United States District Court, D. New Mexico
ORDER ON MOTIONS THAT RELATE TO DISCOVERY
William P. Lynch United States Magistrate Judge.
parties have filed the following motions that relate to
1. Plaintiffs' motion to extend the deadline for their
insurance expert to supplement his opinions on bad faith (Doc
2. Liberty Mutual's motion for protective order
concerning Plaintiffs' Rule 30(b)(6) notices (Doc. 200);
3. Plaintiffs' motion to take a second deposition from
Julian Leyba (Doc. 206); and
4. Plaintiffs' motion to extend discovery deadlines (Doc.
Order will resolve these motions. I granted the parties
proposed stipulated order and allowed the parties to withdraw
Plaintiffs' third motion to compel (Doc. 218) and Liberty
Mutual's motion for protective order pertaining to
Plaintiffs' motion to depose Mike Westby (Doc. 242).
their motion to extend the deadline for their insurance
expert, Paul Brenkman, to supplement his opinion on the bad
faith actions of Liberty Mutual, Plaintiffs assert that
Liberty Mutual has improperly objected to Plaintiffs'
discovery requests and has otherwise impeded the discovery
process in this case. Plaintiffs specifically complain that
Liberty Mutual refused to identify the litigation adjuster
that handled Plaintiffs' claim after its denial on March
22, 2013, which, according to Plaintiffs, is contrary to the
scheduling order that I entered on July 12, 2016. A cursory
review of the order contradicts that assertion. The
scheduling order allows Plaintiffs to depose Steve Harkness,
his supervisor, Rachel Berg's supervisor, and to take at
least one Rule 30(b)(6) deposition. (Doc. 78 at 1.) The
scheduling order does not discuss the identity of a
litigation adjuster, much less provide for that individual to
be deposed. Rule 11(b)(3) requires that factual contentions
have evidentiary support, and there is no support for
Plaintiffs' counsel's claim that Liberty Mutual's
decision not to identify the litigation adjuster is contrary
to my scheduling order. Further, I have previously granted
Liberty Mutual's motion for protective order as to the
identity of the litigation adjuster. (Doc. 220.)
this type of mis-statement of facts by Plaintiffs'
counsel is not a singular occurrence. Plaintiffs' counsel
also asserts that the deadline should be extended because
“[o]n January 3, 2017, Liberty raised an entirely new
defense of ‘wear and tear' that cannot be found in
its policy.” (Doc. 168 at 4.) As Liberty Mutual points
out in its Response, Liberty Mutual's expert David Disko
discussed “wear and tear” in his first inspection
report, which was provided to Plaintiffs on July 6, 2016.
(Doc. 175 at 2.) So I cannot grant the motion to extend on
discovery has not run particularly smoothly in this case, the
parties have recently agreed that depositions of Mike Westby
and Liberty Mutual's Rule 30(b)(6) representative will be
completed by April 7, 2017. (Doc. 224.) In addition, Judge
Brack has extended until April 21, 2017 Plaintiffs'
deadline to respond to Liberty Mutual's motions for
partial summary judgment and declaratory judgment. (Doc.
246.) Under these circumstances, Mr. Brenkman should have the
opportunity to review these depositions to supplement his
opinions on the bad faith claim. Thus, I will extend until
April 21, 2017 the deadline for Plaintiffs to supplement
their expert witness disclosures related to their bad faith
claims. This ruling also resolves Plaintiffs' motion to
extend discovery deadlines. (Doc. 207.)
Mutual's motion for protective order may be handled more
summarily. I have already ruled that Liberty Mutual had no
continuing obligation to affirmatively investigate the hail
claim after it had been denied and litigation commenced, but
had an obligation to assess any new information provided
about the claim. (Doc. 220 at 8.) I further granted Liberty
Mutual's motion for protective order as to the identity
of the litigation adjuster, and affirmed that Liberty Mutual
may assert attorney-client and work product privileges to
post-litigation conduct. (Id.) Mike Westby's
deposition has been completed, and the Rule 30(b)(6)
deposition is set for April 6, 2017. To the extent there are
continuing issues about the Rule 30(b)(6) deposition notice,
the parties are to advise of those issues promptly.
next motion is titled “Motion to Complete the
Deposition of Julian Leyba.” (Doc. 206.) Mr. Leyba is a
fact witness in this case, and his deposition was taken by
Plaintiffs on January 26, 2017. According to Plaintiffs'
counsel, the deposition “was suspended” by
Plaintiffs when it became obvious that exhibits that
Plaintiffs' counsel brought to the deposition were not
readable and were inaccurate as to two locations.
(Id. at 1-2.) Plaintiffs' counsel reiterates
later in the motion that he “promptly terminated”
Mr. Leyba's deposition when the two mistakes were
recognized and he “insisted upon the most accurate of
testimony.” (Id. at 5.) In its response,
Liberty Mutual contests these assertions, noting that Mr.
Leyba's deposition was not suspended or terminated. (Doc.
219 at 8-9.) In Plaintiffs' reply, counsel claims that
nothing he stated in the motion “was proven false or
inaccurate.” (Doc. 240 at 3.) While counsel spent
several pages of the reply contesting the remainder of the
assertions made by Liberty Mutual, he never addressed Liberty
Mutual's claim that the deposition was never suspended or
terminated. (See Id. at 3-4.)
distressing, and another violation of Rule 11, that
Plaintiffs' counsel has not rendered an accurate
description of how Mr. Leyba's deposition was conducted.
The pertinent parts of Mr. Leyba's deposition are
attached as exhibits to Plaintiffs' motion and Liberty
Mutual's response. (Doc. 206 Ex. 2; Doc. 219 Ex. 1.)
Contrary to counsel's repeated assertions,
Plaintiffs' counsel never suspended or terminated Mr.
Leyba's deposition. Instead, counsel for Plaintiffs and
Liberty Mutual completed two rounds of questioning Mr. Leyba,
and there is no mention in the transcript that the deposition
was being suspended or terminated by Plaintiffs' counsel.
Instead, when Liberty Mutual completed its second set of
question for Mr. Leyba, Plaintiffs' counsel suggested to
Mr. Leyba that he read and sign the deposition so he could
resolve an issue about “a different address.”
(Doc. 206 Ex. 2 at 8 (J. Leyba Dep. 62:5-8); Doc. 219 Ex. 1
at 10 (same).) Plaintiffs' counsel's assertion that
he wants to “complete” the deposition is
inaccurate; he wants to take a second deposition from Mr.
Leyba. Plaintiffs' counsel's mistakes in bringing to
the deposition exhibits that were not readable and which
contained inaccurate information fall far short of
establishing good cause to take a second deposition of Mr.
Leyba. See Roberts v. Oklahoma, 110 F.3d 74, 1997 WL
163524, at *9-10 (10th Cir. 1997) (unpublished table
decision); State Farm Mut. Auto. Ins. Co. v. New
Horizont, Inc., 254 F.R.D. 227, 235 (E.D. Pa. 2008).
Plaintiffs' motion to take a second deposition from Mr.
Leyba is denied.
Plaintiffs' motions to extend deadlines are granted as
set out above and Plaintiffs' motion to take a ...