It’s crunch time people.  No more browsing.  No more pondering.  No more scrolling.  Pick something and buy it.  More importantly, you need to ship it.  You may not be able to see all of your family this year, but you still want to make sure your gift makes it under their tree.  If so, today is the last day to ship FedEx and UPS 2-day and tomorrow is the last day for one-day delivery from Amazon.  These are not suggestions; they are hard and fast deadlines.  So, if you want your nephew Billy to get those headphones or Aunt Sally to get her air fryer, you have a narrow window and it’s closing quickly.  If this is a wakeup call for all you last-minute shoppers out there, Miravelle v. One World Techs., 2020 U.S. Dist. LEXIS 237451 (E.D. Mo. Dec. 17, 2020) should be the same for procrastinating plaintiffs.  Discovery deadlines are real.

This is not a drug or device case, but rather a consumer products liability action.  But the lesson applies equally.  Discovery in this case was largely conducted in 2019.  During which time, plaintiff served document requests on defendants.  Defendants responded. Motion practice ensued and additional documents were produced.  The scope of the documents produced is similar to what we see in pharma cases – design materials, packaging, operator’s manual, product evaluation and inspection records, regulatory documents, safety reviews, and reports of similar accidents and injuries.  Id. at *2-3.

The day before discovery was set to close, plaintiff asked the court for permission to conduct a 30(b)(6) deposition of defendant after the discovery deadline.  The court granted plaintiff’s request.  Id. at *3-4.  Eleven days after the close of discovery, plaintiff served the 30(b)(6) deposition notice with a list of proposed topics for the corporate witness and a request for the production of documents.  Defendants objected to plaintiff’s belated “attempt to obtain documents under the guise of a Rule 30(b)(6) deposition notice.”  Id. at *5.

Under Federal Rule of Civil Procedure 30 which governs depositions: “The notice to a party deponent may be accompanied by a request under Rule 34 to produce documents and tangible things at the deposition.”  Pursuant to Rule 34, a party who receives a document request has thirty days to respond in writing.  Consequently, a party serving a document request needs to do so at least thirty days before the end of discovery.  Rule 34 does not have an exception for document requests that accompany deposition notices.

In the case at hand, plaintiff’s 30(b)(6) deposition notice requested defendants produce a number of documents that plaintiff had “never requested or sought” in its prior document requests served during the discovery period. Id. at *10.  Applying the rules, the court concluded that plaintiff could not use the deposition notice to “avoid the timing limitations imposed on Rule 34 requests for production.”  Id.  Plaintiff only sought and therefore only received an extension of the discovery period to take the corporate designee deposition, “not to re-open document discovery.”  Id. at *11.

This is not a matter of form over substance.  The request for additional time to take the deposition came just as discovery was closing and only two weeks before the deadlines for filing summary judgment and Daubert motions.  Id.  Defendants had already put in substantial work on those motions based on the existing record evidence.  “Starting over on document requests that could have been requested years earlier would work to the prejudice of Defendants.”  Id.

Plaintiff was prohibited from obtaining documents or questioning the witness on topics not previously requested in earlier discovery requests.  Id. at *12.  Moral of the story, if you wait to the last minute, you may get shut out.  While we have no advice for the procrastinating plaintiff, we highly recommend e-gift cards for the last-minute shoppers.