United States District Court, W.D. Kentucky, Louisville Division
OPINION AND ORDER
King, Magistrate Judge.
Judge Thomas B. Russell referred this matter to Magistrate
Judge Lanny King for ruling on all discovery issues. (Docket
# 13). This matter is before the Court on Plaintiff's
Motion to Set Definitive Deadlines for Discovery and Expert
Disclosures. (Docket # 48). Defendants have responded in
opposition and Plaintiff has replied. (Dockets # 50, 52).
This Motion is now ripe for adjudication.
original Motion (Docket # 48) requested an additional thirty
days to conduct the following three categories of discovery:
(1) to issue subpoenas to various organizations and agencies
through which Defendants received training; (2) to depose
Sheriff John Aubrey or a corporate representative regarding
training relevant to Plaintiff's claims; and (3) to
conduct a second deposition of Defendant Deputy Shipp
regarding the “cabinet full of documents” which
Deputy Shipp cannot locate. (Docket # 48). Additionally,
Plaintiff requested sixty days to identify and disclose
experts. (Id.). Defendants' Response argued that
Plaintiff's requests were untimely; however, they did not
object to Plaintiff's request for additional time to
disclose experts. (Docket # 50). In an effort to cooperate,
Plaintiff's Reply only requests an extension of time to
conduct the first two categories of discovery and the
extension of time for expert disclosures. (Docket # 52).
reasons detailed below, the Court shall GRANT in part and
DENY in part Plaintiff's Motion. (Docket # 48).
Plaintiff's request to extend the discovery deadline to
allow time to issue subpoenas to third parties regarding
Defendants' training and to depose a corporate
representative or Sheriff John Aubrey is denied.
Plaintiff's request to extend the expert disclosure
period is granted. Plaintiff shall have sixty days from the
entry of this Order to identify and disclose experts.
21, 2016, the Court entered the initial scheduling order.
(Order; Docket # 13). On April 25, 2017, the parties
submitted an Agreed Motion For an Extension of Time to File
Pretrial Documents and Remand Trial Date. (Docket # 28). On
October 5, 2017, the Court entered a second scheduling order,
which included the following deadlines: Plaintiff's
expert disclosures are due by March 1, 2018; Defendants'
expert disclosures are due by April 1, 2018; dispositive
motions due by June 8, 2018; discovery closes February 1,
2018; expert discovery closes May 15, 2018; and a final
pretrial conference is scheduled with Judge Russell on
September 7, 2018. (Order; Docket # 34).
Deputy Shipp was deposed in August 2017. It is undisputed
that Defendant Shipp testified to keeping numerous training
documents from over the years at his house.
December 8, 2017, the Court held a telephonic status
conference to address Plaintiff's Motion to Compel, which
had been filed on October 20, 2017, without leave of Court.
(Order; Docket # 38). During the status conference, Plaintiff
raised no issue involving the unanswered discovery. The Court
granted Plaintiff retroactive leave to file her Motion to
Compel. (Order; Docket # 38). In its Order, the Court
specifically provided that, “[i]f the Motion to Compel
is granted, the parties are instructed to meet and confer,
and then contact the Court, to set a call to review the
scheduling order.” (Order; Docket # 38). On February
20, 2018, the Court denied Plaintiff's Motion to Compel.
(Order; Docket # 41).
February 1, 2018, Judge Russell referred this case to Judge
King for settlement. (Order; Docket # 40).
March 1, 2018, the Court held a second telephonic status
conference. (Order; Docket # 43). During the status
conference, Plaintiff advised the Court that he had
previously requested all of the training documents that
Defendant Deputy Shipp testified to acquiring over the years
and keeping in his house. Defendants agreed to produce the
requested materials and the Court ordered Plaintiff to review
the materials prior to the next scheduled status conference
on March 16, 2018. (Order; Docket # 43). Prior to March 16,
2018, Defendants informed Plaintiff that Deputy Shipp could
not locate any of the training materials.
March 16, 2018, Plaintiff filed this Motion, effectively
amending his initial motion to set new, definitive deadlines
for discovery and expert disclosures that was filed on March
12, 2018. (Docket # 48). Plaintiff requests this Court to
extend the fact discovery deadline and Plaintiff's expert
disclosures deadline. Plaintiff requests thirty days to (1)
issue subpoenas to various organizations that provided
Defendants with training materials regarding traffic stops,
use of force, and arrests, and (2) depose Sheriff Aubrey or a
corporate representative regarding training relevant to
Plaintiff's claims. Plaintiff requests sixty days for
Rules of Civil Procedure 16(b)(4) provides that a scheduling
order “may be modified only for good cause and with the
judge's consent.” Fed.R.Civ.P. 16(b)(4). District
courts have broad discretion in managing the discovery
process and controlling their dockets. Marie v. Am. Red.
Cross, 771 F.3d 344, 366 (6th Cir. 2014). The Sixth
Circuit has established a number of factors for district
courts to consider when determining whether good cause exists
to modify a discovery schedule, including: “(1) when
the moving party learned of the issue that is the subject of
discovery; (2) how the discovery would affect the ruling
below; (3) the length of the discovery period; (4) whether
the moving party was dilatory; and (5) whether the adverse
party was responsive to . . . prior discovery
requests.” Bentkowski v. Scene Magazine, 637
F.3d 689, 696 (6th Cir. 2011) (quoting Dowling v.
Cleveland Clinic Found., 593 F.3d 472, 478 (6th Cir.
2010)). The primary measure of these factors and the
good cause standard, however, is “whether the moving
party was diligent in pursuing discovery.” Bradford
v. Shrock, No. 3:11CV-00488-DJH, 2017 WL 3444801, at *2
(W.D. Ky. Aug. 10, 2017) (citing Marie, 771 F.3d at
366) (additional citation omitted)).
court should also consider whether there would be any
prejudice to the party opposing the modification of the
discovery schedule. Id. (citing Inge v. Rock
Financial Corp., 281 F.3d 613, 625 (6th Cir. 2002)
(additional citation omitted)). However, while prejudice is a
factor to be considered, it is not a controlling one.
Needler v. Coca-Cola Refreshments USA, Inc.,
3:13-CV-781-CRS, 2014 WL 8275991, at *3 (W.D. Ky. Nov. 19,
2014), modified, 3:13-CV-781-CRS, 2015 WL 1346783 (W.D. Ky.
Mar. 24, 2015). Moreover, the party that fails to show good
cause will not be accorded relief under Rule 16(b)(4) merely
because the opposing party will not suffer substantial
prejudice as a ...