*1 This matter is before the Court on Plaintiff GJMS LLC's Motion to Compel Depositions and Motion for Sanctions [DE 87], filed on August 26, 2020. Plaintiff asks the Court to compel Defendants to produce Wilbert Hamstra and Tammy Overby for depositions. Defendants filed a response on September 10, 2020, and Plaintiff filed a reply on September 17, 2020.

I. Background

In its Complaint, Plaintiff, a real estate owner, alleges that Defendants, who managed GJMS properties, sought improper payments from GJMS and made improper disbursements of GJMS funds. This is not the first discovery dispute to arise in this case. In October 2018, Plaintiff filed a motion to compel the production of certain documents and emails. After the Court granted the motion, Defendants still failed to properly search for documents and gave contradictory explanations for missing documents. This provoked extensive motion practice including various motions for sanctions and fees. These discovery disputes have also resulted in the numerous extensions of the discovery deadline.

Now it appears that an additional discovery dispute has emerged between the parties. On September 14, 2020, Plaintiff filed the instant Motion to Compel and Motion for Sanctions. Plaintiff argues that Defendant has intentionally delayed the depositions of Defendant Hamstra and witness Tammy Overby and requests that the Court compel their depositions and impose sanctions for Defendants’ failure to adhere to the discovery deadline. Defendants assert that they have never refused to present Hamstra or Overby and do not object to the depositions, but request an extension of the discovery deadline until November 15, 2020 to conduct the depositions.

II. Analysis

A. Deposition of Tammy Overby

In Plaintiff's reply, Plaintiff withdraws the request to compel Defendants to produce Overby; therefore, Plaintiff's request to compel the deposition of Tammy Overby is moot.

B. Redeposition of Wilbert Hamstra

According to Plaintiff's Motion, the parties conducted the first deposition of Hamstra on January 17, 2020. Plaintiffs states that Defendants submitted an errata sheet over a month later which substantively changed 18 of Hamstra's answers. As a result, Plaintiff sought to redepose Hamstra.

Plaintiff contends that it called Defendants in June 2020 to coordinate the redeposition of Hamstra. Plaintiff states that, after extension of the discovery deadline, the Defendants proposed to conduct the redeposition on August 13, 2020, within the discovery deadline. Plaintiff argues that Defendants did not respond to their email confirming August 13, 2020 as the deposition date, but instead emailed Plaintiff on August 10, 2020, stating that they would need to extend the discovery deadline from August 25, 2020, in order to complete discovery. According to Plaintiff, the parties have since been unable to schedule the redeposition of Hamstra despite numerous emails and phone calls.

In their response, Defendants’ counsel represents that he was unable to access his office and so was unable to communicate with Plaintiff's counsel between August 24 through August 28, 2020. According to Defendants, Defendants’ counsel contacted Plaintiff's counsel after the filing of the Motion to Compel on August 31, 2020, but the parties remain unable to agree on a date for Hamstra's redeposition. Defendants also request an extension of the discovery deadline through November 15, 2020.

*2 While requiring a person to submit to more than one deposition is generally disfavored, the Federal Rules of Civil Procedure contemplate that a person might need to be deposed more than once. See Fed. R. Civ. P. 30(a)(2)(B). Courts have held that a party seeking a second deposition must make a showing that “good cause” exists for permitting the second deposition. See Perry v. Kelly-Springfield Tire Co., 117 F.R.D. 425, 426 (N.D. Ind. 1987). In assessing whether good cause exists, Rule 26(b)(2) provides that discovery shall be limited if the Court determines that:

Fed. R. Civ. P. 26(b)(2).

Upon review, it appears that the errata sheet submitted after Hamstra's first deposition substantively changed 18 answers. As Plaintiff accurately states, this is an inappropriate use of an errata sheet. Federal Rule of Civil Procedure 30(e)(1) provides that a “deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which: (A) to review the transcript or recording; and (B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.” The Seventh Circuit Court of Appeals has made clear that “change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not.’ ” Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000). The Court also notes that there appears to be no objection by Defendants to the redeposition of Hamstra. Accordingly, it is appropriate for Plaintiff to redepose Hamstra.

Northern District of Indiana Local Rule 30-1 requires attorneys to “try in good faith to schedule depositions to avoid calendar conflicts” and to “schedule depositions with at least 14-days’ notice, unless opposing counsel agrees to shorter notice or the court orders otherwise.” N.D. Ind. L.R., 30-1, see also Fed. R. Civ. P. 30(b)(1). On July 28, 2020, Plaintiff confirmed the redeposition of Wilber to occur on August 13, 2020, thus providing adequate notice to Defendants. Plaintiff chose from among the dates provided by Defendants, scheduling the redeposition to avoid calendar conflicts. Plaintiff appears to have fully complied with the applicable standards for scheduling Hamstra's deposition, but Defendants provided no reason for their cancelation of the August 13, 2020 date.

Nevertheless, Plaintiff made continued efforts to reschedule the deposition, but Defendants did not provide dates within the discovery deadline. While Defendants’ counsel cited numerous court appearances and trial dates as the reason for the scheduling difficulties, the Court notes that the original deposition of Hamstra took only one and a half hours. Additionally, while Defendants argue that Hamstra lives in Florida and his travel is limited due to his age and COVID-19 concerns, Plaintiff offered to conduct the deposition by remote means. A second deposition of Wilbert Hamstra is appropriate, and Defendants have given no reason why it cannot proceed, so they are ordered to produce him for redeposition by October 9, 2020, and to coordinate a date and time with Plaintiff.

C. Plaintiff's Motion for Sanction

*3 Plaintiff moves for sanctions under Federal Rule of Civil Procedure 16(f)(1), stating that Defendants have violated the Court's order by refusing to produce Hamstra within the discovery deadline. While the Court acknowledges the untimely cancellation of Wilbert's deposition by Defendants’ counsel, it does not appear that Defendants violated any court order. Importantly, Defendants conferred with Plaintiffs in an attempt to extend the discovery deadline to accommodate for the deposition of Hamstra. Therefore, the Court will deny Plaintiff's request for sanctions under Rule 16.

D. Defendants’ Request to Extend the Discovery Deadline

In Defendants’ response, they request an extension of the discovery period through November 15, 2020, in order to depose their remaining witnesses. However, pursuant to Local Rule 7-1(a), motions must be filed separately. N.D. Ind. L.R. 7-1(a). As Defendants have failed to file a separate motion for an extension of the discovery deadline, the Court declines to rule on Defendants’ request. Nevertheless, because the Court finds that the redeposition of Wilbert Hamstra is appropriate, the Court will extend the discovery deadline for the sole purpose of redeposing Hamstra. No additional discovery beyond this redeposition is permitted.

III. Conclusion

For the foregoing reasons, the Court hereby GRANTS in part and DENIES as moot in part Plaintiff GJMS LLC's Motion to Compel Depositions and Motion for Sanctions [DE 87]. The Court GRANTS Plaintiff's request to compel the redeposition of Wilbert Hamstra, ORDERS the parties to conduct the redeposition by October 9, 2020, and DENIES as moot Plaintiff's request to compel the deposition of Tammy Overby. As the Court has granted the Motion to Compel Wilbert Hamstra, the Court EXTENDS the discovery deadline until October 9, 2020 for the sole purpose of redeposing Wilbert Hamstra.

Because the Motion to Compel is granted, “the court must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion ... to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(B). Accordingly, the Court ORDERS Plaintiff to file, on or before October 9, 2020, an itemization of its costs and fees incurred in making the motion to compel, with Defendants to respond on or before October 23, 2020, and Plaintiff to file a reply, if any, on or before October 30, 2020.

SO ORDERED this 29th day of September, 2020.