United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Yim You United States Magistrate Judge
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. 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.
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.
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.
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,
Motions for Extension of Time and to Quash
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)).
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.
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).
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.
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
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.
also move for reasonable expenses incurred in bringing their
motion. Rule 37(a)(5)(A) provides that, when a motion ...