The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
This case was referred to the undersigned by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b)(1)(A), for all pretrial matters, and for hearing and disposition of all non-dispositive motions or applications. Dkt. #34.
Currently before the Court are cross-motions to compel discovery. Dkt. ##37 and 39. At the conclusion of a March 23, 2010 discovery status conference, the Court instructed counsel for the parties to work to resolve the pending cross-motions to compel informally and without further Court intervention. By letter dated June 21, 2010, counsel for the parties jointly advised the Court that "the parties conferred and were unable to reach agreement and will require a determination from this Court on the following matters:
! Whether Defendant Jarrett should be deposed for an additional three (3) hours, and Defendant Kurtz deposed for an additional ninety (90) minutes.
! Whether the parties [sic] designations of documents produced by third parties as "Attorneys Eyes Only" should be overruled and the documents marked as "Confidential".
! Whether either party should be compelled to produce additional documents."
In its Amended Complaint, plaintiff alleges, inter alia, that it is a "full-service vitamin and mineral premix company that in addition to its nutritional products for cows, provides professional nutritional and farm management consulting services to dairy farmers in a number of eastern, southern and mid-western states." Dkt. #28, ¶ 10. Plaintiff further alleges that it develops and provides trace minerals and vitamins which are then inserted into the feed supply of its customer's cows to support and maximize milk supply. Id. at ¶ 11.After nearly twenty years of employment with plaintiff, plaintiff alleges defendants Jarrett and Kurtz left their employment with plaintiff and are engaged in a competing business called "Cows Come First" and plaintiff contends defendants, "worked in concert with third parties to solicit and divert Plaintiff's salesmen and distributors either to CCF or away from Plaintiff, and to sell Plaintiff's distributors competitive products . . . " Id. at ¶ 25.
In its Answer to the Amended Complaint, defendants asserted three counterclaims against plaintiff, illegal restraint of trade, interference with prospective advantage and prima facie tort. Dkt. #31. Defendants allege that plaintiff, by itself and through its agents, "conspired with others to prevent lawful competition and the free exercise of business, trade, and commerce with respect to the marketing and sale of vitamin and mineral pre-mix and other nutritional products [ ] for use by dairy farmers . . . " Id. at ¶ 104. More specifically, defendants allege that plaintiff prevented businesses, such as Lallemand Animal Nutrition, from selling or marketing nutritional products and/or consulting services to or with defendants. Id. at ¶ 105. In fact, defendants claim that plaintiff threatened that it would discontinue conducting business with or would otherwise harm Lallemand if it conducted business with defendants. Id. at ¶ 106. As a result, Lallemand refrained from conducting business with defendants so that it could continue to conduct business with plaintiff. Id. at ¶ 107.
Plaintiff's Request for Additional Time to Depose Defendants Jarrett and Kurtz
In its cross-motion to compel discovery, plaintiff sought permission from this Court to continue the deposition of defendant Jarrett for an additional 41/2 hours and defendant Kurtz for an additional 3 hours. Dkt. #39-2, ¶ 2. Since the filing of its cross-motion, plaintiff has modified that request and now seeks an additional 3 hours to complete defendant Jarrett's deposition and an additional 90 minutes to complete defendant Kurtz's deposition. For the following reasons, plaintiff's request is granted.
Rule 30 of the Federal Rules of Civil Procedure provides in pertinent part,
(d) Duration; Sanction; Motion to Terminate or Limit.
(1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.
In support of its motion for additional time, plaintiff argues that notwithstanding its requests to defendants to produce documents in advance of the anticipated depositions to save time, defendants made their partial Rule 26 disclosure of documents and produced documents pursuant to the deposition notices the morning of the depositions. Dkt. #39-2, ¶ 26. In addition, plaintiff asserted that defendant Jarrett's deposition was not concluded and was expected to resume on March 9, 2010. Id. at ¶ 27. More specifically, defendant Jarrett's prior testimony lasted 6 hours and 15 minutes, therefore, plaintiff concluded, "in addition to the normal 71/2 hours, or 1 hour and 15 minutes remaining, Plaintiff requests an additional 3 hours to complete his deposition, assuming documents are produced pursuant to Plaintiff's First Demand." Id. As noted above, plaintiff initially sought an additional 3 hours to complete defendant Kurtz's deposition, however, that request was later modified to 90 minutes.
In opposition to plaintiff's request for additional time to complete the depositions of the defendants, defendants argue that plaintiff has "provided absolutely no legitimate basis for subjecting the Defendants to the additional inconvenience and annoyance of an extended deposition." Dkt. #43, ¶ 22. Moreover, defendants claim that plaintiff's argument in favor of the additional deposition time, the fact that defendants had not responded to plaintiff's first demand for documents, "is a complete red herring." Id. at ¶ 24. Indeed, defendants assert,
Plaintiff did not serve its Notice to Produce until December 21, 2009, after Mr. Kurtz had been fully deposed and his deposition completed on November 30, 2009 and after Mr. Jarrett had been deposed for 6 hours and 15 minutes on December 1, 2009. [footnote: Defendants have stipulated to waiving the "1 day" requirement set forth in FRCP 30 to permit Plaintiff to depose Mr. Jarrett for the time remaining of the 7 hours for examination permitted under the rule. However, with respect to Mr. Kurtz, the Plaintiff completed his questions and ...