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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

AMERICAN FURUKAWA, INC., 

Plaintiff, 

v. 

ISTHIHAR HOSSAIN, a Michigan Resident, 

and HT WIRE & CABLE AMERICAS, LLC,

a Limited Liability Company 

Defendants. 

 /

Case No. 2:14-cv-13633 

UNITED STATES DISTRICT COURT JUDGE

GERSHWIN A. DRAIN

UNITED STATES MAGISTRATE JUDGE

STEPHANIE DAWKINS DAVIS

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S 

MOTION FOR LEAVE TO CONDUCT ADDITIONAL DISCOVERY WITH RESPECT TO 

DEFENDANTS’ WITNESS LIST [128] AND ORDERING DEFENDANTS TO PRODUCE 

AN UPDATED WITNESS LIST

I. INTRODUCTION

 Before the Court is Plaintiff’s Motion for Leave to Conduct Additional 

Discovery with Respect to Defendants’ Witness List, filed May 16, 2016. Dkt. No. 

128. The matter has been fully briefed. Upon review of the Motion, the Court finds 

that good cause has been shown to partially grant the requested relief. Accordingly, 

for the reasons discussed below, the Motion will be GRANTED IN PART and 

DENIED IN PART. 

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II. BACKGROUND

Plaintiff commenced this action on September 19, 2014. In the Court’s 

initial Scheduling Order, a deadline of April 21, 2015 was set for the parties to file 

witness lists. Dkt. No. 23. On July 7, 2015, the Court amended the Scheduling 

Order, setting September 30, 2015 as the new discovery cutoff date, but did not 

extend the date for filing witness lists. Dkt. No. 40. On September 16, 2015, the 

Plaintiff filed its Amended Complaint, adding HT Wire as a Defendant. Dkt. No. 

65. On December 22, 2015, the Court issued a Second Amended Scheduling 

Order, extending the discovery cutoff to March 15, 2016, but again did not extend 

the deadline for filing witness lists. Dkt. No. 107. Defendants filed their Witness 

List on February 23, 2016. Dkt. No. 109. The Defendants’ Witness List 

encompassed numerous categories, including “[a]ll past or present” employees of 

HT Wire & Cable Americas, LLC, Electric Wire & Cable Co., Ltd., Furukawa 

Electric Co, Ltd., and several other companies. See Dkt. No. 133 (Exhibit B). 

In response to Defendants’ late filing, Plaintiff filed a Motion to Strike the 

Witness List on March 21, 2016. Dkt. No. 112. In an Order dated May 11, 2016, 

the Court denied Plaintiff’s Motion, but said that, “if Plaintiff finds it necessary to 

conduct additional discovery or depositions, it should file a motion with the Court 

for immediate consideration, and the Court will take appropriate action.” Dkt. No. 

126. 

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Plaintiff then filed a Motion for Leave to Conduct Additional Discovery 

with Respect to Defendants’ Witness List on May 15, 2016. Dkt. No. 128. Plaintiff 

seeks leave to: 

A. Issue a set of interrogatories requesting information as to each 

of Defendants’ witnesses, including name and contact 

information, whether Defendants have actually spoken to such 

person, whether defendants actually intend to call such person 

as a witness and the facts to which such witness will testify, if 

any; and 

B. Leave to depose any such witnesses who will be called to 

testify 

Dkt. No. 128, at 2 (Pg. ID No. 3337). A final pre-trial conference in this case is set 

for August 10, 2016. A jury trial is then scheduled to begin on August 18, 2016. 

 III. LAW & ANALYSIS 

Federal Rule of Civil Procedure 16(b)(4) provides that “[a] schedule may be 

modified only for good cause and with the judge’s consent.” Courts have broad 

discretion in managing discovery, and a decision on a request for an extension of 

discovery is reviewed only for abuse of discretion. Bentkowski v. Scene Magazine, 

637 F.3d 689, 696 (6th Cir. 2011). In determining whether good cause has been 

established, “[t]he overarching inquiry . . . is whether the moving party was 

diligent in pursuing discovery.” Dowling v. Cleveland Clinic Foundation, 593 F.3d 

472, 478 (6th Cir. 2010). The Sixth Circuit has instructed district courts to consider 

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the following factors: “(1) when the moving party learned of the issue that is the 

subject of discovery; (2) how the discovery would affect the ruling below; (3) the 

length of the discovery period; (4) whether the moving party was dilatory; and (5) 

whether the adverse party was responsive to prior discovery requests.” Id.

“[W]hether the opposing party will suffer prejudice by virtue of” amending the 

trial schedule is also a “relevant consideration” in ruling on a Rule 16(b)(4) good 

cause exception. Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003). 

 Plaintiff was made aware of Defendants’ Witness List about three weeks 

before the close of discovery. See Dkt. No. 107, 109. Even if pursued vigorously, 

three weeks is not a sufficient amount of time to issue interrogatories and conduct 

depositions on a case of this nature. On the other hand, Defendants are correct to 

point out that Plaintiff had some opportunities to depose a number of witnesses on 

Defendants’ List during the sixteen months of discovery. Defendants argue both 

that Rule 26 disclosures provided an indication of potential witnesses and that 

some of the individuals on Defendants’ List also appear on Plaintiff’s Witness List. 

Dkt. No. 133 at 3–4 (Pg. ID No. 3458–59). Balancing the fact that Plaintiff learned 

of the issue late with the reality that some of the potential witnesses are not a 

surprise to Plaintiff, the Court finds that factors one and three of the Dowling test 

support additional, but limited, discovery. 

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Additionally, because Plaintiff only had three weeks to respond to 

Defendants’ Witness List, needing extra time to conduct depositions cannot be 

considered dilatory. As to the fifth Dowling factor, Plaintiff has not demonstrated 

that Defendant was significantly unresponsive throughout discovery. Overall, the 

Dowling factors support a grant of leave to Plaintiff. 

Even though the Dowling factors support a grant of leave for additional 

discovery, Plaintiff’s request for leave does not specify what the scope of 

additional discovery will be once its Motion is granted. It seeks to issue 

interrogatories as to all individuals on Defendants’ Witness List, then “[l]eave to 

depose any such witnesses who will be called to testify.” Dkt. No. 128, at 2 (Pg. ID 

No. 3337). Though Plaintiff “suspects” that it will only conduct discovery of a 

short list of witnesses, it has not made any concrete predictions as to the extent of 

additional discovery. Dkt. No. 135, at 2 (Pg. ID No. 3485). 

Rather than grant indefinite leave, the Court will temporarily reopen 

discovery until September 15, 2016. Furthermore, discovery will be limited to 

witnesses who were not listed on Plaintiff’s witness list, and not specifically 

identified by name on Defendants’ Witness List before March 15, 2016. 

Additionally, in the interest of expediting the process, the Court will order 

Defendants to produce a list of witnesses, identified by name, reasonably expected 

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to be called at trial. The Court finds this way of proceeding preferable to having 

Plaintiff first issue a set of interrogatories. 

IV. CONCLUSION

 For the reasons discussed herein, Plaintiff’s Motion [128] is GRANTED IN 

PART. 

IT IS HEREBY ORDERED that Defendants will submit to Plaintiff a list 

of witnesses expected to be called at trial by Monday, August 1, 2016. 

IT IS FURTHER ORDERED that Plaintiff has until September 15, 2016 

to depose the listed witnesses as necessary. 

The Court shall issue an amended Scheduling Order reflecting these 

changes. 

Dated: July 28, 2016 s/Gershwin A. Drain 

 GERSHWIN A. DRAIN 

 United States District Judge 

CERTIFICATE OF SERVICE 

 The undersigned certifies that the foregoing document was served upon 

counsel of record and any unrepresented parties via the Court's ECF System to 

their respective email or First Class U.S. mail addresses disclosed on the Notice of 

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Electronic Filing on July 28, 2016. 

 s/Shawna Burns on behalf of Tanya R. Bankston 

 TANYA R. BANKSTON 

 Case Manager & Deputy Clerk 

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