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Estate of Osborn-Vincent v. Ameriprise Financial Services, Inc.

United States District Court, D. Oregon, Portland Division

September 3, 2019

THE ESTATE OF MARJORY GAIL THOMAS OSBORN-VINCENT, Plaintiff,
v.
AMERIPRISE FINANCIAL SERVICES, INC., a Delaware corporation; and RIVERSOURCE LIFE INSURANCE COMPANY, a Minnesota corporation, Defendants.

          OPINION AND ORDER

          Youlee Yim You United States Magistrate Judge

         Before the court is plaintiff's motion for extension of time to depose Trina Iijima (“Iijima”) and defendants' motion for protective order quashing the Iijima deposition notice under FRCP 26(c)(1) and LR 26-4.[1] ECF ## 178, 179. The court finds these matters suitable for decision without oral argument under LR 7-1(d)(1). For the reasons set forth below, plaintiff's motion for extension of time is denied, and defendants' motion for protective order is granted.

         I. Procedural History

         In their opposition to plaintiff's motion for summary judgment (ECF #159), defendants offered documents that were attached as exhibits to Iijima's declaration. See Defs.' Opp'n Pl.'s Mot. Summ. J., ECF #159; Iijima Decl., Exs. 1-8, ECF #161. Iijima affirms that she is responsible for identifying and collecting corporate documents for litigation held by AFI and its subsidiaries, including Ameriprise Financial Services, Inc. (“AFSI”), and RiverSource Life Insurance Company (“Riversource”), and that the documents attached to her declaration are corporate records kept in the regular course of RiverSource's business. Suppl. Iijima Decl. ¶¶ 2-4, ECF #171. Defendants represent that they produced the documents at issue to plaintiff early during discovery, and plaintiff does not contend otherwise. Defs.' Resp. Mot. Extension 2-3, ECF #184.

         Discovery closed on July 1, 2019. Order 3, ECF #150. About three weeks later, without first asking the court to modify the scheduling order to reopen discovery-or conferring with opposing counsel to find an agreeable time, date, and place for the deposition per LR 30-2- plaintiff noticed the Iijima deposition. Decl. Hans Huggler, Ex. 4, at 2, ECF #180-4. A week later, plaintiff retroactively moved for an extension of time-the same day defendants filed their motion to quash. See Mot. Extension, ECF #178; Mot. Quash, ECF #179.

         When granting plaintiff's prior motion for extension of time last March, this court noted that it was “aware of the age of this action and [would] be hesitant to grant further motions for extension of time, especially as this motion asks for a lengthy four-month extension.” Order 3, ECF #150. Plaintiff's motion for summary judgment is fully briefed, complete with sur- and sur-sur replies. Briefing for defendants' cross-motion for summary judgment is nearly complete. This court vacated the deposition and briefing deadlines pending resolution of the present motions. Order, ECF #183.

         II. Motions for Extension of Time and to Quash

         Federal Rule of Civil Procedure 16 requires the court to enter a scheduling order that includes a discovery deadline. FRCP 16(b)(1), (3). And this District's local rules require that all depositions be taken by the discovery deadline. LR 16-2(e)(2). “The district court is given broad discretion in supervising the pretrial phase of litigation, and its decisions regarding the preclusive effect of a pretrial order . . . will not be disturbed unless they evidence a clear abuse of discretion.” Jorgensen v. Cassiday, 320 F.3d 906, 913 (9th Cir. 2003) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992)).

         “A schedule may be modified only for good cause and with the judge's consent.” FRCP 16(b)(4); LR 16-3(a) (“objections to any court-imposed deadline . . . must (1) show good cause why the deadlines should be modified, (2) show effective prior use of time, (3) recommend a new date for the deadline in question, and (4) show the impact of the proposed extension on other existing deadlines, settings, or schedules”). Moreover, “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . forbidding the disclosure or discovery.” FRCP 26(c)(1)(A); see also LR 26-4.

         Good cause “is an inquiry that focuses on the reasonable diligence of the moving party.” Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir. 2007) (citing Johnson, 975 F.2d at 609). “While a court may take into account any prejudice to the party opposing modification of the scheduling order, ‘the focus of the Rule 16(b) inquiry is upon the moving party's reasons for seeking modification[, ] if that party was not diligent, the inquiry should end.'” In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013), aff'd sub nom. Oneok, Inc. v. Learjet, Inc., 135 S.Ct. 1591 (2015) (quoting Johnson, 975 F.2d at 609) (original alterations omitted). A party demonstrates good cause by establishing, among other things, that its “noncompliance with a Rule 16 deadline occurred, . . . notwithstanding [its] diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference[] and that [it] was diligent in seeking amendment of the Rule 16 order[] once it became apparent that [it] could not comply with the order.” Chao v. Westside Drywall, Inc., 709 F.Supp.2d 1037, 1072-73 (D. Or. 2010).

         Here, plaintiff argues its noncompliance with the scheduling order was not caused by its lack of diligence but by defendants' surreptitious attempt to hide a critical witness. Pl.'s Resp. Opp'n Defs.' Mot. Quash. 5-6, ECF #182. Plaintiff contends Iijima has personal knowledge of “important and vital factors in this matter, ” yet defendants only revealed her existence by relying on exhibits attached to her declaration in their opposition to plaintiff's motion for summary judgment. Id. at 3. If true, it follows that plaintiff could not have sought to depose Iijima any sooner.

         However, even assuming plaintiff was diligent, none of its reasons for deposing Iijima support a finding of good cause to modify the scheduling order. Iijima is a qualified witness under FRE 803(d) and FRE 902(11). It does not matter that she works for defendants' parent company or has changed roles or job titles. It does not matter that defendants did not produce her as their Rule 30(b)(6) corporate designee because that rule only requires that an organization produce a person who can testify about “information known or reasonably available to the organization.” FRCP 30(b)(6). Even if Iijima had personal knowledge of the substance of the case, defendants were not obligated to produce her as their corporate designee. Moreover, as clarified by her supplemental declaration, Iijima is clearly attesting to her knowledge that the documents attached to her declaration are authentic and not to substantive matters in this case. Again, plaintiff does not call into question the authenticity of any of the documents at issue, defendants' methods of maintaining these records, or Iijima's means of collecting and identifying them for this litigation. For all these reasons, plaintiff lacks good cause to amend the scheduling order.

         Conversely, defendants have established good cause to quash the Iijima deposition. Discovery has closed. Briefing on pending dispositive motions is nearly complete. Defendants relied on records they produced to plaintiff during discovery (by June 2018 at the latest) in their response to plaintiff's motion for summary judgment. They attached those documents to the declaration of someone who could verify their authenticity. This is a routine exercise.

         Defendants also move for reasonable expenses incurred in bringing their motion. Rule 37(a)(5)(A) provides that, when a motion ...


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