United States District Court, W.D. New York
JEREMIAH J. McCARTHY UNITED STATES MAGISTRATE JUDGE
January 13, 2020, I held a telephonic conference with counsel
to informally address Steuben's request for additional
discovery [587');">587');">587');">587]. In an e-mail following the conference,
Steuben asked me to “enter an order formalizing [the]
denial of Steuben's requested discovery”, in order
“to seek review of this decision as expeditiously and
efficiently as possible”. GEA responded by e-mail,
stating that although it “would not object to a written
order that incorporates your decision during the
conference”, it “notes that a formal written
order seems unwarranted in view of the informal and
underdeveloped record. For example, Steuben never served a
deposition notice or e-mail discovery requests and did not
even provide Court with a copy of the e-mail discovery
requests it sought to compel.”
surprised that Steuben considers my statements at the January
13 conference to be a formal discovery ruling. As I stated on
January 13, “these conferences are not a decision on a
formal motion”. [587');">587');">587');">587], p. 25. From past practice in
this case, the parties are very familiar with my treatment of
discovery disputes, namely that I first hold an informal
conference which, if unsuccessful in resolving the dispute,
may be followed by a formal motion.
the January 13 conference, counsel for Steuben stated that he
“didn't serve a deposition notice because discovery
is stayed”. [587');">587');">587');">587], p. 20. He is mistaken: although
discovery had earlier been stayed, it was no longer stayed
following Judge Wolford's September 16, 2019 Decision and
Order, in which she stated that “further discovery into
the state of general knowledge regarding oxonia's
suitability as a sterilant at the relevant time is
necessary”. , p. 22. My October 3, 2019 Text Order
 established deadlines “with respect to the issue
of the sufficiency of the written description regarding
oxonia, without prejudice to Steuben's ability to
apply for related fact discovery” (emphasis
added), and Steuben has never sought to extend those
deadlines. See [587');">587');">587');">587], pp. 24-5.
Text Order set a deadline of December 2, 2019 for GEA's
expert disclosure, and January 24, 2020 for Steuben's
responding expert disclosure. Since GEA has elected not to
offer an expert on the written description issue ([587');">587');">587');">587], pp.
12, 23), I take no position at this time on whether Steuben
need do so in this case. However, the same deadlines have
been set in related cases, Nestle has timely served an expert
disclosure in case 13-cv-892. Therefore, Steuben'
responsive expert disclosure in that case is due by January
24, 2020 (13-cv-892 ). As a practical matter, even if I
were to order discovery from GEA at this late date, it could
not be produced in time to make a difference for that
deadline. See Gavenda v. Orleans County, 182 F.R.D.
17, 20 (W.D.N.Y. 1997) (“[d]iscovery requests which are
served too late in the discovery period to allow for a timely
response, have been disallowed”).
summarize, I have not ruled that Steuben is not entitled to
discovery from GEA - I have said only that I will not order
discovery at this time. As GEA suggests, Steuben's
discovery requests should be “at the very least
formalized and turned into a motion practice so that we see
exactly what Steuben is going to request from GEA”.
[587');">587');">587');">587], p. 18. In doing so, Steuben may be guided by my
general comments at the January 13 conference as to the
proper scope of discovery.
 Bracketed references are to the CM/ECF
docket entries, and page references are to numbers reflected
on the documents themselves rather than to CM/ECF
 If Steuben seeks review of the January
13 conference from District Judge Elizabeth Wolford, it
should provide her with these e-mails and the correspondence
which led to that conference.
 In fact, that procedure is posted
under my name in the “Judges' Info” section
of this court's public website: “If discovery
disputes arise, the parties shall initially advise the court
of the dispute via letter (copying opposing counsel). Upon
review of the letter, Judge McCarthy will generally schedule
a conference with the parties to attempt to resolve the issue
informally. If the dispute is not resolved informally, the
parties will be given the opportunity to ...