In LM Ins. Corp. v. Safety Nat’l Cas. Corp, No. 21-CV-1802 (KAM) (RLM) (E.D.N.Y. Feb. 17, 2022), New York Magistrate Judge Roanne L. Mann denied defendant Safety National’s request to extend discovery, declining reconsideration of a court order that reinstated a fact discovery deadline of February 4, 2022 to enable the defendant to serve a subpoena on a third party for a contract not previously requested through discovery.

Case Background

In this insurance coverage litigation, the Court conducted an emergency telephonic hearing on the even of the closing of fact discovery regarding a dispute that arose during the deposition of non-party witness Einstein Construction Group, the insured of defendant Cincinnati Insurance Co. The dispute concerned the request of counsel for the plaintiff, the party that had subpoenaed Einstein, to produce a 2016 Contract between Einstein and another non-party. Counsel for Einstein, who had not had an opportunity to review the 2016 Contract with her client, refused to produce it during the deposition, as the document fell outside the scope of plaintiff’s subpoena, which called for information and testimony concerning a a lter contract between those two non-parties. Citing the unfairness of the demand for immediate production as well as the lateness of the hour, the Court declined to order Einstein to produce the 2016 Contract at that time, or to entertain an oral application for yet another extension of discovery.

Later that evening, defendant Safety National, which had not even served a subpoena on Einstein, submitted a request to extend discovery deadline by four weeks to serve another subpoena on Einstein for the 2016 contract. Mistakenly assuming that no party objected, the Court granted an extension, but only until February 22, 2022, for the limited purpose of subpoenaing the 2016 Contract and reopening the deposition of Einstein for questioning about that document. The Court noted, however, that it “remains unconvinced that, with due diligence, the parties could not have completed fact discovery by” the February 4th deadline.

Several hours later, defendant Cincinnati filed an objection to Safety National’s extension request arguing it wasn’t referenced in the pleadings, and that Cincinnati would be prejudiced if the deadline was extended solely to require production of the 2016 Contract while depriving Cincinnati of the opportunity to conduct discovery on it. As a result, the Court vacated its order, which led to defendant Safety National’s motion for reconsideration.

Judge’s Ruling

Judge Mann stated: “Where, as here, a court has issued a scheduling order pursuant to Rule 16 of the Federal Rules of Civil Procedure …, the Court must first address whether the party seeking leave has shown ‘good cause” for modifying that scheduling order…It is the movant’s burden to establish good cause for failing to comply with a court deadline…‘Good cause’ depends on the diligence of the moving party.”…Consequently, absent a sufficient justification for the movant’s delay, the Court should decline to grant an application to reopen discovery.”

As a result, Judge Mann stated in denying defendant Safety National’s request to extend discovery: “Safety National has not proffered a sufficient justification for having failed to seek and complete discovery concerning the 2016 Contract within the time allotted. To allow plaintiff and/or Safety National to belatedly subpoena and rely upon the 2016 Contract would unfairly prejudice Cincinnati, which understandably has taken no discovery on an instrument that falls outside the scope of the pleadings in this case. Nor is the Court prepared to restart the discovery clock in order to offset the prejudice that would otherwise ensue to Cincinnati. The parties have had ample time to complete discovery, which has now closed.”

So, what do you think? Do you think the request to extend discovery should have been granted or did the Court make the correct call in denying it?  Please share any comments you might have or if you’d like to know more about a particular topic.

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