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Whitcher v. Day & Zimmermann NPS, Inc.

United States District Court, E.D. Tennessee, Chattanooga

June 1, 2017

PHILLIP WHITCHER, Plaintiff,
v.
DAY & ZIMMERMANN NPS, INC., and BILL JOHNSON, President and CEO, TENNESSEE VALLEY AUTHORITY, Defendants.

          ORDER

          SUSAN K. LEE UNITED STATES MAGISTRATE JUDGE.

         Before the Court is a motion and supporting memorandum filed by Defendant Day & Zimmermann NPS, Inc. (“DZNPS” or “Defendant DZNPS”), requesting the Court (1) to compel co-Defendant Bill Johnson, President and CEO of Tennessee Valley Authority (“TVA” or “Defendant TVA”) to present one or more corporate representatives for a Federal Rule of Civil Procedure 30(b)(6) deposition; and (2) to extend the dispositive motion deadline for DZNPS [Doc. 61, 62]. The Court ordered an expedited briefing schedule on this motion, in consideration of the upcoming deadlines in this case [Doc. 63]. TVA filed a response [Doc. 64], and DZNPS replied [Doc. 66]. Thereafter, Plaintiff Phillip Whitcher (“Plaintiff”) filed a response that opposed DZNPS' request to extend the dispositive motion deadline [Doc. 67]. The matter is now ripe.

         A second motion is also before the Court. TVA attached to its response brief an email chain [Doc. 64-1] that inadvertently contained information shared between the various parties' counsel that TVA believes to be confidential and immaterial to the issues before the Court. TVA filed a subsequent motion to withdraw the previously filed attachment and substitute a redacted attachment [Doc. 68]. TVA's redacted attachment is identical to the original with one exception - the information at issue has been redacted. TVA's motion to withdraw the previously filed attachment is GRANTED and the Clerk is DIRECTED to disable the unredacted attachment [Doc. 64-1]. In resolving DZNPS' motion, the Court will consider TVA's attachment with redactions [Doc. 68-1] in place of the original [Doc. 64-1].

         After careful consideration, the motion filed by DZNPS is GRANTED IN PART AND DENIED IN PART as set forth herein.

         I. BACKGROUND

         The parties' original scheduling order, entered in May 2016, provided that all dispositive motions must be filed by June 2, 2017 [Doc. 30 at Page ID # 126]. In the same scheduling order, the parties set May 5, 2017 as the deadline for concluding discovery [id. at Page ID # 125].

         DZNPS first served its Notice of 30(b)(6) Deposition on TVA on April 7, 2017, which provided that the deposition had been scheduled for April 25, 2017 [Doc. 62 at Page ID # 285; Doc. 62-1]. According to DZNPS, TVA later asked to reschedule the deposition to May 5, 2017 [Doc. 62 at Page ID # 283]. After the parties agreed to the new date and DZNPS served an amended notice of deposition, TVA asked again if the deposition could be postponed, this time until May 25, 2017 [id. at Page ID # 284]. TVA explains that the deposition date was selected as follows:

On April 10, 2017, Tom Carson [(“Mr. Carson”)] was deposed, and DZNPS attended his deposition. Mr. Carson was the TVA start up manager at WBN 2 during the period relevant to Plaintiff's claims, and TVA agreed to a continuation of the deposition to allow Plaintiff to examine Mr. Carson regarding a declaration produced by TVA after April 10. The continuation of Mr. Carson's personal deposition was scheduled for May 25.

         [Doc. 64 at Page ID # 317, ¶ 1] (footnote in original omitted). According to DZNPS, in April “TVA counsel Tricia Roelofs . . . proposed May 25, 2017 as the date for this 30(b)(6) deposition” because “TVA, by its own admission, including in open court on April 11, 2017, was struggling to produce documents and information that had been identified in the parties' initial disclosures and requested and promised in discovery for many months.” [Doc. 66 at Page ID # 330]. The April 11, 2017 hearing was on TVA's motion to extend certain scheduling order deadlines. Following that hearing, the Court entered an Agreed Order [Doc. 57] that extended certain deadlines. TVA now points out that, “With the exception of an extension until May 12, for the taking of Plaintiff's deposition, the Agreed Order contains no extension for the taking of any party depositions.” [Doc. 64 at Page ID # 317, ¶ 2] (emphasis in original).

         Still, an agreement appears to have existed between counsel for co-Defendants that the Rule 30(b)(6) deposition of a TVA representative would take place. DZNPS and TVA discussed matters concerning the deposition in the days leading up to May 25, 2017. TVA states that on May 15, 2017, its counsel “participated in an approximately one hour teleconference with counsel for DZNPS to confer regarding the scope of matters listed in its deposition notice, and the parties agreed to continue the discussion until May 22, to allow time for the undersigned counsel and Mr. Carson to meet on May 21.” [Doc. 64 at Page ID # 318, ¶ 5] (footnote omitted). Sometime before the May 21 meeting, Mr. Carson learned of a family emergency that caused him to be unavailable for several days. On May 23, 2017, James Chase (“Mr. Chase”), counsel for TVA, informed Lawrence Eastwood (“Mr. Eastwood”), counsel for DZNPS, that Mr. Carson would be unavailable for the deposition [Doc. 62-5 at Page ID # 307]. Mr. Eastwood inquired as to when the deposition would occur [id.]. Chase responded by email on May 24, 2017, stating in part:

Mr. Carson . . . will not be available tomorrow to appear for the continuation of his personal deposition or as TVA's designated agency representative for matters listed in DZNPS' amended notice of party deposition pursuant to Fed.R.Civ.P. 30(b)(6). This email further confirms that TVA previously informed DZNPS of its objections to matters listed in the notice and amended notice; that TVA and DZNPS were negotiating to resolve TVA's objections; and that an agreed disposition of TVA's objections is dependent TVA's discussion of those matters with Mr. Carson. Finally, this confirms that TVA will not designate an alternate agency representative to appear for deposition on May 25, 2017.

         [Doc. 62-7 at Page ID # 312-13]. Mr. Eastwood replied that TVA had not “formally or informally ‘objected' to any of DZNPS's three Rule 30(b)(6) notices that date back to April 7.” [Id. at Page ID # 312]. The same day, DZNPS filed the instant motion to compel or for an extension of its dispositive motion deadline. TVA's counsel later provided that Mr. Carson could be available for the 30(b)(6) deposition on June 6 or 7, 2017 [Doc. 68-1 at Page ID # 340], after the dispositive motion deadline.

         II. ANALYSIS

         A. ...


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