Jaime Guzman, et al., Plaintiffs, v. Melvin Jones, et al., Defendants CIVIL ACTION NO. L–10–121 Signed May 09, 2012 Counsel Gene Stuart Hagood, Attorney at Law, Alvin, TX, for Plaintiffs. Baldemar Garcia, Jr., Jose I Maldonado, Jr., Person Whitworth Borchers and Morales, Laredo, TX, for Defendants. Hacker, J. Scott, United States Magistrate Judge ORDER *1 Pending before the Court is Plaintiffs' “Opposed Motion to Extend Discovery to Determine if Defendants' Ex Parte Download of the ECM Data was Properly Performed for a Complete Extraction of the Data” (Dkt. No. 55) and “Plaintiffs' Motion for Sanctions” (Dkt. No. 38). Plaintiffs request the Court to reopen discovery to allow limited discovery relating to electronically stored information. (See Dkt. No. 55, p. 9). Plaintiffs also request the Court to impose sanctions on Defendant Celadon Trucking Services, Inc. (“Celadon”) and/or its counsel for alleged discovery abuses. (See Dkt. No. 38, p.1). A hearing was held on Plaintiffs' motion for sanctions and other discovery matters on March 16, 2012. For the reasons set forth below, Plaintiffs' motion to extend discovery (Dkt. No. 55) is GRANTED. Since the granted discovery will affect Plaintiffs' motion for sanctions, that motion (Dkt. No. 38) is DENIED WITHOUT PREJUDICE. I. BACKGROUND This case involves a motor vehicle collision on June 13, 2009 between a van driven by Plaintiff Jaime Guzman, in which Plaintiff Derrick Lambert was a passenger, and a tractor-trailer driven by Defendant Melvin Jones, who was employed by Defendant Celadon. Defendants conceded liability on August 11, 2011. (See Dkt. No. 19 ¶ 5; Dkt. No. 38, Ex. K). Therefore, the extent of damages sustained by Plaintiffs is currently in dispute. In their motions, Plaintiffs contend that Defendant Celadon failed to preserve and destroyed information relating to the accident that was recorded by an electronic control module (“ECM”) on the tractor-trailer owned by Defendant Celadon. (See Dkt. No. 38, p. 16; Dkt. No. 55, p. 6). Significantly, the ECM data from the date of the accident may be relevant to establish the extent of damages sustained by Plaintiffs, as further discussed below. (See Dkt. No. 38, ¶ 5). This issue was first raised in Plaintiffs' motion for sanctions filed on November 28, 2011 against Defendant Celadon and its counsel. (See Dkt. No. 38, p. 1). In that motion, Plaintiffs state that they originally requested production of the ECM data from Defendants on December 21, 2010, and reiterated this request on March 15, 2011, March 22, 2011, June 20, 2011, and October 12, 2011 (the discovery deadline). (Id. at pp. 5–8). Plaintiffs claim that, initially, Defendant Celadon represented that the ECM data was “not yet downloaded,” and that the information was forthcoming. (See Dkt. No. 38, p. 6; Dkt. No. 38, Exs. G, M). Then, on October 14, 2011, Defendants stated in an e-mail that “Celadon has confirmed that it doesn't have ECM for this accident” because the data is only automatically downloaded in “accidents resulting in fatality.”[1] (Id. at Ex. M). As a result of Defendants' alleged failure to preserve the ECM data, along with other alleged discovery abuses, Plaintiffs filed their motion for sanctions. *2 On Defendants' response deadline of December 19, 2011, Defendants requested an extension of time to respond to Plaintiffs' motion for sanctions. (See Dkt. No. 42, ¶ 3). Defendants stated that although information from the accident may have been overwritten, Defendant Celadon would attempt to retrieve the ECM data on December 23, 2011. (Id.). Therefore, Defendants requested an extension to file their response on December 30, 2011. (Id.). On December, 22, 2011, the Court granted Defendants' motion. (See Dkt. No. 48, p. 2). As a courtesy to Plaintiffs, Defendants offered Plaintiffs the opportunity to send an expert to observe the data extraction. (See Dkt. No. 42, Ex. A, p. 1). Plaintiffs accepted this offer, and, on December 21, 2011, requested information about the ECM to allow Plaintiffs' expert to prepare for the download. (Id.). However, that same day, unbeknownst to Plaintiffs (and the Court), Defendant Celadon conducted a download of the ECM data. (See Dkt. No. 49, Ex. B, p. 1). Plaintiffs represent that the results of this download, provided by Defendants, did not contain information from the date of the accident. (See Minute Entry, March 16, 2012). Further, Plaintiffs contend that the results contained forty to fifty blank pages, within which appeared to be one or two lines of data that were either cut off or incomplete. (See Dkt. No. 55, p. 6). Here, Defendants appear not to controvert Plaintiffs' claims. Consequently, Plaintiffs conclude that Defendants performed a destructive download and request the Court to reopen discovery to (1) allow Plaintiffs to conduct a deposition of a representative of Defendant Celadon pursuant to Federal Rule of Civil Procedure Rule 30(b)(6) limited to specific topics; and (2) allow Plaintiffs to inspect and perform a download of the ECM data. (Id. at p. 9). II. DISCUSSION a. Legal Standard Federal Rule of Civil Procedure 16(b)(4) provides that a scheduling order “may be modified only for good cause and with the judge's consent.” The Fifth Circuit has explained that “[t]he good cause standard requires the ‘party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.’ ” S & W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003) (quoting 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1552.1 (2d ed. 1990)). In other words, the party who seeks to modify a scheduling order deadline must show that, despite acting diligently, it will still be unable to meet that deadline. Hernandez, 617 F. Supp.2d at 493 (citation omitted). Mere stipulations by the parties do not constitute good cause. Id. (citation omitted). “Neither parties nor their counsel have the authority to stipulate or otherwise agree to changes in the Court's orders regarding discovery or any other scheduling matter unless expressly authorized to do so by Rule or by Court order.” Id. (citation omitted). In the context of an untimely motion to submit expert reports, designate experts or amend the pleadings, the Fifth Circuit Court of Appeals applies a four-factor balancing test to determine whether good cause exists: (1) the explanation for the failure to adhere to the deadline at issue; (2) the importance of the proposed modification to the scheduling order; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice. See Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997) (submit expert reports); see Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990) (designate expert witnesses); see S & W Enters., LLC, 315 F.3d at 536 (amend the pleadings). Some district courts in the Southern District of Texas have also utilized this test in the context of a motion to reopen discovery. See Rollins v. St. Jude Med., 2009 U.S. Dist. LEXIS 81352, at *9, 2009 WL 2601376, at *3 (S.D. Tex. Aug. 24, 2009); Hernandez v. Maria's Auto Sales, Inc., 617 F. Supp.2d 488, 493 (S.D. Tex. Jan. 21, 2009); United States v. McFerrin, 2007 U.S. Dist. LEXIS 91022, at *2, 2007 WL 4353709, *1 (S.D. Tex. Dec. 11, 2007) (citing Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003)); see also Carmona v. Carmona, 2006 U.S. Dist. LEXIS 88868, at *6–7, 2006 WL 3839851, *3–4 (S.D. Tex. Dec. 8, 2006) (citing Hawthorne Land Co. v. Occidental Chem. Corp., 431 F.3d 221, 227 (5th Cir. 2005)). *3 Notwithstanding this four-factor test, the court still has the “inherent power to control its own docket to ensure that cases proceed before it in a timely and orderly fashion.” U.S. v. Waldman, 579 F.2d 649, 653 (1st Cir. 1978) (citing United States v. Correja, 531 F.2d 1095, 1098 (1st Cir. 1976)). The purpose of a scheduling order is to allow the district court to control and expedite pretrial discovery matters. Geiserman, 893 F.2d at 790. Scheduling orders and their enforcement are regarded as essential in ensuring that cases proceed to trial in just, efficient, and certain manner. Rouse v. Farmers State Bank of Jewells, Iowa, 866 F.Supp. 1191, 1198 (N.D. Iowa 1994) (citations omitted). To achieve this end, the Court is given broad discretion so that the integrity and purpose of the pretrial order may be preserved. See Bilbe v. Belsom, 530 F.3d 314, 317 (5th Cir. 2008) (stating that the district court's decision regarding whether to modify a scheduling order is afforded great deference, especially where the facts of the case suggest a lack of diligence on the part of the movant); S & W Enters., LLC, 315 F.3d at 535; Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir. 1979). b. Analysis Here, the Court notes that Plaintiffs on two occasions waited three to four months before repeating their request for the ECM data from Defendants. (See Dkt. No. 38, pp. 5–8). Furthermore, after several attempts to request production from Defendants, Plaintiffs never sought the aid of the Court or filed a proper motion to compel the ECM data. If diligence is the sole factor a court must analyze in determining whether good cause exists to extend a scheduling order deadline, then in this case Plaintiffs have failed to meet this standard. However, assuming that the above-mentioned four-factor balancing test applies, then Plaintiffs have shown that good cause exists to amend the scheduling order. The first factor, the explanation for the failure to complete discovery within the discovery deadline, weighs against a continuance. As explained above, Plaintiffs have failed to show diligent efforts to compel Defendants to produce the ECM data. See Smith v. BCE Inc., 225 Fed. Appx. 212, 217 (5th Cir. 2007) (unpublished) (“A diligent party attempts to compel discovery through the presiding court after opposed counsel unjustly refuses to provide responses.”). On the other hand, the second factor, the importance of the proposed additional discovery weighs in favor of amending the scheduling order. First, Plaintiffs argue that the information stored on the ECM, such as the Sudden Deceleration Data Reports (“SDDR”), may be relevant to establish the extent of damages sustained by Plaintiffs. (Dkt. No. 38, ¶ 5). Here, to support their need for additional discovery, Plaintiffs submit an affidavit from their consultant Mr. Peter Sullivan (“Mr. Sullivan”). In his affidavit, Mr. Sullivan states that, the SDDR includes the following critical, crash-related, information: (a)Time stamps and related data from 60 seconds before to 15 seconds after the event or collision occurred, (b) Vehicle MPH at one second intervals, (c) Engine RPM at one second intervals, (d) Engine load % at one second intervals, (e) Throttle % at one second intervals, (f) Brake pedal status (on/off) at one second intervals, (g) Clutch status at one second intervals, (h) Cruise status at one second intervals, and (i) Malfunction Indicator Lamp (MIL) status at one second intervals. (See Dkt. No. 58, Ex. A, p. 4). Second, even if the ECM data from the accident no longer exists, Plaintiffs argue that additional discovery may reveal whether Defendants failed to preserve, altered or destroyed this information, thus potentially requiring the Court to impose sanctions. (See Dkt. No. 55, Ex. A, ¶ 9). Here, besides previously requesting the ECM data on various occasions, Plaintiffs present evidence that Defendant Celadon may have conducted an improper and/or destructive download of the ECM data. According to Mr. Sullivan, “[i]t is common knowledge within the industry that both Cummins Insite as well as Cummins Powerspec must be used to obtain a Cummins ECM Image and Sudden Deceleration Data Reports.” (See Dkt. No. 58, Ex. A, p. 2). Plaintiffs contend that the results provided by Defendant Celadon indicated that Defendant Celadon only used the Cummins Insite software in conducting the download. (See Dkt. No. 55, p. 6; March 16, 2012 Motions Hearing at 12:13:50). Moreover, Plaintiffs state that Defendant Celadon has represented to them that it does not possess an operations manual for the ECM (See Dkt. No. 61, ¶ 3), which raises additional questions whether there was an improper download of the ECM data. *4 The third factor and fourth factors, the potential prejudice in allowing the amendment and the availability of a continuance to cure such prejudice, also weigh in favor of Plaintiffs. Defendants may be slightly prejudiced in having to expend additional resources and invest time in attending additional depositions relating to this discovery. However, Defendants' increased costs are a result of their failure to timely produce the ECM data and their subsequent method of downloading it. Furthermore, while the Court does not believe Defendants will be prejudiced as a result of the short delay resulting from reopening discovery for this limited purpose, the District Court can alleviate any prejudice by allowing for a short continuance. On balance, Plaintiffs have shown that good cause exists under the four-factor balancing test. Though, Plaintiffs have failed to meet the diligence standards, the additional discovery relating to the ECM data may have some importance to Plaintiffs case. Moreover, briefly reopening discovery will not result in substantial prejudice to Defendants, and any resulting prejudice can be cured by a continuance. Since reopening discovery for this limited purpose will allow Plaintiffs to determine whether the ECM data exists or if it has been destroyed or altered, the Court will grant a brief extension of the discovery deadline. Next, to prepare for the download, Plaintiffs claim they need to conduct a Rule 30(b)(6) deposition of a representative of Defendant Celadon to obtain certain information about the ECM. (Id.). Additionally, this proposed deposition would cover the existence and extent of any litigation hold Defendant Celadon placed on the ECM data. (Id.). The four specific subjects for deposition testimony identified by Plaintiffs are as follows: (a) the date and circumstances the accident tractor-trailer rig was returned to service; (b) the history of the ECM in the accident tractor-trailer rig including but not limited to any time any data or settings were accessed, attempted to be accessed, manipulated or attempted to be manipulated, damage history, repair history, maintenance history, power up and down history, hardware and software requirements including alteration or attempting to alter any of the ECM's functioning, settings and parameters from the date of the accident to the present; (c) the existence and extent of any litigation hold placed on the ECM data in question; and (d) the parameters of the recent download such as all hardware and software used, the circumstances of how the data and settings were accessed, manipulated, altered and the like. (Id. at ¶ 4). In response, Defendants state that they are not opposed to extending the discovery deadline for Plaintiffs to inspect and download data from the ECM. (See Dkt. No. 61, ¶ 4). However, Defendants believe that allowing a Rule 30(b)(6) deposition to occur before Plaintiffs' download of the ECM data would “guarantee the pursuit of irrelevant discovery.” (Id. at ¶ 3). For example, Defendants claim that if Plaintiffs successfully download the ECM data from the date of the accident, then “the requested deposition testimony becomes moot.” (Id.). Consequently, Defendants request the Court to condition or defer its ruling as to what deposition testimony (if any) will be permitted on the results of the ECM download. (Id.). Here, Defendants' proposal ignores Plaintiffs' need to question Defendant Celadon about information to prepare for the download itself, information that is covered in topic (b) and possibly (d) set out above. (See Dkt. No. 55, p. 4). Moreover, since Defendant Celadon allegedly does not possess an ECM operations manual to turn over to Plaintiffs, it is even more important for Plaintiffs to question Defendant Celadon as to how it conducted its December 21st download. (See Dkt. No. 61, ¶ 3). Therefore, the Court declines to condition or defer the Rule 30(b)(6) deposition and will reopen discovery as requested by Plaintiffs. *5 Finally, the Court declines to grant Plaintiffs' motion for sanctions at this time. Since Plaintiffs' arguments in its motion for sanctions may be significantly affected by information obtained through additional discovery, the Court advises Plaintiffs to refile their motion after discovery relating to the ECM data is completed. As such, “Plaintiffs' Motion for Sanctions” (Dkt. No. 38) is DENIED WITHOUT PREJUDICE. III. CONCLUSION For the reasons set forth above, Plaintiffs' “Opposed Motion to Extend Discovery to Determine if Defendants' Ex Parte Download of the ECM Data was Properly Performed for a Complete Extraction of the Data” (Dkt. No. 55) is GRANTED. Plaintiffs may conduct a Rule 30(b)(6) deposition of a representative(s) designated by Defendant Celadon limited to subjects as outlined above. Defendants are ORDERED to (1) provide Plaintiffs with any information relating to the operation of the ECM; (2) allow Plaintiffs to inspect the ECM; and (3) allow Plaintiffs to download information from the ECM. Plaintiffs must complete discovery relating to ECM information within thirty days of entry of this Order. “Plaintiffs' Motion for Sanctions” (Dkt. No. 38) is DENIED WITHOUT PREJUDICE. IT IS SO ORDERED. Footnotes [1] Defendants have represented in its response to Plaintiffs' motion for sanctions that Defendant Celadon does not preserve ECM information in nonfatal accidents unless it gets a specific request. (See Dkt. No. 49, ¶ 3; March 16, 2012 Motions Hearing at 12:32:05).