Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

Case 1:03-cv-02311-EWN-CBS

Document 104

Filed 10/04/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:03cv2311-EWN-CBS LINDA M. PIERCY Plaintiff, v. TERRY MAKETA, as Sheriff of El Paso County Sheriff's Office, EL PASO COUNTY SHERIFF'S OFFICE, and THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO, Defendants.

MOTION TO REQUIRE AND EXPEDITE RESPONSES TO DISCOVERY

COMES NOW the plaintiff, Linda M. Piercy, by and through her attorney, Stefan Kazmierski, of McNamara, Roseman, Martínez & Kazmierski, LLP, and requests an order requiring defendansts to respond to discovery and to expedite those responses. As grounds, plaintiff states: CONFERENCE AS REQUIRED BY D.C.COLO.LCivR 7.1(A) Counsel for the parties have communicated regarding this motion and defendants oppose this motion. 1. A General Case Management Order and Order of Reference issued on August 8, 2007, setting a deadline for all dispositive motions for October 22, 2007. The Order also provides that, "The discovery cut-off is October 3, 2007. The magistrate may modify this at will." 2. Plaintiff's Second Set Of Interrogatories, Request For Production Of Documents And Request For Admissions To Defendants issued on October 3, 2007, attached. Defendants objected to the discovery on the basis that "the deadline to serve discovery requests was 33 days

Case 1:03-cv-02311-EWN-CBS

Document 104

Filed 10/04/2007

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prior to [the dispositive motion deadline], or August 31, 2007." Defendants have refused to respond to the discovery at issue. 3. An unsuccessful settlement conference was conducted in this case on August 13, 2007. Discussions to set a Rule 30(b)(6) deposition began August 20, 2007. After several days of dealing with scheduling issues, a Rule 30(b)(6) deposition was scheduled for the first available date in September 2007. 4. Undersigned counsel took the deposition of Commander Presley, the person designated by the defendants as their Rule 30(b)(6) witness, on September 21, 2007. The transcript of Commander Presley's deposition was not received until September 26, 2007. Upon review of the transcript it became apparent that limited written discovery was required. A review of the attached discovery reveals that the questions are quite limited in scope and tailored to issues arising from that deposition. 5. The district court has wide discretion in its regulation of pretrial matters and to limit the scope of discovery based on the rights and needs of the parties. See, SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir. 1990); Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995). 6. Here, plaintiff was not dilatory in conducting discovery, and the deposition of defendants' Rule 30(b)(6) witness was scheduled within days of the failed settlement conference. The discovery requests at issue are clearly reasonable and relevant and limited in scope and will not pose a burden to the defendants. Trial has not been set. Defendants will not be prejudiced by having to respond to this discovery.

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Case 1:03-cv-02311-EWN-CBS

Document 104

Filed 10/04/2007

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7. On the other hand, the discovery is necessary to responding to dispositive motions, expected to be filed on October 22, 2007. Plaintiff may be prejudiced if she is unable to obtain the discovery requested. 8. Candidly, undersigned counsel failed to calendar the discovery cut-off date set out in the Case Management Order. However, there is no explicit connection in the Case Management Order between the date for filing dispositive motions and the "discovery cut-off date." Indeed, a response to a dispositive motion would not be due before responses to the written discovery are required under the Rules. More importantly, justice would not be served by allowing artificial cut-offs to prejudice a party's case, especially when the time at issue is a matter of days or weeks. Further, the Case Management Order specifically states that, "[t]he magistrate may modify this at will." 9. Although not anticipated, in the event that the responses are relevant to plaintiff's dispositive motion (as opposed to relevancy to her response), plaintiff requests that this Court order the defendants to respond to the discovery no later than October 18, so as to allow plaintiff an opportunity to consider the responses for purposes of her dispositive motion. It is not expected that responses will require more than a few hours of work by the defendants. WHEREFORE, plaintiff requests that this Court order defendants to respond to the attached discovery no later than October 18, 2007. Respectfully submitted this 4th day of October 2007. McNamara, Roseman, Martinez & Kazmierski, L.L.P. s/Stefan Kazmierski

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Case 1:03-cv-02311-EWN-CBS

Document 104

Filed 10/04/2007

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CERTIFICATE OF SERVICE Counsel hereby certify that a true and correct copy of the foregoing MOTION TO REQUIRE AND EXPEDITE RESPONSES TO DISCOVERY was filed electronically this 4th day of October 2007, and service via email effected on: Jay A. Lauer Office of the County Attorney of El Paso County, Colorado 27 E. Vermijo Ave. Colorado Springs, CO 80903-2208 Gordon L. Vaughan Jessica Kyle Muzzio Vaughan & DeMuro 111 S. Tejon St., Ste. 410 Colorado Springs, CO 80903-5116 s/ Stefan Kazmierski There were no required privacy redactions. This digital submission has been scanned for viruses with the most recent version of McAfee VirusScan Enterprise 8.5.0i, updated daily and, according to the program, is free of viruses.

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