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Blocker v. Conocophillips Co.

United States District Court, W.D. Oklahoma

February 8, 2018

JAMES BLOCKER and JAMI BLOCKER, husband and wife, ., Plaintiffs,



         Before the Court is Plaintiffs' Motion to Preclude Service of Subpoenas to Produce Records on Non-Parties [Doc. No. 39]. Defendant filed an expedited response [Doc. 41] and Plaintiffs filed a reply [Doc. No. 42]. Defendant also filed an opposed motion for extension of the discovery deadline [Doc. No. 44]. The matter is fully briefed and at issue.


         On January 19, 2018, Defendant filed notices with the Court, indicating Defendant's intention to serve subpoenas on eight non-parties [Doc. Nos. 31-38]. The eight subpoenas directed the recipients to produce records by February 7, 2018. However, the Court's July 7, 2017 Scheduling Order [Doc. No. 17] ordered discovery to be completed by February 1, 2018.

         On January 25, 2018, Plaintiffs filed their motion to preclude service of the subpoenas [Doc. No. 39], asserting that the production request was overly broad and required production after the discovery cutoff date. The Court ordered Defendant to file an expedited response [Doc. No. 40]. Defendant filed a response on January 30, 2018 [Doc. No. 41], but did not request an extension of the discovery period.

         On January 31, 2018, Plaintiffs filed a reply [Doc. No. 42]. The Court entered an Order on January 31, 2018 [Doc. No. 43], acknowledging that the requested document production could not occur without an extension of the discovery period. On February 1, 2018, Defendant filed an opposed motion to extend the discovery period until March 1, 2018 [Doc. No. 44].


         Plaintiffs contend that the production request is overly broad and that Defendant has not demonstrated good cause to extend the discovery deadline. Defendant argues the Court should permit service of the subpoenas because: (1) Defendant learned only recently of the information it seeks to obtain through the requested records; and (2) that Plaintiffs will not be prejudiced if Defendant is allowed to obtain discovery past the cutoff.

         Once the Court enters a scheduling order, Fed.R.Civ.P. 16(b)(4) provides that such order “may be modified only for good cause and with the judge's consent.” The good cause standard “requires the moving party to show that it has been diligent in attempting to meet the deadlines, which means it must provide an adequate explanation for any delay.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n. 4 (10th Cir. 2006); see also Strope v. Collins, 315 Fed.Appx. 57, 62 (10th Cir. 2009) (unpublished).[1]

         The fixing of time limits in Rule 16(b) “serves to stimulate litigants to narrow the areas of inquiry and advocacy to those they believe are truly relevant and material.” Fed.R.Civ.P. 16 advisory committee's note to 1983 Amendment. “Litigants are forced to establish discovery priorities and thus to do the most important work first.” Id. Here, Defendant proposed the schedule that the Court ultimately adopted, including a February 1, 2018, discovery cutoff. [Doc. Nos. 16 at 9 & 17 at 17].[2]

         Seven of the eight subpoenas are to realtors and/or realty companies, requesting records and communications dating back to January 1, 2002. [Doc. Nos. 32-38].[3] Attached to each subpoena is Exhibit “1, ” which lists the properties within the Clifford Farms housing addition. The other subpoena request is to [Doc. No. 31]. It requests all content posted to the Clifford Farms neighborhood social media page.

         Defendant asserts that service of the eight requested subpoenas was prompted by the January 15, 2018, deposition testimony of Plaintiff Brian Wehr. Defendant has attached the relevant portions of Mr. Wehr's testimony. [Doc. No. 41-1]. Mr. Wehr described a 15-minute conference call between himself, his realtor (Darren Webb), the seller's realtor (Carlene Rupp) and an attorney from the Ryan Whaley firm that occurred in August 2016, after Mr. Wehr had already made an offer on the home. According to Mr. Wehr, the attorney from Ryan Whaley disclosed that there were “some water issues up at the front of the neighborhood.” [Doc. No. 41-1 at 17]. Mr. Wehr did not recall ever receiving a written disclosure regarding such issues.

         Defendant, however, admits that Mr. Wehr disclosed this meeting in his written discovery responses dated October 26, 2017, three months prior to Mr. Wehr's deposition. Def.'s Resp. [Doc. No. 41 at 6]; see also Ex. 3 to Def.'s Resp. [Doc. No. 41-3 at 9-10, 28].[4]Although Mr. Wehr omitted the fact that an attorney from Ryan Whaley was present and made the disclosure, Defendant still had notice of the disclosure in October 2017. Further, Plaintiff contends that both agents to the sales transaction - Darren Webb and Carlene Rupp - were identified in a document produced to Defendant on or about August 3, 2017. Pls.' Reply [Doc. No. 42 at 4]; see also Ex. 2 to Pls.' Reply [Doc. No. 42-2].[5] The Court concludes that Defendant has not provided an adequate explanation for the delay in serving the subpoena on Carlene Rupp.

         The Court has reviewed the relevant portions of Mr. Wehr's deposition testimony. Although Defendant contends that the other seven subpoenas were also prompted by Mr. Wehr's testimony, Mr. Wehr's testimony does not appear to relate at all to these seven production requests. There is no reference to in Mr. Wehr's testimony or to a neighborhood social media page. Further, the other realtors were not involved in the disclosure meeting between ...

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