United States District Court, D. Utah, Central Division
N. Parrish District Judge.
MEMORANDUM DECISION AND ORDER
M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE.
District Judge Jill N. Parrish referred this case to Chief
Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(A). Before the court is Plaintiff Corel
Software, LLC's (“Corel”) motion to compel
discovery from Mr. Bill Gates (“Mr.
Gates”). The court has carefully reviewed the
written memoranda submitted by the parties. Pursuant to Civil
Rule 7-1(f) of the Rules of Practice for the United States
District Court for the District of Utah, the court has
concluded that oral argument is not necessary and will decide
the motion on the basis of the written memoranda.
See DUCivR 7-1(f).
motion, Corel requests that the court compel Defendant
Microsoft Corporation (“Microsoft”) to produce
certain electronically stored information (“ESI”)
from Mr. Gates and make Mr. Gates available for a four-hour
deposition. Microsoft opposes Corel's motion. Because the
fact discovery deadline in this case passed in June 2016,
Corel must persuade the court that fact discovery should be
reopened to allow the discovery Corel now seeks.
to extend or reopen discovery is committed to the sound
discretion of the trial court.” Smith v. United
States, 834 F.2d 166, 169 (10th Cir. 1987). “Under
rule 6(b) of the Federal Rules of Civil Procedure, the court
may extend discovery for good cause and excusable
neglect.” Vitamins Online, Inc. v. Heartwise,
Inc., No. 2:13-CV-00982-DAK-PMW, 2016 WL 1305144, at *5
(D. Utah Mar. 31, 2016). The Tenth Circuit has set forth the
following factors for courts to consider when determining
whether to reopen discovery:
1) whether trial is imminent, 2) whether the request is
opposed, 3) whether the non-moving party would be prejudiced,
4) whether the moving party was diligent in obtaining
discovery within the guidelines established by the court, 5)
the foreseeability of the need for additional discovery in
light of the time allowed for discovery by the district
court, and 6) the likelihood that the discovery will lead to
Smith, 834 F.2d at 169.
court turns to considering those factors in this case. While
the court will consider all of the factors, it has determined
that the factors relating to diligence and foreseeability are
the most relevant in deciding Corel's motion.
is not imminent in this case, and Microsoft has not persuaded
the court that it would suffer any specific prejudice by
allowing the discovery sought by Corel. Both of those factors
weigh in favor of reopening fact discovery. Microsoft has
opposed Corel's request, which weighs against reopening
court next addresses whether the discovery sought by Corel
was foreseeable before the expiration of the discovery
period. The court concludes that it was foreseeable, which
weighs against reopening discovery. As early as October 2015,
Corel identified Mr. Gates as a relevant witness in its
initial disclosures but did not raise the issue of taking Mr.
Gates' deposition with the court until after expiration
of fact discovery when it filed its original motion to compel
Mr. Gates' deposition in August 2016.
court next addresses whether Corel was diligent in obtaining
the discovery it seeks before expiration of fact discovery.
The court concludes that Corel was not diligent in that
respect, which weighs against reopening discovery. As for Mr.
Gates' deposition, as noted above, Corel identified him
early in this case as a relevant witness but was not diligent
in seeking to take his deposition. Corel was likewise not
diligent in seeking Mr. Gates' ESI. It does not appear
that Corel ever sought to search Mr. Gates' ESI during
fact discovery. Furthermore, Corel did not raise the issue of
Mr. Gates' ESI when it filed its original motion to
compel Mr. Gates' deposition.
explain the timing of its late efforts to seek discovery from
Mr. Gates, Corel takes issue with the timing of
Microsoft's production of ESI from Mr. Steven Sinofsky
(“Mr. Sinofsky”) and certain documents related to
a Department of Justice investigation (“DOJ
Documents”). Corel contends that Microsoft did not
produce Mr. Sinofsky's ESI and the DOJ Documents until
just before and after the close of fact discovery. In
essence, Corel asserts that it did not know until it reviewed
that discovery that it needed the discovery it now seeks from
Mr. Gates. However, Microsoft asserts that it made the DOJ
Documents available for inspection in or around October 2015,
but Corel chose not to inspect them until near the end of
fact discovery. Additionally, Microsoft asserts Corel did not
provide search terms to Microsoft for Mr. Sinofsky's ESI
until May 2016. Corel does not dispute either of those
assertions in its reply memorandum in support of the instant
motion. Based on that record, the court concludes that
Corel's contentions about the timing of Microsoft's
production are unpersuasive.
sixth and final factor addresses the likelihood that the
discovery sought by Corel will lead to relevant evidence.
Without rendering an opinion on the issue, even if the court
were to assume for the sake of argument that Corel has
established that this factor weighs in favor of reopening
discovery, the court would still conclude that the factors of
foreseeability and diligence weigh heavily against reopening
weighing the required factors, the court concludes that
discovery will not be reopened to allow Corel to obtain the
discovery it now seeks through the instant motion.
Accordingly, IT IS HEREBY ORDERED that ...