United States District Court, E.D. Tennessee, Chattanooga
K. LEE UNITED STATES MAGISTRATE JUDGE.
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
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].
careful consideration, the motion filed by DZNPS is GRANTED
IN PART AND DENIED IN PART as set forth herein.
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].
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.
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).
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.
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.