The opinion of the court was delivered by: Hon. Bernard G.Skomal U.S. Magistrate Judge United States District Court
ORDER: (1) DENYING PLAINTIFFS' MOTION TO ALLOW ADDITIONAL DISCOVERY; AND (2) DENYING PLAINTIFFS' REQUEST TO REMOVE CONFIDENTIALITY DESIGNATION[Doc. Nos. 42, 43]
On July 29, 2009, Plaintiff Lilyan Hassaine slipped on a puddle of washer fluid while shopping at Home Depot. Plaintiffs filed this action against Defendant alleging premises liability, negligence, and loss of consortium. Presently before the Court is Plaintiffs' motion for additional discovery, and for an order preventing Defendant from designating portions of Ms. Patterson's deposition "Confidential" under the operative Protective Order. Defendant opposes both requests.
On March 10, 2011, the Court held a hearing in order to set a briefing schedule for the present motion. (Doc. No. 41.) The Court directed the parties to file four-page briefs no later than March 18, 2011. (Id.) Since Plaintiffs are asking for discovery to be reopened, the Court directed Plaintiffs' counsel to include a declaration setting forth good cause and the circumstances constituting "excusable neglect" that warrant an extension of time.*fn1 See Fed. R. Civ. P. 6(b)(1). The parties each filed briefs on March 18, 2011. (Doc. Nos. 42, 43.)
I. PLAINTIFFS'MOTION TO REOPEN DISCOVERY
Federal Rule of Civil Procedure 16 states that "A schedule may be modified only for good cause and with the judge's consent." When the motion to extend time is made after time has expired, "the court may, for good cause, extend the time . . . if the party failed to act because of excusable neglect." Fed. R. Civ. P 6(b)(1). The determination of excusable neglect takes into account: "(1) the danger of prejudice; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reasons for the delay which includes whether it was within the reasonable control of the party seeking to show excusable neglect; and (4) whether that party acted in good faith." Coleman v. Blue Cross Blue Shield of Kan., 487 F. Supp. 2d 1225, 1234-35 (D. Kan. 2007).
Plaintiffs seek to reopen discovery in order to: (1) Obtain data reflecting the slips, trips and falls from all floor hazards in inside aisles at Home Depot stores for the last five years, including employee incidents, and not limited to product spills. (2) Data reflecting the number of incidents of liquid spills in inside aisle floors of Home Depot stores for the last five years, including employee incidents, and not limited to product spills. (3) Additional testimony from Monica Patterson-Home Depot's corporate designee regarding the document production.*fn2 (Doc. 43 at 4.)
Defendant opposes Plaintiffs' request to reopen discovery. (Doc. No. 42 at 3.) Defendant argues that all of the discovery being sought was the subject of two previous discovery motions and that Plaintiffs did not learn anything during Ms. Patterson's deposition that they should not have anticipated.
Defendant believes that Plaintiffs' motion is untimely, duplicative, and will result in prejudice. at 2.)
1. Judge Adler's Order Re: Discovery Dispute
This case was originally before Magistrate Judge Adler. On April 27, 2010, the parties filed a Joint Motion for Determination of Discovery Dispute regarding Home Depot's motion for a protective order. (Doc. No. 15 at 1.) Defendant sought a protective order to limit the scope of Plaintiffs' requests for production, including requests number five and eleven.*fn3 (Doc. No. 15 at 2.) Defendant objected to Plaintiffs' requests as being irrelevant, overbroad, and unduly burdensome. (Id.) Defendant specifically objected to request number five as "patently overbroad" because, as worded, "the request arguably calls for production of documents regarding an incident that may have occurred in 1983 at a store in Vermont in which a customer claimed they were injured when another customer bumped them with a shopping cart . . . ." (Id. at 22.) Likewise, Defendant objected to request number eleven because it asked for "all documents relating to, referring to, or reflecting slips, trips, and/or fall types [sic] accidents occurring at Home Depot stores nationwide over the last five years" because the request was overbroad with respect to time and scope and sought documents not relevant to the issues in the case. (Id. at 26.)
Judge Adler held a telephonic discovery conference on May 6, 2010, and issued an order on May 10, 2010 that directed Defendant to produce "summary-type documents reflecting a collection or amalgamation of data." (Doc. No. 17 at 1.) He limited the relevant incidents to those "concerning injuries caused by floor hazards resulting from product spills on inside aisles during the past three . . . ." (Id.) (emphasis added). Judge Adler specifically stated that "Defendant need not produce documents reflecting the minutiae or details of personal injury incidents occurring at each of Defendant's stores throughout the country." (Id.)
This case was transferred to the undersigned on June 4, 2010. (Doc. No. 18.) After the transfer the parties requested an extension of time to complete all fact discovery. (Doc. No. 19.) The Court granted the request and continued the fact discovery deadline to November 19, 2010.*fn4 (Doc. No. 26.)
The Court's order cautioned the parties that the dates and deadlines set in the amended scheduling order would "not be modified without a showing ...