Submitted: March 18, 2005
ORDER GRANTING MOTION TO ADD WITNESSES
After being continued on two prior occasions, on March 9,
2005, the trial in this matter was reset for April 25, 2005.
A new scheduling order was issued fixing new pretrial
deadlines, however, the respondent's counsel then
indicated that he had not agreed to the extension of those
deadlines and objected to the petitioner's addition of
witnesses not disclosed within the time allowed by the
previous scheduling order.
Where a trial is reset and the setting is a month and a half
away, the Court should have ascertained whether counsel had
agreed to extend pretrial deadlines. Absent their agreement,
an opportunity should be provided for objections to any
request for an extension to the deadlines and the deadlines
should be extended only for good cause. In this case, counsel
for the petitioner indicated that the additional witnesses
were responsive to deposition testimony taken by agreement
after the previously set deadlines. The Court will therefore
permit the addition of the witnesses, however, counsel for
petitioner shall furnish the respondent's counsel with
witness summaries complying with the new scheduling order and
also notify respondent's counsel of the portions of
deposition testimony to which the additional testimony is
Procedure: Scheduling Order. Where a trial
is reset and the setting is only a month and a half distant,
the Court should ascertain whether counsel agree to extend
pretrial deadlines. Absent their agreement, an opportunity
should be provided for objections to any extension of
pretrial deadlines and such deadlines should be extended only
for good cause.
The petition in this matter was filed May 20, 2004. The
initial Scheduling Order set the trial for the week of August
9, 2004. At the parties' request, the trial setting was
vacated without date.
In November 2004, the parties agreed to a settlement
conference on December 10, 2004. At the same time, however,
the petitioner requested a new trial date "as soon as
possible after December 10, 2004," in case the parties
failed to settle. (Motion to Set Hearing, filed November 10,
2004). A new scheduling order was issued on November 15,
2004, setting the trial for the week of February 14, 2005.
The deadline for further identification of witnesses was
January 7, 2005. Depositions were to have been completed and
filed by February 10, 2005.
The December 10th settlement conference was
vacated due to illness of the respondent's counsel. It
was rescheduled for January 24, 2005, and was in fact held on
that date. However, a settlement did not ensue.
In a January 31, 2005 file note, copied to both counsel, this
Court's chief hearing examiner, Jay Dufrechou, recorded
that on that date he talked by telephone to both counsel and
suggested that the February 14, 2005 trial date be vacated to
permit completion of discovery. Counsel were directed to
provide the Court with a status report no later than March 1,
2005. Neither counsel did so.
The Court file reflects that on March 8, 2005, the
petitioner's counsel faxed a message to Mr. Dufrechou
requesting a new trial date. After consulting with opposing
counsel about trial dates, an April 25, 2005 date was chosen.
That date was confirmed in an Order Resetting Scheduling
Order issued March 9, 2005. Although no agreement had been
reached between counsel regarding extension of deadlines for
identifying additional witnesses or undertaking additional
discovery, the new order extended those deadlines, allowing
identification of new witnesses up to March 25, 2005.
The March 8, 2005 FAX from the petitioner's counsel
indicated he had three potential new witnesses. On March 10,
2005, one day after the Court issued the latest scheduling
order, the respondent's counsel wrote to the Court to
advise that he had not agreed to additional witnesses nor to
an extension of the deadline for disclosing witnesses. The
petitioner then filed a Motion to Add Witnesses. The motion
was briefed by both parties and submitted as of March 18,
On March 21, 2005, I held a conference call with counsel to
discuss the motion. In a situation such as this, where
deadlines had already passed and the request was only to
reset the trial date, the Court should have inquired as to
whether the parties agreed to extend other pretrial deadlines
fixed by prior scheduling orders. Lacking their agreement to
do so, the Court should have provided an opportunity to
object to any extensions and upon such objection permitted
extensions only for good cause.
Pretrial deadlines, however, can and should be extended for
good cause. In the telephone conference with counsel, I
inquired as to the reasons for the belated identification of
the three witnesses. Counsel for the petitioner indicated
that the witnesses will be called to provide testimony which
is responsive to deposition testimony given by Dr. Lee
Harrison. That deposition was taken recently and is the
additional discovery contemplated in Mr. Dufrechou's
memo. In light of those representations, as ...