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Lane Constr. Corp. v. Skanska USA Civil Se., Inc.

2022 WL 18775750 (M.D. Fla. 2022)

September 7, 2022

Irick, Daniel C., United States Magistrate Judge

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Summary

ESI was not mentioned. The Court heard eight motions from the parties and denied all of them except for the motion to depose Plaintiff's employee, Mr. Gorasso, which was granted in part. The Court ordered the parties to meet-and-confer regarding the deposition dates of Counsel Hennessey, Mr. Gorasso, and Mr. Cavallaro.

Additional Decisions

THE LANE CONSTRUCTION CORPORATION, Plaintiff,
v.
SKANSKA USA CIVIL SOUTHEAST, INC. and SKANSKA INFRASTRUCTURE DEVELOPMENT, INC., Defendants

Case No: 6:21-cv-164-RBD-DCI

United States District Court, M.D. Florida

Filed September 07, 2022

Counsel

Michael S. McNamara, Pro Hac Vice, Brendan J. Hennessey, Pro Hac Vice, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC, Denis L. Durkin, Baker & Hostetler, LLP, Orlando, FL, for Plaintiff.

Irick, Daniel C., United States Magistrate Judge

ORDER

*1 The discovery deadline in this case closed on September 5, 2022. Doc. 117. The parties have been aware of this particular deadline since at least November 30, 2021. Id. As the deadline has crept closer the parties’ filing activity has steadily increased, which has culminated in a flurry of filings in the last two weeks of the discovery period. Before the Court are eight of these motions. The Court held a hearing on these motions on September 7, 2022.

I. Doc. 258

In this motion (Doc. 258), Plaintiff seeks a protective order preventing Defendant Skanska USA Civil Southeast, Inc. (Skanska) from deposing one of Plaintiff's attorneys, Counsel Hennessey. Counsel Hennessey co-authored a PowerPoint presentation and memoranda that were provided to the members of the Joint Venture.[1] Plaintiff provided the memoranda as discovery and stated at the hearing that it may seek to admit at least one of the memoranda as evidence in this case, whether at trial or in relation to dispositive motions. Skanska seeks to depose Counsel Hennessey regarding these memoranda and the PowerPoint presentation. This deposition was properly noticed within the discovery period, and the fact that it must be taken outside the discovery period is simply a result of the resolution of the parties’ dispute.

For the reasons stated at the hearing, this motion (Doc. 258) is due to be denied. The parties shall meet-and-confer regarding Counsel Hennessy's deposition date.

II. Doc. 260

In this motion (Doc. 260), Skanska seeks to compel unredacted discovery responses from WeBuild S.P.A. Inc. (WeBuild). WeBuild responded to one of Skanska's requests for production with redacted documents. However, WeBuild asserts that it only redacted privileged information (which was recorded in a privilege log) and information unrelated to the project at issue and, thus, not responsive to any discovery request. Indeed, when Skanska produced documents to WeBuild, Skanska also redacted information for similar reasons.

For the foregoing reasons, and for the reasons stated at the hearing, this motion (Doc. 260) is due to be denied.

III. Doc. 268

In this motion (Doc. 268), Skanska-Granite-Lane, A Joint Venture (SGL) seeks to depose one of Plaintiff's employees, Mr. Gorasso. SGL asserts that it properly noticed the deposition of Mr. Gorasso on August 8, 2022, with the deposition to commence on August 31, 2022. Doc. 268-1. Plaintiff informed SGL that Mr. Gorasso was not available on August 31, 2022, and Plaintiff provided an alternate date of September 9, 2022—four days after the discovery deadline. SGL seeks to compel Plaintiff to produce Mr. Gorasso for a deposition prior to the September 5, 2022, discovery deadline, which has since passed.

For the reasons stated at the hearing, this motion (Doc. 268) is due to be granted in part. Discovery has closed, so Mr. Gorasso cannot be deposed prior to the discovery deadline. However, SGL may depose Mr. Gorasso after the discovery deadline. This deposition was properly noticed within the discovery period, and the fact that it must be taken outside the discovery period is simply a result of the resolution of the parties’ dispute. The parties shall meet-and-confer regarding Mr. Gorasso's deposition date.

IV. Doc. 270

*2 In this motion (Doc. 270), Plaintiff seeks leave to depose Skanska's former CEO, Mr. Cavallaro. Plaintiff originally requested that Skanska produce Mr. Cavallaro between May 23, 2022 and June 17, 2022. Doc. 270-3. No deposition happened between those dates. Thereafter, on August 9, 2022, Plaintiff unilaterally noticed Mr. Cavallaro for a deposition to occur on August 31, 2022. Doc. 270-4. On August 24, 2022, Skanska informed Plaintiff that Skanska did not employ Mr. Cavallaro and that Skanska had no control over his presence at the scheduled deposition. Doc. 270-6.

Plaintiff and Skanska dispute whether Skanska implied that Mr. Cavallaro was under Skanska's control. Indeed, there was some understandable confusion on the status of Mr. Cavallaro—in Skanska's initial disclosures, Skanska identified Mr. Cavallaro as working for a Skanska-related entity. Thus, Court finds that good cause exists to allow Mr. Cavallaro to be deposed after the discovery deadline. As to Mr. Cavallaro, the Court finds that Plaintiff acted with diligence, and the fact that the deposition must be taken outside the discovery period is a result of reasonable confusion or miscommunication between the parties.

For the foregoing reasons, and for the reasons stated at the hearing, this motion (Doc. 270) is due to be granted. The parties shall meet-and-confer regarding Mr. Cavallaro's deposition date.

V. Doc. 271

This motion (Doc. 271) was replaced by an amended motion (Doc. 273). Accordingly, this motion (Doc. 271) is due to be denied as moot.

VI. Docs. 273 and 274

In Plaintiff's motion (Doc. 273), Plaintiff seeks leave to take two depositions after the discovery deadline. Plaintiff seeks leave to depose Granite Construction Co.’s former CEO, Mr. Roberts, on September 12, 2022—a week after the discovery deadline. Plaintiff began attempting to coordinate a deposition date for Mr. Roberts on August 11, 2022. Doc. 273. Plaintiff and Mr. Roberts’ counsel mutually agreed that Mr. Roberts would be deposed on September 12, 2022. Plaintiff served the deposition subpoena on August 24, 2022, in which Plaintiff noticed the deposition for September 12, 2022.

Plaintiff also seeks leave to depose non-party I-4 Mobility Partners OPCO, LLC (I4MP) on September 7, 2022—two days after the close of discovery. Plaintiff served a deposition subpoena on I4MP on August 18, 2022, in which Plaintiff noticed a deposition for September 1, 2022. Doc. 273-3. I4MP was unavailable on September 1, 2022, but the parties thereafter agreed for the deposition to occur on September 7, 2022. Docs. 273 at 2–3; 274 at 3. After agreeing to be deposed on September 7, 2022, I4MP filed a motion seeking to quash the deposition subpoena as untimely or, in the alternative, seeking a protective order limiting the scope of the deposition. Doc. 274 at 3–4.

Plaintiff asserts that both of these depositions are vital because both parties to be deposed are “important witness[es] in this case.” Doc. 273 at 2. Indeed, Plaintiff listed five witnesses from I4MP and Mr. Roberts in its Rule 26 initial disclosures. However, despite Plaintiff being aware of these witnesses since the beginning of this case, Plaintiff did not seek to depose either witness until the discovery deadline was less than a month away. The Court finds that there has not been a showing of good cause or the necessary diligence to allow either deposition to occur after the discovery deadline. Fed. R. Civ. P. 16(b)(4).

For the foregoing reasons, and for the reasons stated at the hearing, Plaintiff's motion (Doc. 273) is due to be denied. In turn, I4MP's motion (Doc. 274) is due to be denied as moot.

VII. Doc. 275

*3 In this motion (Doc. 275), Plaintiff seeks leave to depose Skanska's expert, Delta Consulting Group (Delta). In accordance with a prior Order (Doc. 242), Skanska disclosed Delta's expert report on August 19, 2022. Ten days later, on August 29, 2022, Plaintiff first inquired if Skanska would make Delta available for deposition on September 8 or 9, 2022. Doc. 275 at 2. Skanska declined to do so because those dates were after the discovery deadline. Id.; Doc. 284 at 2. Skanska also refused to produce Delta on September 5, 2022 (the discovery deadline) because of insufficient notice. Doc. 275 at 2. The Court finds that there has not been a showing of good cause or the required diligence to allow this deposition to occur after the discovery deadline. Fed. R. Civ. P. 16(b)(4).

For the foregoing reasons, and for the reasons stated at the hearing, this motion (Doc. 275) is due to be denied.

VIII. Conclusion

Accordingly, for the foregoing reasons and the reasons stated at the hearing, it is hereby ORDERED as follows:

1) Plaintiff's Motion for Protective Order Relating to Deposition of Brendan Hennessey (Doc. 258) is DENIED;

2) Skanska's Motion to Compel WeBuild's Discovery Response (Doc. 260) is DENIED;
3) SGL's Motion to Compel the Deposition of Michele Gorasso (Doc. 268) is GRANTED in part;
4) Plaintiff's Motion for Leave to Take the Deposition of Richard Cavallaro After the Discovery Cutoff (Doc. 270) is GRANTED;
5) Plaintiff's Motion for Leave to Take Depositions After Discovery Cutoff (Doc. 271) is DENIED as moot;
6) Plaintiff's Amended Motion for Leave to Take Depositions After Discovery Cutoff (Doc. 273) is DENIED;
7) I4MP's Motion for Protective Order and to Quash Subpoena for Deposition (Doc. 274) is DENIED as moot;
8) Plaintiff's Motion to Compel Deposition of Delta Consulting Group (Doc. 275) is DENIED; and
9) The parties shall meet-and-confer regarding the deposition dates of Counsel Hennessey, Mr. Gorasso, and Mr. Cavallaro. On or before September 14, 2022, the parties shall file a joint notice regarding the result of this conferral. If the parties have not agreed on deposition dates, the Court will set a hearing on short notice and resolve any remaining dispute.

ORDERED in Orlando, Florida on September 7, 2022.

Footnotes

[1]

The Joint Venture consisted of Plaintiff, Skanska, and Granite Construction Co.