United States District Court, E.D. Texas, Sherman Division
FRANKLIN D. AZAR & ASSOCIATES, P.C., Plaintiff,
JERRY L. BRYANT, ET AL., Defendants.
MEMORANDUM OPINION AND ORDER
KIMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE.
before the Court is the Motion to Extend Discovery Deadline
to Conduct Depositions of Franklin Azar, Individually and as
the Corporate Representative of Franklin D. Azar and
Associates, P.C., and Lauren McNeil, Individually and as the
Corporate Representative of McNeil Consultants LLC (the
“Motion”), filed by Defendants Coety L. Bryant,
Deanna Bryant, Exclusive Legal Marketing, Inc. (collectively,
the “Bryant Defendants”) (Dkt. 253). In the
Motion, the Bryant Defendants request extension of the
discovery deadline to May 31, 2019, for the sole purpose of
conducting the noticed depositions of Franklin D. Azar
(“Azar”) and Lauren von Atkinson McNeil
(“Lauren McNeil”), in their individual and
corporate representative capacities. See Dkt. 253.
Bryant Defendants argue the discovery deadline should be
extended because their counsel suffered an injury and was
unable to attend Azar's deposition in Denver, and because
Lauren McNeil's deposition “did not take place in
part because of scheduling issues and apparently because of a
settlement entered into between the Plaintiff and the McNeil
Defendants.” See Dkt. 253 at 2-5. The Motion
is opposed by Plaintiff Azar & Associates, P.C.
(“Plaintiff”) and Defendants Daniel McNeil and
Lauren Von Atkinson McNeil (the “McNeil
Defendants”). See Dkts. 254, 256.
suit was filed on June 14, 2017. See Dkt. 1. The
discovery deadline in this case ended on April 30, 2019.
See Dkt. 253 at 1; Dkt. 147. The Motion was filed on
April 30, 2019, seeking an additional thirty-one-day
extension of the discovery deadline. See Dkt. 253.
There are three fully briefed Motions for Summary Judgment
pending in this case. See Dkts. 184, 186, 217. This
matter is set for mediation on June 24, 2019, and a pretrial
conference on August 2, 2019. See Dkts. 147, 261,
deposition of Azar was scheduled and completed in Denver,
Colorado, on April 24, 2019. See Dkt. 253 at 3.
Lauren McNeil's deposition was noticed for April 11,
2019. Lauren McNeil's deposition was later cancelled.
See Dkt. 253 at 2. No. party noticed a new
deposition date for Lauren McNeil; however, on April 26,
2019, the Bryant Defendants emailed the McNeil Defendants
regarding scheduling her deposition. See Dkt. 256 at
2. To date, Lauren McNeil's deposition has not been
Charles v. Wade, 665 F.2d 661, 665-65 (5th Cir. Unit
B 1982), the Fifth Circuit held that a party in a civil case
must be allowed to take a witness's deposition to
preserve the witness's testimony for trial-even past the
discovery deadline-as long as the deposition does not
unfairly prejudice the opposing side. See also E.E.O.C.
v. Big Lots Stores, Inc., 2009 WL 3617603, at *2 (E.D.
Tex. Oct. 29, 2009) (collecting factors to consider in
determining whether a late deposition to preserve testimony
for trial should be allowed); Franklin Bank, SSL v. St.
Paul Mercury Ins. Co., 2008 WL 11389636, at *2 (S.D.
Tex. Sep. 24, 2008) (analyzing the Fifth Circuit's
holding in Charles).
case, the extension of the deposition deadline sought is
seeking the deposition of witnesses for trial. The
dispositive motion deadline has passed and the summary
judgment motions are briefed. See, for example,
Dkts. 184, 186, 217. Accordingly, Rule 16(b)(4) is not
implicated and the Bryant Defendants need not show good
the factors set forth in Big Lots Stores, the Court
finds that the testimony of Azar and Lauren McNeil is
integral to the presentation of the Bryant Defendants'
case and warrants extension of the deposition deadline. For
example, Lauren McNeil has completed a declaration in this
case and, given Lauren McNeil's settlement with Azar,
Bryant Defendants may be otherwise unable to obtain or
present the desired evidence absent additional depositions.
See Dkt. 253 at 2. Moreover, in reviewing the
filings, the Court finds that no prejudice will result to
either Azar or Lauren McNeil by allowing the Bryant
Defendants to depose them.
consideration, the Court finds the Bryant Defendants shall be
allowed to take the depositions of Azar and Lauren McNeil.
Accordingly, the Motion (Dkt. 253) is hereby GRANTED
IN PART and DENIED IN PART. The
Bryant Defendants shall be permitted to take the depositions
of Azar and Lauren McNeil subject to the limitations listed
hereby ORDERED that the depositions of Azar
and Lauren McNeil shall be conducted after
the parties' mediation, scheduled on June 24, 2019, and
before the parties' Pretrial Conference,
scheduled on August 2, 2019. See Dkts. 147, 261,
it is hereby ORDERED that the depositions of
Azar and Lauren McNeil shall be scheduled at a location
convenient to Azar and Lauren McNeil and that the Bryant
Defendants shall be responsible for any additional costs
incurred in taking the depositions.