Donohoe v. Bonneville International Corporation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

______________________________
)
LEO DONOHOE, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-949 (RWR)
)
)
BONNEVILLE INT’L CORP., )
)
Defendant. )
______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Leo Donohoe brings this action against his former

employer Bonneville International Corporation, alleging that

Bonneville discriminated against him on the basis of his age, in

violation of the District of Columbia Human Rights Act, D.C. Code

§ 2-1401 et. seq. Donohoe has filed five sets of objections to

discovery rulings made by the magistrate judge. Because Donohoe

has not shown error in rulings denying him leave to multiply his

allotted number of depositions, his objections will be overruled

except as to leave to depose Paul White, Jory Steiber, and Ralph

Renzi. In addition, because Donohoe for the most part has not

shown that issuing a protective order and denying his motion to

compel was error, his objections to these rulings will be

overruled except to the extent the rulings were based upon an

erroneous finding that the parties’ joint discovery plan
 -2-

contained a binding stipulation limiting each side to thirty

document requests per side.

BACKGROUND

Donohoe, who was over forty during the events relevant to

this action, contends that Bonneville, his former employer,

discriminated against him because of his age by improperly

including him in the Reduction in Force (“RIF”) conducted in

Bonneville’s Washington, D.C. office, and by subsequently

selecting Matt Spacciapoli, a younger, allegedly less-qualified

individual, for the position of Director of National Sales/Sports

Sales Manager over Donohoe.

During the course of discovery, Donohoe filed two motions

seeking leave to increase the number of depositions permitted for

each party under the scheduling order from seven to twenty-five.

The magistrate judge denied both motions. In addition, Donohoe

filed a motion to compel Bonneville to respond to certain

documents requests, and Bonneville filed a motion for a

protective order to bar such discovery. The magistrate judge

denied Donohoe’s motion to compel and granted Bonneville’s motion

for a protective order barring discovery of the contested

documents, with the exception that Donohoe could inquire into

Bonneville’s headquarters’ role in the January 2006 RIF in

Washington, D.C. through a Rule 30(b)(6) deposition of

Bonneville. Donohoe has filed five sets of objections to the

magistrate judge’s discovery rulings.
 -3-

DISCUSSION

Federal Rule of Civil Procedure 72(a) and Local Civil Rule

72.2(b) allow a party to seek reconsideration of a magistrate

judge’s decision in a discovery dispute. “On review, the

magistrate judge’s decision is entitled to great deference unless

it is clearly erroneous or contrary to law, that is, if on the

entire evidence the court is left with the definite and firm

conviction that a mistake has been committed.” Moore v.

Chertoff, 577 F. Supp. 2d 165, 167 (D.D.C. 2008) (internal

quotations and citations omitted); see also Graham v. Mukasey,

247 F.R.D. 205, 207 (D.D.C. 2008); LCvR 72.2(c) (“Upon

consideration of objections filed . . . , a district judge may

modify or set aside any portion of a magistrate judge’s order

under this Rule found to be clearly erroneous or contrary to

law.”).

“Parties may obtain discovery regarding any nonprivileged

matter that is relevant to any party’s claim or defense . . . .”

Fed. R. Civ. P. 26(b)(1). “Relevant information need not be

admissible at the trial if the discovery appears reasonably

calculated to lead to the discovery of admissible evidence.”

Id.; see United States ex rel. Fargo v. M&T Mortgage Corp., 235

F.R.D. 11, 21 (D.D.C. 2006) (“Rule 26(b)(1) entitles parties to

broad discovery, permitting discovery that is reasonably

calculated to lead to the discovery of admissible evidence.”

(quotations omitted)); Peskoff v. Faber, Civil Action No. 04-526
 -4-

(HHK/JMF), 2006 WL 1933483, at *2 (D.D.C. July 11, 2006) (finding

that a party’s discovery request was not overly broad where it

was relevant, meaning that it was reasonably calculated to lead

to the discovery of evidence relating to plaintiff’s claim).

“For the purposes of discovery, relevancy is broadly construed

and encompasses any material that bears on, or that reasonably

leads to other matters that could bear on, any issue that is or

may be in the case.” Alexander v. F.B.I., 194 F.R.D. 316, 325

(D.D.C. 2000). Moreover, because discrimination is “particularly

hard to prove . . . , discovery in these cases is necessarily

broad.” Mitchell v. Nat’l R.R. Passenger Corp., 208 F.R.D. 455,

459 (D.D.C. 2002).

Although discovery rules “are to be accorded a broad and

liberal treatment,” Hickman v. Taylor, 329 U.S. 495, 507 (1947),

under Federal Rule of Civil Procedure 26(b)(2)(C), discovery

should be limited by the court

if it determines that: (i) the discovery sought is
unreasonably cumulative or duplicative, or can be
obtained from some other source that is more
convenient, less burdensome, or less expensive; (ii)
the party seeking discovery has had ample opportunity
to obtain the information by discovery in the action;
or (iii) the burden or expense of the proposed
discovery outweighs its likely benefit, considering the
needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at
stake in the action, and the importance of the
discovery in resolving the issues.

Fed. R. Civ. P. 26(b)(2)(C).
 -5-

I. MOTIONS FOR LEAVE TO TAKE ADDITIONAL DEPOSITIONS

Donohoe objects to the denial of his two motions for leave

to increase the number of depositions permitted under the

scheduling order in this case. Donohoe’s original motion sought

leave to increase the number of depositions permitted from seven

to twenty-five before a single deposition had been taken in this

case, naming only fifteen potential deponents, and without

proffering any specific need for each deposition. The magistrate

judge denied this motion because, among other reasons, the motion

was premature because Donohoe had not exhausted his permitted

seven depositions. Donohoe’s objections to this ruling identify

no legal error, and instead put forth additional arguments never

presented to the magistrate judge. Because Donohoe has not shown

the denial of his first motion to be clearly erroneous, his

objections will be overruled.

Donohoe’s renewed motion for leave to increase the number of

depositions permitted again sought to increase the number of

permitted depositions from seven to twenty-five. Incorporating

by reference the arguments made in his previous objections to the

magistrate judge’s ruling, Donohoe identified the seven

depositions taken or noticed under the original scheduling order,

listed an additional fifteen potential witnesses, and briefly

described his need to depose these individuals. In his reply in

support of his renewed motion, in the event that the magistrate

judge would not grant leave to take up to twenty-five
 -6-

depositions, he requested leave to depose thirteen “essential

witnesses” beyond his seven allocated depositions.1 Bonneville

opposed leave for any additional depositions, arguing that, among

other reasons, the depositions would be duplicative or “merely

cumulative” of other evidence obtained in discovery; Donohoe had

not shown that he had exhausted less burdensome means to obtain

information sought from these depositions nor had he showed that

these depositions would likely reveal new information; and the

additional depositions “would unnecessarily drive up the costs of

discovery well beyond its already substantial level.” (Def.’s

Opp’n to Pl.’s Objns. to Order Denying Leave to Take Add’l Deps.

(“Def.’s May 16 Opp’n”) at 13; Def.’s Consol. Opp’n to Pl.’s

Supp. Objns. and Opp’n to Pl.’s Renewed Mot. for Add’l Deps.

(“Def.’s June 26 Opp’n”) at 5, 7.) Adopting Bonneville’s

arguments as the court’s reasoning, the magistrate judge denied

Donohoe’s renewed motion for leave to increase the number of

permitted depositions. Donohoe filed objections to this ruling,

contending that he has shown good cause for each additional

deposition.2 To the extent Donohoe’s renewed motion sought to

1
The reply’s list of thirteen “essential witnesses” is not
merely a subset of the original requested depositions, but
instead adds witnesses that were not listed in Donohoe’s renewed
motion.
2
Donohoe also asserts that it was error to deny him less
than ten depositions because he is entitled to a minimum of ten
depositions under the Federal Rules of Civil Procedure. (Pl.’s
Objns. to Order of December 4, 2008 at 2 (citing Fed. R. Civ. P.
30(a)(2)(A).) Although Federal Rule 30(a)(2) generally does
 -7-

leave to take additional depositions without identifying proposed

deponents, making it impossible to assess the propriety of

granting leave under Rule 26(b)(2), there was no error committed

in denying such a vague request. Donohoe does provide some basis

for assessing whether to allow him depositions of individuals he

does identify.

A. Paul White

Donohoe sought leave to depose Paul White, whom Bonneville

has identified as an expert who may testify at trial. Notably,

Donohoe did not seek to depose White before Donohoe exhausted his

seven depositions permitted under the scheduling order even

though he had prior notice that Bonneville intended to use White.

Donohoe’s choice to use his original depositions to obtain

testimony from lay witnesses, who may or may not become trial

witnesses and whose testimony may be duplicative of information

obtained through other discovery, certainly raises a question

about his efforts to judiciously manage the discovery tools he

was granted. Nor does Donohoe’s choice necessarily weigh in his

permit ten depositions without leave of court, under Federal Rule
26(b)(2), “[b]y order, the court may alter the limits in [the]
rules on the number of depositions and interrogatories or on the
length of depositions under Rule 30.” Similarly, Federal Rule
16(b)(3)(B)(ii) permits a court to “modify the extent of
discovery.” In addition, the Local Rule 26.2(b) expressly
instructs that “[w]hen the scheduling order sets limits different
from those contained in [the Federal Rules], the scheduling order
shall govern.” In light of these rules, Donohoe’s claim that the
Federal Rules provide him a right to a minimum of ten depositions
without leave of court fails as a matter of law.
 -8-

favor when assessing whether the benefit of the proposed

additional discovery outweighs the burden on Bonneville, in light

of the discovery efforts already expended. However, White’s

testimony is proffered by Bonneville as expert opinion testimony,

and no alternative method of testing this expert’s opinion has

been revealed. Thus, White’s testimony would not be unreasonably

cumulative or duplicative of other discovery, it likely cannot be

obtained from another source, and the benefit of this deposition

would likely outweigh the burden on the parties. Donohoe’s

objection to the court denying his motion for leave to depose

White will be sustained and leave to depose White will be

granted.

B. Jory Steiber

Donohoe sought leave to depose Jory Steiber, contending that

Steiber may have certain information relevant to his claims,

including e-mails and depictions of Donohoe created or

distributed by Bonneville’s employees, and that Steiber is unable

to provide testimony without a subpoena. For this requested

deposition, Donohoe has identified specific information within

Steiber’s possession that does not appear to have been collected

through other discovery or to be discoverable through other less

burdensome means. Accordingly, Donohoe’s objection to the court

denying leave to depose Steiber is sustained and leave to depose

Steiber will be granted.
 -9-

C. Ralph Renzi

Donohoe sought leave to depose Ralphi Renzi, Spacciapoli’s

former supervisor, who “has information regarding [his]

experience, qualifications and reputation with the industry.”

(Pl.’s Objns. to Order Denying Leave to Take Add’l Deps. (Pl.’s

May 2 Objns.”) at 12.) It appears that none of the seven

witnesses already deposed purported to have previously worked

with or supervised Spacciapoli, which suggests that Renzi’s

testimony would not be duplicative of previously discovered

information and the likely benefit of this testimony would

outweigh the additional burden. Accordingly, Donohoe’s objection

to the court denying leave to depose Renzi will be sustained and

leave to depose Renzi will be granted.

D. John Hesano, Christine Travaligni, Matt Kluft, Scott
Porretti, Mark Clowers, Mark Grey, Sari Fruitbine

Donohoe sought leave to depose seven named individuals

because he contends that Bonneville relied on the opinions of

these individuals when hiring Spacciapolli over Donohoe for the

position of Director of National Sales/Sports Sales. Bonneville

opposed, contending that the relevant opinions of these

individuals were voiced at a meeting attended by Joel Oxley and

Matt Mills, and Donohoe was able to explore these opinions

through their depositions. (Def.’s May 16 Opp’n at 13.)

Donohoe’s filings did not explain why Oxley and Mills’

recollections of the meeting were deficient or what new
 -10-

information he sought from these deponents that was not

discoverable through the depositions of Oxley and Mills.

Accordingly, it was not clear error for the magistrate judge to

accept Bonneville’s arguments and deny Donohoe leave to take

these depositions, and Donohoe’s objections to this ruling will

be overruled.

E. Skip Quast

Donohoe sought leave to depose Skip Quast, who he alleges

has knowledge of the reasons Spacciapoli was “transferred out of

the position of Director of National Sales/Sports Sales shortly

after he was selected for the position over [Donohoe].” (Pl.’s

May 2 Objns. at 12.) Donohoe contends that “Spacciapoli’s

performance and experience are directly at issue[] in this

litigation” (id.), but Quast’s alleged knowledge is about

Spacciapoli’s performance after he was hired over Donohoe, and

such performance could not have factored into Bonneville’s

employment decisions challenged in this case. Although evidence

of post-decision performance might marginally corroborate pre-

decision knowledge of lesser performance-related qualifications,

the decision to accept Bonneville’s contention that such

additional discovery would be burdensome relative to its likely

benefit to Donohoe’s case is not clearly erroneous. Donohoe’s

objection to the court denying leave to depose Quast will be

overruled.
 -11-

F. Bob Johnson, Bruce Reese, and Scarlett Pate

Donohoe sought leave to depose three individuals who had

been corporate officers in Bonneville’s headquarters in Salt Lake

City, Utah because he contends that they each had “knowledge

regarding the reorganization of the radio stations and

implementation of the Reduction in Force that occurred in January

2006 in the Washington, D.C. area.” (Pl.’s May 2 Objns. at 12-

13.) Information about the reorganization and RIF in Washington,

D.C. was a proper subject for testimony by Oxley as Bonneville’s

Rule 30(b)(6) deponent, and it appears from the parties’ filings

that Donohoe did provide notice to Bonneville that such

information was sought from the Rule 30(b)(6) deposition.

Donohoe has not shown that he attempted to elicit, but was unable

to obtain, specific information relating to the RIF through

Oxley’s Rule 30(b)(6) deposition, or that it was likely that one

of these proposed deponents possessed relevant information that

would not be cumulative or duplicative of Oxley’s Rule 30(b)(6)

deposition. Accordingly, it was not clearly erroneous to deny

Donohoe’s request for these additional depositions, and Donohoe’s

objections to this ruling will be overruled.

G. Daniel Kliener

Donohoe sought leave to depose Daniel Kliener, a current

Bonneville employee, contending that Kliener “has information

regarding [Donohoe’s] employment with Bonneville and [his]

experience and reputation within the industry” and “may have
 -12-

information regarding complaints about the manner in which Matt

Mills may have treated older employees[.]” (Pl.’s May 2 Objns.

at 16.) Although Donohoe’s contentions suggest that Kliener may

have some relevant information, Dohonoe has already had the

opportunity to depose Richard O’Brien, whom Donohoe contended had

information about complaints made by older employees against

Mills and information regarding Donohoe’s performance, and Jody

Lish, whom Donohoe contended had knowledge of Donohoe and

Spacciapoli’s experience and reputations, and knowledge of the

way Mills treated older workers. In light of Donohoe’s previous

opportunities to obtain information similar to that information

sought from Kliener, the decision to accept Bonneville’s

arguments that the information sought would be merely cumulative

or that the burden of this additional deposition would outweigh

any likely benefit was not clearly erroneous. Accordingly,

Donohoe’s objection to this ruling will be overruled.

H. Rule 30(b)(6) designee of Katz Group

Donohoe sought leave to depose a Rule 30(b)(6) designee of

Katz Group for the first time in his reply in support of his

renewed motion for leave to take additional depositions, and

without a clear explanation of what information would be sought

from a Rule 30(b)(6) deponent. In light of Donohoe’s failure to

explain what information would be sought from this Rule 30(b)(6)

deposition, denying leave to take this deposition was not clearly

erroneous and Donohoe’s objection will be overruled.
 -13-

I. Cecil Martin

Donohoe sought leave to depose Cecil Martin, a former

Bonneville employee, who he contends overheard a conversation

between Mills and Oxley about eliminating older employees.

Bonneville objected to his request, arguing specifically that

Donohoe’s grounds for seeking this deposition were “exceptionally

speculative”; that Donohoe had not shown that he has exhausted

less burdensome means of gathering information from Martin; and

that it was making a good faith effort to collect Martin’s last

known address and contact information to facilitate Donohoe’s

efforts to contact Martin informally. (Def.’s June 26 Opp’n at

5-6.) It appears that the magistrate judge accepted Bonneville’s

contentions and Donohoe has not established that accepting these

arguments was clearly erroneous. Accordingly, Donohoe’s

objection to this ruling will be overruled.

J. Kevin Ulich

Donohoe sought leave to depose Kevin Ulich, a representative

from the National’s Baseball Group, based on Oxley’s testimony

that he discussed the reorganization with Ulich. Based on

Donohoe’s brief description of the alleged conversation between

Oxley and Ulich and the portion of the Oxley deposition

transcript provided in his filings, he has not shown that it was

clearly erroneous for the magistrate judge to conclude that the

burden of this additional deposition would outweigh its benefit

or that Oxley’s recollection of the conversation was so spare
 -14-

that Ulich’s testimony would not likely be merely duplicative or

cumulative. Accordingly, the magistrate judge’s conclusion will

be accorded deference, and Donohoe’s objection to this ruling

will be overruled.

II. DONOHOE’S MOTION TO COMPEL AND BONNEVILLE’S MOTION FOR A
PROTECTIVE ORDER

Donohoe has filed objections to the magistrate judge’s two

rulings on his motion to compel discovery and Bonneville’s motion

for a protective order. Donohoe filed a motion to compel

Bonneville to produce six categories of documents: (1) documents

explaining Bonneville’s 2006 RIF; (2) Bonneville’s sales and

financial documents; (3) Bonneville’s file containing harassment

claims made against Mills; (4) all documents requested in

Donohoe’s supplemental requests for production of documents; (5)

documents properly requested of Bonneville’s 30(b)(6) deponent

Oxley; and (6) documents and information relating to Bonneville’s

RIF in San Francisco, California. Bonneville opposed Donohoe’s

motion and filed a motion for a protective order, contending

Donohoe should be barred from seeking (1) information regarding

Bonneville’s finances and net worth; (2) information regarding

Bonneville’s operations outside of Washington, D.C.; and (3)

document production in excess of thirty document requests, which

it contends was an agreed-upon limit between the parties.

(Def.’s Mot. for a Protective Order at 2.) On July 29, 2008,

after a hearing on these motions, the magistrate judge granted
 -15-

Bonneville’s motion for a protective order and denied Donohoe’s

motion to compel, “except with respect to discovery regarding

[Bonneville’s] headquarters’ role, if any, in the District of

Columbia,” and directed the parties to file a joint supplement,

including the transcript of Oxley’s deposition to aid

consideration of whether to permit discovery about headquarters’

role in the RIF. (Hr’g Tr. 45:20-47:2, July 29, 2008.) On

December 5, 2008, after reviewing the parties’ joint supplement,

the magistrate judge ordered that Donohoe could “inquire, at a

30(b)(6) deposition of [Bonneville], what role, if any,

[Bonneville’s] headquarters had in the January, 2006 [RIF] in

Washington, D.C.” Donohoe has filed two sets of objections to

these rulings, specifically arguing that (1) it was error to deny

his supplemental requests for documents, including through his

Rule 30(b)(6) notice of deposition, because the parties never

stipulated to thirty document requests per side; (2) it was error

to deny his request for documents relating to the San Francisco

RIF because he has a right to introduce such evidence at trial;

and (3) it was error to deny his request for verification of the

search conducted for the Mills file.3

3
Donohoe’s objections also make general allegations that the
discovery sought is “relevant and reasonably calculated to [lead
to] the discovery of admissible evidence” and that he has been
unduly prejudiced by the denial of his motions. (Pl.’s Objns. to
Order of July 29, 2008 at 3.) Such general allegations do not
demonstrate that the magistrate judge’s decisions to limit
discovery for the various reasons adopted were clearly erroneous.
 -16-

Donohoe’s first objection that it was error to accept

Bonneville’s assertion that the parties’ Local Rule 16.3 joint

discovery plan contains a binding stipulation limiting each side

to thirty document requests has merit and will be sustained. The

parties’ Rule 16.3 report states that the parties “anticipate”

that thirty document requests per side “should be adequate.”

(Joint LCvR 16.3 Report at 9.) That language does not bind the

parties to only thirty requests, and the scheduling order

similarly does not impose a binding limit on the number of

document requests per side. Accordingly, Donohoe’s objections to

the magistrate judge’s July 29, 2008 and December 5, 2008 rulings

will be sustained to the extent that these rulings were based on

a finding that the parties’ Rule 16.3 report bound them to a

limit of thirty document requests.

On the other hand, Donohoe’s objections to the protective

order shielding Bonneville from producing documents related to

the San Francisco RIF and additional evidence of efforts to

locate the Mills file will be overruled. At the July 29, 2008

hearing, the magistrate judge rejected Donohoe’s argument that he

was entitled to discovery from the San Francisco office, and,

after reviewing the transcript of the Oxley deposition, concluded

that the appropriate discovery from Bonneville’s headquarters

would be limited to a Rule 30(b)(6) deposition on Bonneville’s

headquarters’ role in the Washington, D.C. RIF. Notably, the

magistrate judge did suggest that the parties could seek
 -17-

reconsideration of her ruling with respect to the San Francisco

RIF after the Rule 30(b)(6) deposition if information obtained

through this deposition supported additional discovery regarding

the San Francisco RIF. (Hr’g Tr. 49:9-16.) It appears that this

ruling considered Bonneville’s arguments that the San Francisco

RIF was not related to the Washington, D.C. RIF and that

discovery outside of Washington, D.C. would be unduly burdensome

in this single-plaintiff discrimination case, and found either

that Donohoe had not sufficiently shown a need for the additional

discovery or that the burden of extensive discovery outside of

Washington, D.C. would outweigh any benefit from such discovery.

Donohoe relies on the Supreme Court’s recent opinion in

Sprint/United Management Co. v. Mendelsohn, 128 S. Ct. 1140

(2008) to dispute the magistrate judge’s conclusion. Mendelsohn

concluded that the “question whether evidence of discrimination

by other supervisors is relevant in an individual

[discrimination] case is fact based and depends on many factors,

including how closely related the evidence is to the plaintiff’s

circumstances and theory of the case[,]” that evidence must be

analyzed for admissibility under Federal Rules of Evidence 401

and 403, and it cannot be excluded as per se irrelevant. Id. at

1147. Mendelsohn is not directly applicable here. Under Fed. R.

Civ. P. 26(b)(2)(C), a court may limit discovery, even if the

proposed discovery may arguably lead to evidence that would be

admissible under Fed. R. Evid. 401 and 403. The rulings limiting
 -18-

discovery in this action are not rulings on the admissibility at

trial of evidence relating to the San Francisco RIF. While

evidence of the San Francisco RIF may be admissible at trial, it

does not follow that Donohoe is entitled to all of his proposed

discovery relating to the San Francisco RIF. Where such proposed

discovery would be more burdensome then beneficial or merely

cumulative of other relevant evidence, a court may properly limit

such discovery. See Fed. R. Civ. P. 26(b)(2)(C)(iii). Donohoe’s

contention that evidence of the San Francisco RIF may be

admissible at trial does not defeat the magistrate judge’s

conclusion that the requested discovery was not warranted, and

Donohoe has not shown that ruling to be clearly erroneous.

Accordingly, this objection will be overruled.

In addition, Donohoe has not shown that the refusal to

compel Bonneville to provide additional verification detailing

searches conducted to locate the Mills file was erroneous. The

magistrate judge’s rulings appear to accept Bonneville’s

contention that it has responded fully to its obligation to

search its Washington, D.C. office for relevant documents within

the first thirty requests, including the Mills file.

Bonneville’s submissions from counsel and the record reflect that

Bonneville has made good faith efforts to disclose relevant

documents, including by supplementing its disclosure when new

documents were discovered. Donohoe has not shown it was clearly

erroneous to accept Bonneville’s assertions that diligent efforts
 -19-

were made to locate the Mills file. Accordingly, this objection

is overruled.4

CONCLUSION AND ORDER

For the reasons discussed above, it is hereby

ORDERED that the plaintiff’s objections [20, 33] to the

order denying his motion for leave to increase the number of

permitted depositions be, and hereby are, OVERRULED. It is

further

ORDERED that the plaintiff’s objections [63] to the order

denying his renewed motion for leave to increase the number of

permitted depositions be, and hereby are, SUSTAINED IN PART and

OVERRULED IN PART. The plaintiff may depose Paul White, Jory

Steiber, and Ralph Renzi. It is further

ORDERED that the plaintiff’s objections [44, 64] to the

order denying his motion to compel and granting the defendant’s

motion for a protective order be, and hereby are, SUSTAINED IN

PART and OVERRULED IN PART. Those portions of the magistrate

judge’s July 29, 2008 and December 5, 2008 rulings grounded upon

the conclusion that the parties’ Rule 16.3 report binds them to a

limit of thirty document requests per side are vacated and

remanded for further proceedings consistent with this opinion.

It is further

4
The parties are cautioned that this opinion is not an
invitation for either party to submit new document requests to
the other side. Moreover, the magistrate judge’s rulings as to
which no objections have been sustained are in full force.
 -20-

ORDERED that discovery is EXTENDED until April 10, 2009 for

the limited purpose of compliance with this order. The post-

discovery status conference scheduled for March 17, 2009 is

CANCELED. It is further

ORDERED that the parties confer and file a joint status

report and proposed order by April 14, 2009 suggesting three

mutually convenient dates on which to hold the post-discovery

status conference after the close of discovery.

SIGNED this 27th day of February, 2009.

/s/
RICHARD W. ROBERTS
United States District Judge