time for filing dispositive motions, to limit the time for the completion of discovery, to limit the time for the identification of experts, and to set otherwise ordinary and necessary pretrial deadlines.*fn3 Seeking to promote judicial economy, the purpose of Rule 16 is to compel federal courts to more forcefully manage their dockets.*fn4 The Ninth Circuit is highly protective of this particular rule, as it deems Rule 16 to be an essential tool for ensuring the practical functionality of the federal judiciary.*fn5

Once entered, "[t]he scheduling order 'control[s] the subsequent course of action' unless modified by the court."*fn6 However, scheduling orders can properly be entered only "after consultation with the attorneys for the parties," and such orders "shall not be modified except by leave of court and upon a showing of good cause."*fn7 As the case law has unfolded, Rule 16(b)'s "good cause" standard primarily analyzes the diligence of the party seeking relief from the court.*fn8 Using diligence as its lynchpin for this analysis, the Ninth Circuit is willing to find "good cause" for modification when scheduling deadlines cannot be met despite a party's diligence.*fn9

"Good Cause" exists for modifying a pretrial scheduling order if a party can prove"[the schedule] cannot reasonably be met despite the diligence of the party seeking the extension."*fn10

However, if the party seeking modification was not diligent in his or her pretrial preparations, the inquiry should end there and the measure of relief sought from the court should not be granted.*fn11 The party seeking to continue or extend a particular issue beyond the deadlines established in a court's scheduling order bears the burden of proving "good cause" for modifying the order.*fn12

Here, the Court finds diligence and good cause have not been shown. Plaintiff seeks relief from the court nearly seven months after discovery has closed concerning documents produced to it a year-and-a-half ago in July 2009. There is no dispute that the documents were stamped "Redacted" at the time of production. Despite the large volume of documents produced in this case, the Court finds Plaintiff had, at best, a year to review and assess the documents before the July 9, 2010 discovery deadline arrived. Plaintiff has failed to offer any explanation for why these documents could not have been brought to the Court's attention before the discovery deadline (which had already been extended several times) passed. Plaintiff's request for a discovery teleconference and in camera review of documents is unjustifiably late and for that reason is DENIED.


In this case, Plaintiff fails to offer good cause for deviating from the discovery deadlines established in the Court's Fourth Amended Scheduling Order. Plaintiff had access to the redacted documents for a year-and-a-half before raising the issue. Further, Plaintiff's request comes seven ...

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