*1 This case involves a December 31, 2017, bus accident on Interstate 70 in Emory County, Utah.[2] At the time of the accident, Defendant Charles Saunders (“Mr. Saunders”) was operating a bus owned by Defendant Greyhound Lines, Inc. (“Greyhound”).[3] Plaintiff Clemente Velazquez (“Mr. Velazquez”) was a passenger on the bus who was injured in the accident.[4]

On July 15, 2019, Plaintiff filed his initial complaint asserting causes of action against Mr. Saunders and Greyhound for negligence, reckless and wanton disregard for public safety and respondeat superior.[5]

On January 22, 2020, the court granted Plaintiff's Motion to Amend,[6] allowing Mr. Velazquez to add his wife, Maria de Jesus Velazquez (“Ms. Velazquez”), as a named plaintiff along with her claim for loss of consortium.[7] In addition, Defendant FirstGroup America (“FirstGroup”) was added as a Defendant along with a claim for respondeat superior.[8]

The following motions are currently pending before this court: (1) Plaintiffs’ Motion to Strike Defendants’ Answers,[9] (2) Plaintiffs’ Second Motion to Compel,[10] (3) Plaintiffs’ Motion to Strike Defendant Greyhound's Eighth Supplement to its Initial Disclosures and Defendant FirstGroup's First Supplement to its Initial Disclosure,[11] (4) Plaintiffs’ Third Motion to Compel,[12] (5) Plaintiffs’ Motion For Conditions for Rule 35 Examination,[13] (6) Defendant Saunders’ Motion For Protective Order,[14] (7) Plaintiffs’ Motion to Disqualify Counsel,[15] (8) Plaintiffs’ Fourth Motion to Compel,[16] (9) Plaintiffs’ Motion for Extension of Fact Discovery Deadline,[17] (10) Plaintiffs’ Fifth Motion to Compel[18] and (11) Plaintiffs’ Motion for Extension of Expert Disclosure Deadline.[19]

A cursory review of the docket reveals that the court has been inundated with discovery motions. Specifically, from June 3 through July 9 2020, thirteen (13) separate discovery motions were filed: eleven (11) by Plaintiffs and three (3) by Defendants.[20] While the court appreciates this case's significance, the volume and frequency of submissions are strikingly disproportionate to that of other matters and finite judicial resources require a deceleration of this meteoric pace. As a result, the court imposes the following heightened meet and confer requirements.

*2 From here forward the court will not consider any discovery motions that do not contain a written, good faith certification signed by both counsel. The certification must include the date, time and place of the meet and confer, the names of all participating attorneys as well as all “reasonable effort[s made] to reach agreement with opposing counsel on the matters set forth in the motion.”[21] In short, the attachment of vexatious and nettled email correspondence will no longer supplant good faith meet and confer requirements.

A meaningful meet-and-confer is more than just a formality and, in this case, the parties’ failure to effectively do so is evidenced through the filing of serial motions.[22] The parties should bear in mind that when interacting with opposing counsel they must:

Of note, any recalcitrance or failure to engage in meaningful efforts by either side will not be viewed favorably and taken into account when considering the motion's viability[24] as well as a request for attorney fees and costs.[25]

These heightened meet and confer requirements specifically apply to Plaintiffs’ Motion to Compel Defendant's Medical Records,[26] Plaintiffs’ Motion to Amend Complaint,[27] Plaintiffs’ Motion for Hearing Re: Spoliation[28] and Plaintiffs’ Motion to Disclose Exhibits,[29] as well as any future discovery related matters.

“The district court has broad discretion over the control of discovery and the [Tenth Circuit] will not set aside discovery rulings absent an abuse of discretion.”[30]

Federal Rule of Civil Procedure 26 sets forth parameters for discovery and requires both relevance and proportionality. Specifically, the rule provides:

In circumstances where a party withholds otherwise discoverable information under a claim of privilege, that party must provide a privilege log describing the withheld documents or communications “in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”[32]

1. Plaintiffs’ Motion to Strike Defendants’ Answer[33]

*3 On October 14, 2019, Greyhound file a Disclosure Statement stating “Greyhound Lines, Inc. is owned by FirstGroup America.”[34] Thereafter, Mr. Velazquez was granted leave to amend to add FirstGroup America as a named Defendant.[35] On May 29, 2020, Greyhound filed an Amended Disclosure Statement naming six additional owner corporations between itself and FirstGroup and re-designating “FirstGroup America to FirstGroup America, Inc.”[36]

Plaintiffs now assert that it “strains credulity”[37] to believe that Greyhound was not aware of the additional owner entities when it filed its initial Disclosure Statement and ask the court to: (1) strike Defendants’ Answers and enter default judgment against Defendants and all additional corporate entities listed in the Amended Disclosure Statement; (2) strike Greyhound's Amended Disclosure Statement and ascribe all “assets and control of the six intervening and belatedly disclosed corporations” to “Defendant FirstGroup America or FirstGroup America, Inc.”; or (3) increase the number of depositions allowed and extend the time for amendment through December 3, 2020.[38]

Under Rule 12(f), the court may order “any redundant, immaterial, impertinent, or scandalous matter” be stricken.[39] When moving to strike, a party should identify how the material is “so unrelated to the plaintiff's claims as to be unworthy of consideration and [ ] prejudicial to the moving party.”[40] Here, there is no claim that the filings are redundant, immaterial, unrelated or unworthy of consideration and Plaintiffs fail to meet their burden.[41]

Also fatal to their motion, is Plaintiffs attempt to strike based on an alleged violation of Rule 7.1.[42] Rule 7.1 does not provide a basis to strike pleadings.[43] Instead, the rule requires any nongovernmental corporate party to disclose “any parent corporation and any publicly held corporation owning ten (10) percent or more of its stock.”[44] The purpose of the rule is “to aid judges in making informed disqualification decisions under the financial interest standard of Canon 3(C)(1)(c) of the Code of Conduct for United States Judges” and the requirement “serves no purposes with respect to the merits of the case.”[45] Further, to the extent Plaintiffs assert “significant” prejudice stemming from an inability to conduct discovery on the entities identified in the Amended Disclosure, the proper avenue to address those concerns is through a motion to amend the scheduling order and not a motion to strike.[46] Accordingly, Plaintiffs’ motion to strike is denied.

2. Plaintiffs’ Second Motion to Compel[47]

*4 On April 6, 2020, Plaintiffs served Greyhound with their Second Set of Interrogatories and Requests for Production.[48] Greyhound objected to many of the requests[49] and provided a log related to any discovery withheld under a claim of privilege.[50] Later, Greyhound supplemented its discovery responses[51] and provided an updated privilege log.[52] On June 4, 2020, Plaintiffs filed a short-form motion to compel[53] and, given the number of discovery requests in dispute, the court ordered full briefing.[54]

Plaintiffs move to compel Greyhound's responses to Interrogatories 3, 17, 21, 26, 28, 29, 30, 37, 40, 41 and 42 and to Requests for Production 13, 27, 28, 29 and 30.[55] Each discovery request is addressed herein.

Interrogatory 3:

Defendants object to Plaintiffs’ Interrogatory 3, arguing the request is overbroad and seeks information that is neither relevant nor proportional to the needs of this case.[56] Indeed, as written, it is unclear how Plaintiffs’ request for information regarding any and every law suit that Greyhound has been involved in over the past ten years is relevant or proportional to the needs of this case and Plaintiffs’ motion to compel Interrogatory 3 is denied.

Interrogatory 21:

Interrogatory 21 seeks all statements taken from any witness concerning the subject accident. In their Supplemental Responses, Defendants indicate that they have “not taken any written or recorded statement from any witness concerning the Subject Incident.”[57] As a result, Interrogatory 21 has been answered and Plaintiffs’ motion to compel is denied.

Interrogatory 26:

*5 Interrogatory 26 seeks information regarding any statements, oral or written, “ever made” by Defendant Saunders. Under Rule 26, only non privileged information is discoverable and Defendants assert they have provided all non attorney client privileged information and documents associated with this request.[58] Further, as part of their Supplemental Response, Defendants specifically identify two responsive, written statements made regarding the subject incident.[59] Accordingly, Plaintiffs’ motion to compel Interrogatory 26 is denied.

Interrogatory 28:[60]

Plaintiffs’ Interrogatory 28 seeks, among other things, test, inspections, measurements, and investigations performed by Greyhound and its representatives regarding the subject accident. Defendants indicate provided all available information, including communications between Defendants and any governmental entity investigating the subject accident, except for information: (i) identified in the privilege log; (ii) taken as part of liability attorney Brandon Wright's (“Mr. Wright”) investigation of the accident;[61] and (iii) that is not yet due under the parties’ scheduling order.[62]

Expert designations are not due until November 18, 2020, after which Defendants’ experts’ investigations and reports will be produced.[63] In turn, Defendants characterize Mr. Wright's investigation of the accident as protected work product because it was taken in anticipation of litigation and not prepared as part of the ordinary course of business.[64] Mr. Wright is an attorney for Greyhound who appeared at the accident site to observe, provide legal support and investigate.[65] Plaintiffs do not challenge Defendants’ claims that the investigation was not conducted in the ordinary course of business or “was directed by Greyhound's national liability attorney for the purpose of preparing Greyhound for imminent litigation.”[66] As a result, Plaintiffs’ motion to compel Interrogatory 28 is denied.

Interrogatory 29:

*6 Plaintiffs’ Interrogatory 29 seeks, among other things, all tangible documentary evidence depicting the scene of the accident and vehicles involved. Defendants indicate they provided all available information, except for information: (i) identified in the privilege log; (ii) taken as part of liability attorney Brandon Wright's (“Mr. Wright”) investigation of the accident;[67] and (iii) that is not yet due under the scheduling order.

Under the parties’ scheduling order, expert designations are not due until November 18, 2020, and the experts’ documents, depicting the scene of the accident and vehicles involved, will be produced thereafter.[68] Defendants contend that a video taken at the scene of the accident by Mr. Wright is protected and designate it as attorney work product.[69] Plaintiffs do not challenge the video's designation as part of Defendants’ Supplemental Privilege Log or dispute that the video was taken in anticipation of litigation and not prepared in the ordinary course of business. As a result, Plaintiffs’ motion to compel Interrogatory 29 is denied.

Interrogatory 30:

Interrogatory 30 requests, among other things, information about pre-existing conditions and causations as well as a list of Defendants’ experts, and the experts’ opinions and reports. Excluding any responsive information to be obtained at depositions not yet taken, Defendants indicate that they provided Plaintiffs with all responsive information that is not privileged or due under the scheduling order.

Under the parties’ scheduling order, expert designations are not due until November 18, 2020 and any expert opinions will be produced thereafter.[70] Accordingly, Plaintiffs’ motion to compel Interrogatory 30 is denied.

Interrogatory 37:

Interrogatory 37 seeks information regarding all violations of the Federal Motor Carrier Safety Regulations assessed against Greyhound from 2016 through 2018. Defendants indicate there is no motor-vehicle safety violation associated with this case. In addition, the Federal Motor Carrier Safety Regulations are extensive (noise admission standards, registration standards, passenger/carrier regulations) and without limitation as to what type of violation Plaintiffs seeks, the request is overly broad, offers questionable relevance and not proportionate to the needs of this case. As written, Plaintiffs’ motion to compel Interrogatory 37 is denied.

Interrogatory 40:

Interrogatory 40 seeks identification of all documents Defendants intend to use at trial. Defendants provided information on witnesses and documents as part of their initial and supplemental disclosures.[71] Further, pretrial disclosures, specifically identifying witnesses and documents intended for trial, are not due until thirty (30) days before trial, or as set by the court.[72] As a result Interrogatory 40 is denied as premature. Defendants will not know until after the close of discovery what documents and witness they intend to use at trial.

*7 Interrogatory 41:

Plaintiffs’ Interrogatory 41 seeks the identity of every expert witness Defendants intend to call at trial. Defendants previously provided Plaintiffs with information on witnesses and documents as part of their initial and supplemental disclosures.[73] Under the parties’ scheduling order, Defendants’ expert designations are not due until November 18, 2020, and the identity of experts who Defendants intend to call as a witness will be produced at that time.[74] Accordingly, Plaintiffs’ Interrogatory 41 is denied as premature

Interrogatory 42:

Plaintiffs’ motion to compel Interrogatory 42, seeking the identity of every witness Defendants intend to call at trial, is denied as premature. Defendants provided information on witnesses as part of their initial and supplemental disclosures.[75] Pretrial disclosures, however, are not due until thirty (30) days before trial, or as set by the court and Defendants will not know until after the close of discovery what witness they will call at trial.[76]

Request For Production 13:

Request for Production 13 seeks statements from “any person” related to the accident. Defendants, to the best of their ability, have provided all non-privileged documents associated with this request.[77] And, while counsel would typically provide a privilege log including any responsive documents and communications, the scope of the request, as written, prohibits counsel from doing so. Indeed, the creation and maintenance of an on-going log containing each and every statement made, or note taken, between client and counsel is impractical and unduly burdensome.[78] Accordingly, Plaintiffs’ Request for Production 13 is denied.

Request For Production 17:

*8 Plaintiffs’ Request for Production 17 seeks, among other things, diagrams and reports depicting the accident. Defendants provided Plaintiffs with all available responsive information except for information: (i) identified in the privilege log; (ii) taken as part of liability attorney Brandon Wright's (“Mr. Wright”) investigation of the accident;[79] and (iii) that is not yet due under the scheduling order.[80]

Defendants’ expert designations are not due until November 18, 2020, with expert diagrams and reports due thereafter.[81] Further, Defendants contend that a video taken by Mr. Wright at the scene of the accident is protected and designated it as attorney work product.[82] Plaintiffs do not challenge the video's designation or dispute that was taken by Mr. Wright in anticipation of litigation and not prepared in the ordinary course of business. As a result, Plaintiffs’ motion to compel Request for Production 17 is denied.

Request For Production 27:

Request For Production 27 seeks every moving violation involving Greyhound from 2017 to 2018. Given the number of motor vehicles owned by Greyhound as part of its national operations, as written, it is unclear how Plaintiffs’ request is relevant or proportional to the needs of this case and Plaintiffs’ motion to compel Request for Production 27 is denied.

Request For Production 29:

Plaintiffs’ Request for Production 29 seeks, among other things, all “evidence of any type which may possibly have relevance to the facts of this case.” On its face, this request is overly broad and contrary to Rule 34 which requires that a party requesting documents do so with “reasonable particularity.”[83] Accordingly, as written, Plaintiffs’ motion to compel Request for Production 29 is denied.

Request for Production 30:

Plaintiffs’ Request for Production 30 seeks a list of Defendants’ experts, expert opinions and reports. Under the parties’ scheduling order, expert designations are not due until November 18, 2020 and Defendant will designate their experts at that time.[84] Accordingly, Plaintiffs’ Request for Production 30 is denied as premature.

*9 For the reasons set forth above, Plaintiffs’ Second Motion to Compel is denied in its entirety.[85]

3. Plaintiffs’ Motion To Strike Greyhound's Eighth Supplement to its Initial Disclosures and FirstGroup's First Supplement to its Initial Disclosures[86]

Under the Scheduling Order initial disclosures were due October 7, 2019, with Supplemental Disclosures due on June 3, 2020.[87] On June 3, 2020, Greyhound provided its Eighth, and FirstGroup provided its First, Supplemental Disclosures (“Supplemental Disclosures”).[88] The Supplemental Disclosures designate five current and former employees of the Defendant as witnesses: Mr. Jorge Ballinas, former Greyhound City Manager, Las Vegas, Nevada; Mr. Gary VanEtten, former Greyhound Safety Manager and current Manager of Regulatory and Accident Compliance; Mr. Milan Obradobic, Greyhound Manager Salt Lake City, Utah; Mr. Brian Davis, former Greyhound supervisor for its Maintenance Response Desk and Mr. Manuel Juarez, Greyhound's Las Vegas, Nevada Supervisor.[89]

Plaintiffs contend Defendants “attempt to game the system” by purposefully failing to identify these witnesses as part of their initial disclosures in order to prevent Plaintiffs from incorporating the disclosures into Greyhound's 30(b)(6) deposition. As a result, pursuant to Federal Rules 30 and 37, Plaintiffs move to: (i) strike Greyhound's Eighth Supplement to its Initial Disclosures; (ii) strike FirstGroup's First Supplement to its Initial disclosures; and (iii) prohibit the newly identified Greyhound employees from testifying.

As an initial matter, Rule 37 does not provide a mechanism to strike a party's Rule 26(e) disclosures. Rather, the rule provides the court with discretion to preclude a party from presenting information or evidence on a motion or at trial if that party has not provided evidence required by Rule 26(a) or 26(e). Specifically, Rule 37 states:

Thus, Rule 37(c)(1) only applies if there is a violation of Rule 26(a) or (e). Rule 26(a) requires parties to disclose “individuals likely to have discoverable information--- along with the subjects of that information---that the party may use to support its claims or defenses.”[91] Rule 26(e), on the other hand, requires parties to supplement their disclosures: “(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the Court.”[92]

*10 Here there is no violation of Rule 26(e) because Defendants filed their Supplemental Disclosures by the June 3, 2020 deadline.[93] Additionally, despite what Plaintiffs’ characterize as a purposeful attempt not to disclose information in its possession, Defendants assert that it was not until after Greyhound's 30(b)(6) deposition and after responding to Plaintiffs’ Second Set of Discovery Requests that they decided to use the identified individuals as witnesses. This is consistent with Rule 26 under which a party is “not obligated to disclose witnesses or documents, whether favorable or unfavorable that it does not intend to use.”[94] As the case progresses, however, and as Defendants have done so here, a party must “supplement its disclosures when it determines that it may use a witness or a document that it did not previously intend to use.”[95]

In the alternative, even assuming a violation of Rule 26(e), any violation was justified or harmless. In determining whether a failure to comply is justified or harmless, courts consider the following factors “(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness.”[96] Here, collective testimony from Mr. Ballinas and Mr. Juarez stating that Mr. Saunders did not contact Greyhound to request a replacement driver is consistent with previously produced bus call logs and cell phone records showing the same.[97] Further, prior to deposition, Plaintiffs were aware of documents indicating that law enforcement had communicated with Mr. VanEtten and Mr. Davis, and it is unclear what prejudice Plaintiffs incur through disclosure of Mr. Obradobic's testimony regarding post-accident lodging and transportation.[98] Moreover, there is no indication that Defendants acted in bad faith and the Supplemental Disclosures reflect information that was produced or supplemented based on Defendants’ responses to Plaintiffs’ discovery and the testimony provided at Greyhound's 30(b)(6) deposition. And, to the extent that Plaintiffs assert a need to depose the identified supplemental witnesses they may still do so or move, for good cause, to amend the scheduling order.

Finally, Plaintiffs cite no authority for the proposition that a court can strike Rule 26(e) disclosures under Rule 30(b)(6). Plaintiffs noticed the following topics for Greyhound's November 21, 2019, 30(b)(6) deposition: (1) details of the vehicular crash complained of in the above styled matter, including passenger information and subsequent investigations by Defendant; (2) Defendant's compliance with Federal Regulations; (3) the hiring, training, and supervision of Charles Saunders; and (4) Defendant's policies regarding drivers.[99] The Notice did not include topics addressing communications from Mr. Saunders to Greyhound, communications law enforcement had with Greyhound, accommodations and transportation of passengers after the accident or the location of evidence, including the M-7 logbooks. Furthermore,

*11 Here, even assuming the court could strike Defendants’ Supplemental Disclosures based on alleged inconsistencies in Greyhound's 30(b)(6) testimony, the Supplemental Disclosures are consistent with the expected testimony of the Supplemental Witnesses.[101]

For these reasons, Plaintiffs’ Motion to Strike Greyhound's Eighth Supplement to its Initial Disclosures and FirstGroup's First Supplement to its Initial Disclosures is denied.[102]

4. Plaintiffs’ Third Motion to Compel[103]

Plaintiffs move to compel a response to their Third Set of Requests for Production of Documents. Defendants object arguing the discovery exceeds the maximum number of requests allowed under the parties scheduling order.[104]

Federal Rule of Civil Procedure 33 states “[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.”[105] While the rule does not specifically address the circumstances under which subparts are counted as separate interrogatories,

See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2168.1, at 261 (2d ed. 1994).[106] Relevant here is the concept that parties “cannot evade [interrogatory limitations] through the device of joining as ‘subparts’ questions that seek information about discrete separate subjects.”[107] And, determining which subparts constitute discrete questions is a “case-specific assessment” that is not reducible to a “crisp verbal formula.”[108]

*12 As set forth in the Scheduling Order, the parties’ stipulated to a maximum of 50 interrogatories and 50 requests for admission.[109] Upon review, Plaintiffs’ Requests for Production 7, 16, 18, 21, and 25 include subparts that are not logically subsumed by, and do not necessarily relate to, the primary underlying question.[110] Indeed, each subpart involves “a discrete or separate question of fact and, therefore, each subpart must be treated as a separate interrogatory.”[111] For example, the subparts of Request for Production 7 seek the production of documents as varied as Mr. Saunders’ personnel record, a post-trip inspection report of the period of time immediately after the accident, the company's record of time worked each day by Mr. Saunders and a copy of the last mechanical inspection report prior to the accident.[112] Similarly, Request for Production 21 seeks items as unrelated as Alan Smith's curriculum vitae, reports of conversations between Mr. Newell and Mr. Saunders, records of Mr. Saunders’ calls to Greyhound, a training video about the dangers of driving while drowsy and a list of the closest available Greyhound drivers and their locations on the night of the accident.[113] These subparts fail to contain a common theme and delve into discrete and unrelated issues. As a result, to the extent that inclusion of the identified discovery subparts places Plaintiffs over the production limits identified in the parties’ scheduling order, Plaintiffs’ Third Motion to Compel is denied.[114]

5. Plaintiffs’ Motion for Conditions For Rule 35 Examination[115]

Pursuant to Federal Rule of Civil Procedure 35, the court may order a party “whose mental or physical condition ... is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.”[116] When determining the scope of a Rule 35 examination, the court must “balance the desire to insure the safety and freedom from pain of the party to be examined against the need for the facts in the interest of truth and justice.”[117]

On June 16, 2020, the court granted Defendants’ motion to conduct a Rule 35 examination of Mr. Velazquez.[118] Plaintiffs now ask the court to impose specific restrictions on “the time, place, manner, conditions and scope” of Mr. Velazquez's examination with Adam Schwebach, Ph.D (“Dr. Schwebach”).[119] Upon review, the court concludes as follows.

1. Condition 1: Defendants do not challenge Plaintiffs’ request that a third party be allowed to video record the examination. Accordingly, this condition is granted. The video recording may not, however, interfere with the examination itself and must be conducted by a neutral third party.[120]

2. Condition 2: requesting that the examining doctor not be allowed to “use any copyrighted material, or [be required to] obtain permission for said use and the videotaping of the use of said material” is denied. Rule 35 neuropsychological examinations include a battery of tests, many of which are copyrighted. Defendants indicate the examinations cannot be performed without these testing materials and a condition prohibiting the use of copyrighted materials, unless Defendants can obtain permission to video them, is unnecessary and unduly interferes with the examination.

3. Condition 3: asking that the order of examination not constitute a waiver of Plaintiffs’ right to challenge the examining doctor's qualifications, methodology, opinions or testimony is not disputed and granted.

4. Condition 4: requesting that ten days before the exam, Defendants provide a written statement setting forth the manner, condition and scope, is granted. Consistent therewith, Defendants have provided an email from Dr. Schwebach setting forth the requested information.[121]

*13 5. Condition 5: requesting that any paperwork to be filled out before the exam be delivered to Plaintiff at least ten days prior to the exam is unopposed and granted. Defendants, however, indicate that there is no paperwork to be filled out ahead of time and all paperwork that is necessary shall be completed in the office at the time of the examination.

6. Condition 6: requesting all documents that the Defendants forwarded to Dr. Schwebach be provided to Plaintiffs ten days prior to the exam is denied. This request goes beyond the time, place, manner, condition and scope requirements of Rule 35. Defendants will make any required expert disclosures pursuant to Rule 26 and the parties’ Scheduling Order.[122]

7. Condition 7: asking that Dr. Schwebach be prohibited from instructing Mr. Velazquez to go to another clinic for any other diagnostic test is not opposed and granted with the understanding that the examining doctor may recommend future diagnostic tests.

8. Condition 8: requiring Plaintiffs, within fourteen days after the examination is completed, to provide: Dr. Schwebach's report, a copy of any correspondence between Defendants and Dr. Schwebach and a copy of any document evidencing the amount of Dr. Schwebach's compensation, is granted in part. Plaintiffs’ condition goes beyond that which is required under Rule 35 and correspondence with defense experts is privileged unless the correspondence concerns compensation, identifies facts or data provided to the expert or identifies assumptions provided to the expert.[123] Defendants shall provide expert disclosures pursuant to Rule 26 and will provide a copy of Dr. Schwebach's report as soon as possible. Defendants assert they will make all efforts to do provide the report within fourteen (14), but no more than thirty (30), business days after the examination.

9. Condition 9: seeking an order of the court declaring that at trial Dr. Schwebach may not be referred to as an independent or court appointed expert in front of the jury is denied. This condition is premature and more properly addressed in the context of a motion in limine.

10. Condition 10: allowing Dr. Schwebach to rely on information contained in Plaintiff's medical records is granted.

For these reasons, Plaintiffs’ motion for conditions is granted in part and denied in part. Conditions 3, 4, 5, 7 and 10 are granted, Conditions 2, 6 and 9 are denied and Conditions 1 and 8 are granted in part.

6. Defendant Saunders’ Motion For Protective Order.[124]

Defendant Saunders moves for a protective order precluding Plaintiffs from taking his deposition. As a result of the accident, Mr. Saunders asserts he experienced a severe traumatic brain injury, retains no memory of the facts and circumstances related to the incident and suffers from cognitive deficits and impairments that limit his perceptions and affect his ability to testify. Given his limited cognitive capabilities, as established by the neuropsychological forensic evaluation of Dr. Charles Loong (“Dr. Loong”),[125] Mr. Saunders argues that requiring his deposition is prejudicial and will “render his testimony inadmissible, unreliable, and irrelevant.”[126]

*14 Plaintiffs counter, asserting that the issue of whether Mr. Saunders has any memory of the accident is a question of fact for the jury and Dr. Loong's opinion is not determinative.[127] In addition, even assuming that he is unable to remember the accident, Plaintiffs claim Mr. Saunders’ testimony is necessary to establish Greyhound's practices and policies as they relate to their claim for punitive damages.

Federal discovery rules are broadly construed and “full disclosure is of paramount importance.”[128] Yet, discovery is not without limits and Rule 26 authorizes the court to issue a protective order to protect a party from “annoyance, embarrassment, oppression, or undue burden or expenses, including [...] forbidding discovery; [and...] forbidding inquiry into certain matters.”[129] The party moving for a protective order bears the burden of establishing good cause and must identify “a clearly defined and serious injury.”[130] When evaluating good cause, a court should “balance the non-moving party's interest in completing the deposition and preparing for trial against the proffer of harm that would result from the deposition.”[131] Given the broad scope of discovery, any order barring a litigant from taking a deposition is considered an “extraordinary measure[ ] which should be resorted to only in rare occasions.”[132]

Dr. Loong's confidential report establishes that Mr. Saunders’ cognitive abilities are impaired such that he lacks the ability to testify in a “meaningful fashion.”[133] Indeed, the report details Mr. Saunders’ functioning and specifically identifies how his functional deficits affect his ability to comprehend questions and testify. After consideration, the court finds that balancing the harm in requiring Mr. Saunders to testify with Plaintiffs’ significant interest in preparing for trial weighs in favor of issuing of a protective order. This conclusion is bolstered by the fact that liability is not at issue and it is undisputed that Mr. Saunders was driving at the time of the accident. As a result, Mr. Saunders’ testimony is not necessary for Plaintiffs to establish their negligence claims. In turn, to the extent that Plaintiffs seek Mr. Saunders’ testimony as support for their claim for punitive damages, Plaintiffs may obtain information related to Greyhound's driving policies and procedures from other bus drivers or from Greyhound itself.

*15 Mr. Saunders provides evidence of actual cognitive impairment constituting good cause for the issuance of a protective order. Accordingly, Defendant's motion for protective order is granted and Plaintiffs’ request for attorney fees is denied.

7. Plaintiffs’ Motion To Disqualify[134]

Plaintiff Clemente Velazquez filed his initial complaint against Defendants Saunders and Greyhound on July 15, 2019.[135] Later, Mr. Velazquez was granted leave and Plaintiff's amended complaint, adding Plaintiff Maria De Jesus Velazquez and Defendant First Group America, was filed on January 22, 2020.[136] On March 9, 2020, attorneys Scott T. Evans and Stephen D. Kelson of Christensen & Jensen, P.C. (“C&J”) filed an Amended Answer on behalf of Greyhound, Mr. Saunders and FirstGroup.[137]

On April 22, 2020, attorney Rafael A. Seminario of Richards Brandt Miller Nelson (“Richards Brandt”) entered a Notice of Appearance for Defendant Charles Saunders[138] and on April 30, 2020, C&J formally withdrew as Mr. Saunders’ counsel.[139] On May 6, 2020, D. Lee Roberts, Jr. of the Las Vegas, Nevada firm of Weinberg Wheeler Hudgins Gunn & Dial (“Weinberg Wheeler”) was granted pro hac vice admission to appear on behalf of Mr. Saunders.[140] On May 28, 2020 Daniela LaBounty also entered her notice of appearance on Mr. Saunders’ behalf.[141]

On June 17, 2020 Plaintiffs filed their pending motion to disqualify C&J, Richards Brandt and Weinberg Wheeler (collectively “Law Firms”) claiming “irreparable and unsavable conflicts of interest” in violation of Rule 1.7 of the Utah Rules of Professional Conduct.[142]

Disqualification is a “drastic measure that should only rarely be granted”[143] and the party seeking to remove counsel “bears the burden of establishing facts that warrant disqualification.”[144] Each case must be examined “on its own specific facts” and “the essential issue to be determined ... is whether the alleged misconduct taints the lawsuit.”[145] When presented with a motion to disqualify, a court must consider “both the local rules of the court in which the attorney appears and the ‘standards developed under federal law.’ ”[146] The Federal District Court of Utah adopts the Utah Rules of Professional Conduct.[147]

*16 As a threshold matter, Law Firms assert that a party must have standing to bring a motion to disqualify absent which the burden of disqualification cannot be met.[148] Here, none of the Law Firms have represented Plaintiffs and, as a result, they contend that Plaintiffs lack standing to disqualify Law Firms from representing Mr. Saunders. While Plaintiffs should not be allowed to seek disqualification based simply upon their disagreement with Law Firms’ litigation strategies, the court need not reach the standing issue here as Plaintiffs fail to state an underlying violation of the rules.[149]

Plaintiffs assert C&J should be disqualified from representing Greyhound under Utah Rule of Professional Conduct Rule 7.1 because C&J previously represented both Greyhound and Mr. Saunders in this litigation and the two defendants’ positions were materially adverse or likely to become materially adverse.

Rule 1.7 of the Utah Rules of Professional Conduct provides that a concurrent conflict exists if the representation of one client is directly adverse to another or there is a significant risk that the representation of one client will materially limit its responsibilities to another client. Specifically, the Rule states:

Upon review, the court concludes that Rule 1.7 is not applicable since it governs conflicts of interest among current clients, and Mr. Saunders is not a current client of C&J. Rather, it is Rule 1.9 of the Utah Rules of Professional Conduct that governs conflicts and duties owed to former clients stating:[151]

Assuming standing and considering the language of Rule 1.7 and 1.9, Plaintiffs provide no evidence of direct or material adversity that would support disqualification. Plaintiffs’ claim that Greyhound and Mr. Saunders could hypothetically take different positions regarding knowledge of Mr. Saunders’ alleged illness is too speculative. In addition, Plaintiffs fail to identify any facts showing that Greyhound and Mr. Saunders’ positions, as to punitive damages or any other matter at issue, are adverse or that there is a significant risk that their positions will become adverse. To the contrary, both Greyhound and Mr. Saunders have accepted liability for the accident,[153] and both jointly answered Plaintiffs’ amended complaint asserting that Mr. Saunders was not unfit to drive on the day of the accident.[154] While it is Plaintiffs’ position that Mr. Saunders knew he was unfit but Greyhound ordered him to drive anyway, Defendants’ theory is not, and at this juncture there is no indication that it will be, the position of either Mr. Saunders or Greyhound.

*17 Next, Plaintiffs assert that difficulties in scheduling Mr. Saunders’ deposition, an email from C&J indicating Mr. Saunders was being assigned new counsel, and a plan to prevent Mr. Saunders from testifying at trial all establish a conflict of interest. But again, these arguments are speculative and impute motives that lack an adequate factual basis. As it stands, there is no indication that Mr. Saunders intends to change his position in the case. And, even assuming a conflict did arise, Plaintiffs could re-address their concerns or Mr. Saunders and Greyhound could consent to a waiver.[155]

Accordingly, Plaintiffs’ motion to disqualify C&J as counsel is denied.

Plaintiffs also move to disqualify the law firms of Richards Brandt and Weinberg Wheeler under Utah Rule of Professional Conduct 1.7, 1.8 and 5.4. Yet, assuming standing, Plaintiffs fail to provide any legal or factual basis to meet their disqualification burden.[156]

First, Richards Brandt and Weinberg Wheeler have only represented Mr. Saunders and there is no concurrent conflict of representation as it relates to Greyhound or FirstGroup under Rule 1.7.

Second, Rule 1.8 is inapplicable. In relevant part, Rule 1.8 states:

Here, Mr. Saunders was provided a defense because the accident occurred within the course and scope of his employment with Greyhound. Nothing in Rule 1.8 precludes such representation. Further, Plaintiffs fail to provide any evidence that there has been an interference of Richards Brandt or Weinberg Wheeler's representation of Mr. Saunders as it relates to any insurance provision providing for his defense.

Finally, Plaintiffs fail to state any cognizable basis for disqualification under Rule 5.4 and it is unclear under these circumstances how Rule 5.4 applies. Utah Rule of Professional Conduct Rule 5.4(c) states:

In connection with Rule 5.4, Plaintiffs appear to allege that the existence of an insurance contract that may provide coverage to multiple parties precludes representation of any of those parties, because a single payor cannot provide for such representation. This argument misapplies both the rules and contract law. There is no prohibition against retaining independent and separate counsel to represent the interests of multiple parties entitled to defenses under the terms of an insurance policy. And, while Defendant was provided with a defense under the terms of Greyhound's insurance policy, when a conflict was reported, Mr. Saunders was given a separate and independent adjuster.[159] Currently, Weinberg Wheeler reports to the separate adjuster and Richards Brandt was retained by Weinberg Wheeler to serve as local counsel defending Mr. Saunders. Additionally, even though Weinberg Wheeler reports to the separate adjuster the adjuster “has not directed [Weinberg Wheeler's] strategy decisions and has not interfered, or even attempted to influence, this firm's professional judgment” and Plaintiffs fail to establish a violation of Rule 5.4.[160]

*18 Plaintiffs’ motion to disqualify Richards Brandt and Weinberg Wheeler is denied.

8. Plaintiffs’ Fourth Motion To Compel[161]

Plaintiffs move to compel Greyhound to respond to their Fourth Set of Requests For Production of Documents.[162] For the reasons set forth in the court's ruling on Plaintiffs’ Third Motion to Compel,[163] Plaintiffs’ Fourth Motion to Compel is denied.

As discussed supra, Plaintiffs have propounded questions with multiple discrete subparts that exceed the interrogatory limit set forth in the parties’ scheduling order. Thus, to the extent that inclusion of the identified discovery subparts place Plaintiffs over the production limit, Plaintiffs’ Fourth Motion to Compel is denied.[164]

9. Plaintiffs’ Motion For Extension of Time to Complete Discovery[165]

Mr. Raul Gallardo (“Mr. Gallardo”) tested positive for COVID-19 and was therefore unable to attend his June 26, 2020, deposition.[166] Given the approaching August 3, 2020, discovery deadline, Plaintiffs move for an extension of an additional six (6) months, through February 3, 2021,[167] within which to re-schedule Mr. Gallardo's deposition. Defendants do not oppose the extension itself, but object to the six month time frame as unreasonable and unjustified.[168]

Pursuant to Federal Rule 16(b)(4), a court may modify the scheduling order upon a showing of good cause. Here, Mr. Gallardo's illness supports good cause. The court finds, however, that an additional six months is excessive, and Plaintiffs fail to provide any explanation as to why such a large extension of time would be needed. Accordingly, Plaintiffs motion is granted in part and denied in part. Plaintiffs shall have an additional sixty (60) days from the date of this Order within which to depose Mr. Gallardo.

10. Plaintiffs’ Fifth Motion To Compel[169]

Plaintiffs move to compel Mr. Saunders’ responses to Plaintiffs’ Third Set of Interrogatories and Requests for Production of Documents, seeking information about remaining insurance coverage limits and the amounts of any settlements related to the accident.[170] Upon review, Plaintiffs’ motion is denied. Mr. Saunders is not the policy holder and had no role in negotiating or obtaining insurance coverage. Rather, Mr. Saunders was afforded insurance coverage as an employee of Greyhound and because the accident occurred in the course and scope of his employment. As a result, Mr. Saunders is not the proper party from whom to seek discovery regarding remaining coverage limits or the amounts of any settlements related to the accident.[171]

11. Plaintiffs’ Motion For Extension of Expert Disclosure Deadline[172]

*19 Plaintiffs seek an extension of the September 3, 2020 expert disclosure deadline in order to allow their commercial driving expert to review Mr. Saunders’ deposition prior to submitting his own report. As set forth supra, the court issued a protective order prohibiting Mr. Saunders’ deposition. Given this development, the court denies Plaintiffs’ motion and orders the parties to meet and confer regarding any discovery extensions. If the parties cannot come to an agreement, Plaintiffs may re-file their motion and identify good cause as support for any request for modification of the scheduling order.

For the reasons stated, the court ORDERS as follows:

DATED this 18th day of August, 2020.