Free Motion for Extension of Time - District Court of Arizona - Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Barbara J. Dawson (#012104) Matthew P. Fischer (#019770) Melissa M. Krueger (#021176) SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Phoenix, Arizona 85004-2202 Telephone: (602) 382-6000 Facsimile: (602) 382-6070 Attorneys for Plaintiff DIRECTV, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

DIRECTV, Inc., a California corporation, Plaintiff, v. Jeffrey S. Killoren, an individual, Defendant.

No. CV-04-0503-PHX-HRH MOTION TO MODIFY CASE MANAGEMENT ORDER NO. 9 RE FINAL WITNESS LISTS (This Motion applies to all 2004 JMC cases)

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Pursuant to Rule 16(b), Federal Rules of Civil Procedure, Plaintiff DIRECTV, Inc. ("DIRECTV") moves the Court for an order modifying the deadline for service and filing of Final Witness Lists as set forth in Case Management Order No. 9 ("CMO-9"), and as applicable to the 2004 jointly managed cases ("2004 JMC"). Pursuant to CMO-9, Final Witness Lists for the 2004 JMC are to be served and filed on or before August 4, 2005. See CMO-9 at 12, Section II(B)(3)(a). For good cause shown, DIRECTV respectfully requests modification of the Final Witness List deadline to on or before September 5, 2005. This Motion is necessary because most defendants failed to timely serve initial disclosures and responses to written discovery (if at all), thereby delaying the overall discovery schedule. This Motion is supported by the following Memorandum of Points and Authorities.

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

MEMORANDUM OF POINTS AND AUTHORITIES Seventeen active defendants remain in the 2004 JMC.1 Despite the best efforts of DIRECTV, discovery in the 2004 JMC has not progressed as quickly as contemplated by the schedule set forth in CMO-9. Of the seventeen active defendants, only two defendants timely served DIRECTV with initial disclosures in compliance with CMO-9. On March 4, 2005, DIRECTV filed a Notice re Status of Rule 26(a)(1) Initial Disclosures, advising the Court of the problem. In response to the Notice, on March 11, 2005, the Court entered an Order warning delinquent defendants of the ramifications of failing to comply with their discovery obligations. Despite the Court's Order, DIRECTV was forced to file motions to compel initial disclosures from six of the seventeen active defendants. DIRECTV still has not received initial disclosures from three defendants, and motions for additional sanctions against those defendants are pending. Of the seventeen active defendants, only three defendants timely served DIRECTV with responses to DIRECTV's initial requests for production, requests for admission, and interrogatories in compliance with CMO-9.2 DIRECTV still has not received responses to its initial written discovery requests from eight of the seventeen defendants. DIRECTV, thus far, has been forced to file six motions to compel responses to its initial written discovery responses, five of which are currently pending. Of the nine written discovery responses DIRECTV ultimately received, only two were not significantly deficient. Through consultation, DIRECTV received remedial supplemental responses from an additional defendant. DIRECTV continues
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"Active defendants" refers to those 2004 JMC defendants who have not settled, filed bankruptcy, or had default entered against them. Final Witness Lists will only be served and filed in cases with active defendants. The seventeen active defendants are set forth in the attached Exhibit A.

One of the three defendants timely requested, and DIRECTV granted, a twoweek extension.

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

to consult with the other six defendants in an attempt to resolve the deficiencies without court intervention. Currently, however, only three of the seventeen active defendants have adequately completed written discovery. Because of the status of written discovery, DIRECTV has had to continue numerous noticed depositions. Consequently, depositions in the 2004 JMC are just beginning. In light of the status of discovery as detailed above, DIRECTV is not in a position to submit Final Witness Lists in the 2004 JMC on August 4, 2005. DIRECTV respectfully requests modification of the Final Witness List deadline in CMO-9 to on or before September 5, 2005. DIRECTV hopes that written and deposition discovery will be significantly more advanced by September 5. Further, a Final Witness List deadline of September 5 should not impact any of the future deadlines set forth in CMO-9. The close of all fact witness discovery is currently September 30, 2005. See CMO-9 at 12, Section II(B)(3)(a). A Final Witness List deadline of September 5 provides the parties with four weeks to take any additional necessary depositions highlighted by the parties' Final Witness Lists.
In compliance with LR 7.1(b)(2), and for the Court's convenience, a proposed form of order is submitted herewith. DATED this _____ day of August, 2005. SNELL & WILMER L.L.P.

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By

s/Matthew P. Fischer Barbara J. Dawson Matthew P. Fischer Melissa M. Krueger One Arizona Center 400 East Van Buren Phoenix, Arizona 85004-2202 Attorneys for Plaintiff DIRECTV, Inc.

1706858.1

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