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Nesselrotte v. Allegheny Energy

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


April 30, 2008

TONI M. NESSELROTTE, PLAINTIFF,
v.
ALLEGHENY ENERGY, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

Judge Nora Barry Fischer

ORDER

This matter is before the Court on Plaintiff's Motion to Compel [107], filed by Toni M. Nesselrotte on February 4, 2008, in which Plaintiff requests the following relief: (1) Defendants be ordered to answer Plaintiff's Third Request for the Production of Documents and Second Set of Interrogatories directed to Defendants; (2) Defendants be required to produce an individual who will testify about the process used by Defendants to analyze and/or discover information from Plaintiff's computer from the time period from October 1, 2004 through May 1, 2007; (3) Defendants be required to produce an individual who will testify about any damages alleged to be suffered by Allegheny Energy as a result of Plaintiff's alleged wrongful removal of documents from Allegheny Energy's premises; and (4) Defendants be ordered to produce any documents that have been withheld on the basis of the attorney-client or work product privileges within 30 days. (Docket No. 107 at 7-8). On February 15, 2008, Defendants filed Defendants' Response to Plaintiff's Motion to Compel Discovery (Docket No. 109), in which they oppose the instant motion on a number of bases; however, they essentially argue that all of Plaintiff's requests are untimely. In response, on February 29, 2008, Plaintiff filed Plaintiff's Memorandum of Law in Support of her Motion to Compel Discovery (Docket No. 118). On March 7, 2008, the Court held a motion hearing, at which it heard initial argument as to the instant motion. Upon leave of Court, on March 11, 2008, Plaintiff filed Plaintiff's Supplement to Motion to Compel (Docket No. 144), in which she asserts that she previously attempted to obtain the information sought in her written discovery and deposition requests but to no avail.*fn1 On March 14, 2008, Defendants filed their Response to Plaintiff's Supplement to Motion to Compel (Docket No. 158). Given these post-hearing submissions, the parties provided further argument on the motion on April 23, 2008.

On the record at the March 7, 2008 motion hearing, counsel for the Plaintiff confirmed the relief sought in the instant motion as the following: full and complete responses to Plaintiff's Third Request for the Production of Documents and Second Set of Interrogatories, and two additional depositions (pursuant to Federal Rule of Civil Procedure 30(b)(6)) related to Defendants' counterclaims. At the April 23, 2008 motion hearing, parallel requests were made. The Court will address each request for relief, in turn.

However, before turning to the instant motion, the Court will first provide background as to the progress of this case and discovery. On February 28, 2007, the Court issued an Initial Scheduling Order, setting the deadline for the completion of all fact discovery by August 27, 2007. After several discovery disputes being raised by way of motion, on August 25, 2007, upon motion by the Plaintiff, the Court extended the deadline for the completion of all fact discovery by sixty days, until October 26, 2007. Said Order further provided: "THERE WILL BE NO FURTHER EXTENSIONS GRANTED." (Docket No. 52) (emphasis in original).*fn2 On October 23, 2007, again upon motion by Plaintiff, the Court extended the deadline for the completion of all fact discovery until February 4, 2008.*fn3 Said Order further provided: "There will be no further extensions of discovery." (Docket No. 70). Subsequently, on February 4, 2008, the last day of the discovery period, Plaintiff filed the instant motion. With this context in mind, the Court now turns to Plaintiff's motion to compel.

As to Plaintiff's written discovery requests, on January 4, 2008, Plaintiff served her Third Request for the Production of Documents and Second Set of Interrogatories upon Defendants.*fn4 In response, Defendants assert that the same are untimely. Based on a plain reading of the Federal Rule of Civil Procedure, specifically Rule 33(b)(2) as to interrogatories and Rule 34(b)(2) as to requests for the production of documents in conjunction with Rule 6(d),*fn5 the Court considers Plaintiff's most recent written discovery requests as untimely. Plaintiff served her written discovery requests upon Defendants on January 4, 2008 at approximately 6:52 p.m. (via email, although the requests were also postmarked the same day), making Defendant's deadline to respond on or about February 7, 2008, after the expiration of the discovery period.*fn6 The Court acknowledges Plaintiffs' argument that her latest written discovery requests relate to Defendants' counterclaims and after-acquired evidence affirmative defense as opposed to her initial claim. However, Plaintiff has been on notice of Defendants' potential counterclaims since October 23, 2007 and Defendant's affirmative defense since December 3, 2007. Thus, Plaintiff has had ample opportunity to obtain the requested information through discovery. See Fed.R.Civ.P. 26(b)(2)(C)(ii). However, Plaintiff has failed to offer good cause for her delay.*fn7

As to Plaintiff's request for additional depositions, Plaintiff requests leave to take two additional depositions related to Defendants' counterclaims, specifically as to damages and Defendant's process to analyze Plaintiff's computer after her employment ended. Once again, since October 23, 2007, Plaintiff has been on notice of Defendants' counterclaims, when the Court granted Defendants' Motion for Leave to File Amended Answer and Counterclaims and Defendants filed the same on October 30, 2007. (Docket Nos. 73 & 74). Furthermore, on the same day, the Court granted Plaintiff's Motion for Leave to Conduct Additional Depositions, in which it allowed Plaintiff to take an additional 13 depositions. (Docket No. 71). The Court also advised the parties "to establish weekly deposition schedules," (Docket No. 71), which apparently fell on deaf ears. On the contrary, Plaintiff waited more than three months until filing the instant motion requesting additional depositions related to the same counterclaims.*fn8 Moreover, the Court notes that Plaintiff has already exceeded the ten deposition limit set by Federal Rule of Civil Procedure 30(a)(2)(A)( i). Once again, Plaintiff has failed to offer good cause for these additional depositions at this late stage and thus, the Court denies said request.

Finally, from a general perspective, while Plaintiff does not explicitly request an extension of the discovery deadline in the instant motion, the granting of Plaintiff's motion would require such an extension. The Local Rules of this Court as well as this Court's own Practices and Procedures provide for a just and expeditious processing of cases. Upon reassignment to the undersigned Judge, this case was designated for placement in the Court's Alternative Dispute Resolution program. While this Court's Practices Procedures generally provide for 150 days of discovery unless additional time is approved by the Court, (see Practices and Procedures of Judge Nora Barry Fischer Effective July 1, 2007 at (III)(B)(1)),*fn9 the parties have benefitted from nearly one full year of discovery, i.e., from the date of the Initial Scheduling Order on February 28, 2007 until February 4, 2008. Nevertheless, Plaintiff has filed the instant motion requesting yet an additional extension of discovery (her third such request) on the very last day of the discovery period, i.e., February 4, 2008.*fn10 On multiple occasions, the Court (as well as the Court's predecessor assigned to the instant matter) has advised the parties that no further extensions of discovery would be granted. (See Docket Nos. 52, 70, 71). Because Plaintiff has failed to demonstrate good cause for yet another enlargement of the discovery period, the Court will adhere to its previous warning.

Accordingly, the Court DENIES Plaintiff's Motion to Compel [107] in all respects.*fn11 The Court considers discovery to be closed.


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