The opinion of the court was delivered by: DAVID HOMER, Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Presently pending are (1) the request of plaintiffs for an order
compelling the continuation of the depositions of two witnesses and the
production of certain documents, and for leave to serve an expert witness
report, and (2) the request of defendants for an order compelling
plaintiffs to serve supplemental responses to fifteen contention
interrogatories. These requests were made and opposed in letters with
attachments from plaintiffs' counsel dated April 29, 2004 and from
defendants' counsel dated May 4, 2004. Oral argument was heard on May 6,
2004. For the reasons which follow, the respective requests of the
parties are denied in all respects.
Plaintiffs commenced this action in 1992 alleging that in 1989 and 1990
on the Mohawk Indian reservation known as the Akwesasne or St. Regis
Reservation, defendants, all present or former New York State government
officials, deprived plaintiffs of equal protection of the laws in
violation of 42 U.S.C. § 1983 and various state law provisions.
Specifically, plaintiffs allege that defendants failed to provide police
protection on the reservation because they are Native Americans. More
complete statements of the allegations underlying the complaint are set
forth in various opinions previously rendered in this case and
familiarity with those opinions is assumed. See, e.g., Pyke v. Cuono,
258 F.3d 107 (2d Cir. 2001); Pyke v. Cuomo, 209 F.R.D. 33 (N.D.N.Y. 2002)
Although this case has been pending for over twelve years, the facts
relevant to the pending discovery issues began in June 2001 when the Second Circuit Court
of Appeals vacated the district court's grant of summary judgment to
defendants and remanded for discovery and further proceedings. Pyke,
258 F.3d 107. Following a conference with counsel for all parties, a
Uniform Pretrial Scheduling Order (UPSO) was entered on October 16, 2001
establishing a schedule for progression of the case pursuant to
Fed.R.Civ.P. 16. Docket No. 110. Inter alia, that order established
October 11, 2002 as the deadline for completion of discovery and March
25, 2003 as the deadline for filing dispositive motions. Id
On August 8, 2002, plaintiffs' motion for class certification was
granted with the class certification limited to issues of liability.
Docket No. 123; Pyke, 209 F.R.D. 33. A conference with counsel for all
parties was then held at which the scheduling order was amended to extend
the time for completion of discovery as to liability to August 1, 2003
and dispositive motions as to liability to March 25, 2004. Docket No.
125. In a letter dated June 25, 2003, plaintiffs requested a second
extension of these deadlines by six months. This request was granted,
extending the discovery deadline for liability to January 31, 2004.*fn1
The order granting this extension stated, however, "[n]o further
extensions." Docket No. 131.
No further extensions were sought. However, by mutual agreement, the
depositions of certain witnesses, including that of defendant Thomas A.
Constantine ("Constantine") on February 12, 2004, were held after the
January 31, 2004 deadline. By letter-brief dated April 29, 2004,
plaintiffs requested an order (1) permitting them to continue the
deposition of Constantine and defendant Robert B. Leu ("Leu") for an additional day
each beyond the seven hours allowed by Fed.R.Civ.P. 30(d)(2); (2)
compelling the production of certain documents withheld by defendants
under claims that they were protected from disclosure by the
attorney-client privilege; and (3) granting plaintiffs leave to serve an
expert witness report on the issue of liability. Defendants opposed the
request and, in the alternative, requested that if plaintiffs' requests
were granted, defendants be granted an order compelling plaintiffs to
supplement their responses to defendants' contention interrogatories.
As a threshold matter, defendants contend that plaintiffs' request is
untimely. Plaintiffs contend that if untimely, their request should
nevertheless be granted because they have demonstrated good cause to
extend the applicable deadlines.
A. Depositions and Document Production
The final deadline for completion of discovery was January 31, 2004.
Docket No. 131. Under N.D.N.Y.L.R. 7.1(d)(8), "[a]ny motion to compel
discovery authorized by these Rules shall be filed no later than TEN . .
. DAYS after the discovery cut-off date" (emphasis in original);*fn2 see
also N.D.N.Y.L.R. 16.2 ("Motions to compel discovery shall be filed and
served no later than ten (10) days after the discovery cut-off."). Thus,
excluding Saturdays and Sundays, the time for the parties to move to
compel discovery expired on February 13, 2004. Plaintiffs' request here
was made and received on April 29, 2004. Plaintiffs' request as to the
depositions and document production was thus untimely by seventy-six
Plaintiffs contend that although their request was over two months
late, good cause exists to extend the applicable deadlines and to
consider their requests. The UPSO which plaintiffs seek to modify was
entered pursuant to Rule 16(b). That rule provides that "[a] schedule
shall not be modified except upon a showing of good cause. . . ." See
also N.D.N.Y.L.R. 16.1(f) ("Deadlines. . . shall be strictly enforced and
shall not be modified by the Court, even upon stipulation of the
parties, except upon a showing of good cause."); UPSO at ¶ 1 (same);
Carnrite v. ...