United States District Court, D. Colorado
KATHLEEN M. TAFOYA, Magistrate Judge.
This matter is before the court on "Plaintiff's Motion to Reopen Discovery to Take Additional Depositions" filed July 23, 2014 [Doc. No. 29]. "Defendants' Opposition to Plaintiff's Motion to Take Additional Depositions" ("Resp.") [Doc. No. 52] was filed on August 13, 2014 and Plaintiff replied on August 25, 2014 ("Reply") [Doc. No. 62]. The matter is ripe for review and ruling.
Plaintiff seeks to reopen discovery for the purpose of taking the depositions of non-parties Trace Skeen and corporate designees of Marsh USA. Plaintiff asserts that it has good cause to take these depositions outside the previously designated discovery period as a result of late disclosures and because certain critical documents were not produced by Defendants until after the February 4, 2014 close of discovery.
Plaintiff asserts that in December 2013, Defendants first alerted the plaintiff to the existence of GMR former employee, Trace Skeen, a witness who had not been disclosed up to that point. Plaintiff alleges that Mr. Skeen had significant involvement in the formation of GMRTT and the day-to-day control Defendants exerted over GMRTT, however Defendant GMR allegedly did not timely produce documents while the case was pending in the Eastern District of New York concerning Mr. Skeen so that a deposition could be scheduled.
Marsh USA was the insurance brokerage firm to whom Ron Thackery, the Safety and Risk Manager of EMSC/AMR, allegedly made representations about AMR's control over GMRTT to enable AMR to obtain insurance coverage for the 2008 ambulance explosion in Trinidad. Plaintiff asserts that although some of the email correspondence between Marsh USA and Thackery has been produced by Defendants, some was withheld, preventing the Plaintiff from being able to adequately examine a Marsh USA representative prior to the expiration of the discovery period.
Defendants' objection to Plaintiff's request to take these two depositions is primarily based on timeliness. Additionally, as to Marsh USA, Defendants argue that one or more documents about which Plaintiff seek to inquire do not exist and, therefore, reopening discovery would be a waste of time. Further, Defendants argue that Mr. Thackery's comments to Marsh USA occurred in 2010, two years after the 2008 accident, for the purposes of obtaining insurance going forward, not with respect to coverage for the 2008 incident. Defendants assert that these comments are therefore irrelevant.
A. Legal Standard for Reopening Discovery
The Court may modify scheduling orders upon a showing of good cause. See Fed.R.Civ.P. 16(b)(4); D.C.COLO.LCivR 16.1. Whether to modify a scheduling order "to extend or reopen discovery is committed to the sound discretion" of the Court. Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987). When exercising its discretion, the Court considers the following factors: (1) whether trial is imminent; (2) whether the request to reopen or extend discovery is opposed; (3) whether the nonmoving party would be prejudiced; (4) whether the moving party was diligent in obtaining discovery within the guidelines established by the Court; (5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the Court; and (6) the likelihood that discovery will lead to relevant evidence. Id .; see also Celani v. Neumeyer, No. 09-cv-01501-PAB-KLM, 2011 WL 4972058, at *2-4 (D. Colo. Oct. 19, 2011).
B. The Smith Factors
1. Imminence of Trial
When this motion was originally filed in Case No. 09-cv-05143-FB-RER in the Eastern District of New York, the parties were subject to District Judge Block's accelerated trial schedule. In this District, however, no trial has yet been set nor will one be set until a Final Pretrial Conference is held and a Final Pretrial Order entered. The Court finds that depositions of Trace Skeen and of Marsh USA may be reasonably accomplished in a short amount of time. The first Smith factor, therefore, weighs in favor of granting Plaintiff's motion.
2. Whether the Request is Opposed
Defendants oppose the reopening of discovery to allow Plaintiff to take these two depositions. However, the only argument advanced is that Plaintiff somehow should have known how important Trace Skeen might be to the litigation in spite of Defendants' late production of documents and failure to disclose pursuant to Fed.R.Civ.P. 26(a)(1). This court disagrees. Although Plaintiff acknowledges she first learned about Trace Skeen's existence in December 2013, it was only after the February 21, 2014 document production - several weeks after the close of discovery - that she learned Trace Skeen (1) was invited to attend all GMRTT board meetings; (2) supervised and instructed Paul Anderson, the CEO of GMRTT, in carrying out the daily operation of GMRTT; and (3) negotiated with the Ministry of Health of Trinidad and Tobago on GMRTT's behalf. ( See Plaintiff's Motion for Sanctions and Adverse Inferences for ...