In re Chicago Bridge & Iron Company N.V. Securities Litigation

Background

Plaintiffs’ counsel asked for permission to serve a document request or subpoena seeking current and future deposition transcripts, along with the related exhibits, from counsel in the related Texas state-court case Cohen v. Chicago Bridge & Iron Company, N.V. Defendants opposed the request, arguing that discovery had closed.

The parties had already disputed the issue by email, and the Special Master had resolved it by email before plaintiffs’ counsel requested a formal order. The requested transcripts concerned depositions held after the discovery cutoff, beginning in January 2020, and future depositions.

Reasoning

Federal Rule of Civil Procedure 16(b)(4) permits a discovery schedule to be changed only for good cause and with the judge’s consent. The order addressed only the good-cause requirement. It found good cause because the requested transcripts did not exist when the discovery cutoff occurred, so plaintiffs could not have requested them earlier.

The order distinguished defendants’ cited cases. It explained that this was not a situation in which a party had to supplement an earlier discovery response, because no earlier request could have covered documents that did not yet exist. It also found that plaintiffs could not have known in advance which depositions would occur in the separate litigation.

The order stated that the parties did not dispute that the Texas case was related to this litigation. Because defendants had produced many documents from that case and the requested materials were relevant, their relevance was presumed. The order also found no burden or prejudice to defendants. Although plaintiffs could have served a third-party subpoena, the order concluded that a subpoena was unnecessary because defendants were parties to both cases and possessed the materials.

Ruling

The Special Master ordered that the requested documents be produced to plaintiffs forthwith, meaning promptly, at plaintiffs’ expense. The opinion does not state a separate disposition using the terms “granted” or “denied” for the discovery request; it records the production order after the dispute had been resolved by email.