Not A Good Idea To Irritate A Federal Judge.

judgetorresirritated

Let's see if I can boil this down.

Summary judgment filed.

Plaintiffs say depo must be taken first.

Emails about scheduling depos occur from February through April.

In the meantime Magistrate Judge Torres files R&R granting motion.

Plaintiffs move for reconsideration, saying "hmm, what about that depo"?

Here's why the Judge is irritated:

As it turns out, after briefing on the summary judgment motion closed Plaintiffs appear to have dragged their feet to schedule the deposition. Though it was represented to the Court that it would take place in February, and Defendants’ counsel appears to have provided dates for the deposition consistent with that representation, for some reason Plaintiffs did not promptly schedule the deposition even with the proverbial sword of Damocles hanging over their head. Plaintiffs, instead, got around to the issue three months later in April when counsel requested new dates for late April. By that point, of course, this Court disposed of the pending summary judgment motion with the very reasonable assumption that the record by that point had closed.

The Judge continues:

Plaintiffs then shamelessly maintain that this Court “overlooked” the parties’ agreement as to the taking of the Rule 30(b)(6) deposition, without any mention or regret over their own lack of diligence.

A few points:

I'm sympathetic to the Magistrate Judge, who spent time working on an R&R and now he's got to do it all over again.

But it can take a while to schedule a 30(b)(6) deposition. The party seeking the deposition is not in total control of that timetable. I don't think three months is that unusual, though I agree they probably should have pushed it a little quicker. But is that really "dragging their feet" and "lack of diligence" in the context of federal court litigation?

Perhaps a telephonic status would have made sense, in order to ask about the depo or set a deadline for its completion?

Also, if the depo had been taken, wouldn't someone alert the Court to it? Like a supplement to the motion, or a surreply, or even a notice of filing?

But, in even-handed fashion, the Judge is also ticked at the defendants:

Not to be outdone, Defendants’ response was equally irritating. Rather than acknowledging their earlier agreement as to the need for completing the Rule 30(b)(6) deposition, Defendants tried to back away from and minimize it by claiming that they never agreed the deposition was necessary or relevant. While conceding that they did not object to the deposition, Defendants argued that they have always maintained that resolution of the motion need not await “far-ranging” discovery.Defendants oppose reconsideration because any additional discovery would be futile, as this Court’s Report found, and there has been no newly found evidence as Plaintiffs’ supporting evidence was produced to them long ago.

He then lowers the boom:

Faced with this record, we readily conclude that both parties have fallen short in their obligation to assist this Court in rendering timely and fair justice in this case. Both parties should have timely advised the Court as to the delay in completing this deposition, and their failure to do so led to unnecessary consumption of judicial resources.

So, what to do?

Order the depo be taken but let everyone know the depo is superfluous and the ruling will be the same anyways:

But upon reflection we conclude instead that reconsideration is still required here to avoid any further wasted judicial resources. Although we still believe that the Report’s reasoning is still sound and may not be overcome by anything learned in this deposition, the risk of error is tangibly present in this record.

So now, to "avoid any further wasted judicial resources," the plaintiffs have to schedule and take a pointless deposition that won't affect the outcome anyways, pay a court reporter, and file something in a futile effort to change the Judge's mind.

What other choice do they have (besides just giving up)?