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Johnson v. Bon-Ton Dep't Stores

March 28, 2006


The opinion of the court was delivered by: Hon. Hugh B. Scott


Before the Court is plaintiff's motion to compel (as well as for discovery sanctions) and for extension of time to complete discovery and to commence alternative dispute resolution mediation (Docket No. 25). This Court scheduled (and later amended at each party's request) the briefing schedule and argument of this motion, with responses due by March 14, 2006, any reply by March 20, 2006, and argument before the undersigned on March 21, 2006 (Docket Nos. 26, 29, 30).

The initial briefing schedule Order had stayed the discovery deadline (of January 31, 2006) and stayed the conference to select a mediator and commencing mediation until this motion has been resolved (Docket No. 26). But after the parties indicated a selection of a mediator (see Docket No. 28), the Court vacated the stay of the alternative dispute resolution ("ADR") mediation process and reinstated the remaining deadlines set forth in the ADR Referral Order, that is, the initial mediation session was to be held no later than March 13, 2006, and the mediation referral terminates on July 31, 2006 (Docket Nos. 24, 27).


This is a removed diversity personal injury action (plaintiff a New York resident, defendant a Pennsylvania retailer) arising from plaintiff's fall in defendant's Eastern Hills Mall store on April 24, 2003 (see Docket No. 1, Notice of Removal, Ex., state court complaint; Docket No. 18, Pl. Atty. Aff. ¶ 3). Following entry of Consent to Jurisdiction before the undersigned, this Court issued a Scheduling Order (Docket No. 8; see Docket No. 18, Pl. Atty. Aff. ¶¶ 6, 7), which had discovery conclude on December 16, 2005, and dispositive motions due by March 30, 2006. Upon an earlier motion by plaintiff for extension of time to complete discovery (Docket No. 18), the discovery deadline was reset to January 30, 2006, with dispositive motions now due by May 16, 2006 (Docket No. 23). That Order also denied without prejudice as premature plaintiff's motion to compel (id.). Responding to that earlier motion, defendant indicated that it intended to produce documents and witnesses prior to the then initial discovery date. On defendant's representation that it would produce, the Court granted plaintiff leave to renew her motion to compel if defendant failed to produce within the time allotted, or if plaintiff believed that defendant's production was incomplete. (Id. at 4.)

On January 24, 2006, plaintiff served and filed her present motion to compel (Docket No. 25). Plaintiff seeks an Order compelling defendant to respond to plaintiff's demands, to produce the discovery within a week, or strike the Answer as a sanction (Docket No. 25, Pl. Atty. Aff. WHEREFORE clause at fifth unnumbered page).

Defendant contends that it fully complied with plaintiff's discovery and that its response to plaintiff's request for admissions was based upon reasonable inquiry by defendant's staff (Docket No. 31, Def. Atty. Aff. ¶¶ 4, 6-9). Defendant argues that plaintiff had sixteen months to complete discovery and should not get additional time (id. ¶ 5). Defendant believed that the Order briefing this motion stayed discovery (see id. ¶ 10), hence delaying production of answers to certain interrogatories (id.), but that Order (Docket No. 26, Order of Jan. 30, 2006) clearly stayed the running of the discovery deadline (of January 30, 2006, Docket No. 23; see Docket No. 32, Pl. Atty. Reply Aff. ¶ 9) pending resolution of this motion and not discovery. Defendant concludes that plaintiff is time barred from identifying an expert, since her time to do so was by October 15, 2005 (Docket No. 31, Def. Atty. Aff. ¶ 12).

In reply, plaintiff vehemently denies receiving the discovery sought (Docket No. 32, Pl. Atty. Reply Aff. ¶¶ 2-5), believing that defendant made no reasonable inquiry in response to her Request for Admissions (id. ¶ 6). She contends that defendant delayed its representative's deposition past the October 15, 2005, deadline for expert disclosure. Expert review requires complete production from defendant, which has yet to occur. (Id. ¶ 7.)

Meanwhile, on January 1, 2006, the Court adopted a pilot ADR program where currently pending cases could be referred by the assigned judge, W.D.N.Y. Alternative Dispute Resolution Plan ("ADR Plan"), Sec. 2.1(B) (Jan. 2006), see also id. Sec. 1.2(C) (Magistrate Judge consent cases). On January 12, 2006, the Court ordered the parties to confer and select a mediator under this ADR program within fifteen days of entry of the Order, to begin a mediation session by March 13, 2006, and to complete mediation by July 31, 2006 (Docket No. 24).


I. Motion to Compel

Discovery under the Federal Rules is intended to reveal relevant documents and testimony, but this process is supposed to occur with a minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 655-65 (Civil 2d 1994). "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter." Fed. R. Civ. P. 26(b)(1).

A. Discovery Sought

Plaintiff seeks production of documents, defendant's computerized human resources data, admissions to certain requests posed by plaintiff, and answers to interrogatories. When plaintiff moved to compel, the deadlines under the Federal Rules to respond to her requests had not yet run, but the present discovery deadline of January 30, 2006, was approaching. Rule 34(b) gives a party 30 days to respond or object to a document production demand. "A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties, subject to Rule 29." Fed. R. ...

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