IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

VICTORIA KLEIN, et al., §

 §

Plaintiffs, §

 § Civil Action No. 7:03-CV-102-D

VS. § (Consolidated with 

 § Civil Action No. 7:09-CV-094-D)

FEDERAL INSURANCE CO., §

a/k/a CHUBB GROUP OF §

INSURANCE COMPANIES, et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

The class plaintiffs move to reopen discovery and modify pretrial schedule deadlines

so that they can take at least three new depositions and briefly re-depose defendant’s Fed. R.

Civ. P. 30(b)(6) corporate representative. Defendant Federal Insurance Company (“Federal”)

opposes the motion. Concluding that the class plaintiffs have satisfied the Rule 16(b)(4)

good cause standard to modify the scheduling order and conduct the requested depositions,

the court grants the motion.1

I

The class plaintiffs seek to depose Peggy Smoler (now known as Peggy Schecter)

(“Schecter”), Jacqueline Barone (now known as Jacqueline Sarantonio) (“Sarantonio”), and

1

Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written

opinion” adopted by the Judicial Conference of the United States, this is a “written opinion[]

issued by the court” because it “sets forth a reasoned explanation for [the] court’s decision.” 

It has been written, however, primarily for the parties, to decide issues presented in this case,

and not for publication in an official reporter, and should be understood accordingly.

 

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Dennis Annecchino (“Annecchino”), and to briefly re-depose Steven Jakubowski

(“Jakubowski”), Federal’s Rule 30(b)(6) corporate representative. Depending on the

deposition testimony of Schecter and Annecchino, the class plaintiffs also seek to depose

William “Bill” Brick (“Brick”) and/or Fred Schmidt (“Schmidt”). 

The testimony of the new witnesses is pertinent to the fact question whether Federal

(Chubb Insurance) received notice of E-Ferol claims in the form of an April 23, 1984 letter

from Revco D.S., Inc. Federal denies that it received this notice because it has not located

a copy of the letter in its files or the files of any of its divisions, subsidiaries, or affiliated

companies. The class plaintiffs maintain that the testimony of the new witnesses will bear

directly on whether Federal received the April 23, 1984 letter, which they contend is one of

the most important issues in this litigation. The class plaintiffs posit that there is good cause

to amend the scheduling order to enable them to conduct these depositions because they have

diligently sought to find Schecter, Sarantonio, and Annecchino and have only recently

located them, and because each witness is important to a vital fact that the class plaintiffs

seek to prove: that Federal received the same notice as did all of Revco’s other insurers, and

that, if Ohio law applies, Federal was not prejudiced by late notice.

Regarding Jakubowski, the class plaintiffs seek to briefly re-depose him for essentially

two reasons. First, they maintain that they asked Federal, in interrogatories, and Jakubowski,

at his deposition, for address and contact information for Schecter, Sarantonio, and

Annecchino, and Federal denied having any knowledge of their whereabouts. They asked

Jakubowski to check the pension and personnel records of Chubb and Chubb-related entities

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for information that counsel for the class plaintiffs could use to locate these witnesses. 

Federal later notified them by letter that it had no such knowledge, and Federal has never

updated its interrogatory answers or Jakubowski’s deposition testimony. The class plaintiffs

seek to question Jakubowski to determine whether Federal was merely lackadaisical or

uninterested in locating these witnesses, or intentionally attempted to prevent the class

plaintiffs from finding this information and locating the witnesses.

Second, the class plaintiffs seek to re-depose Jakubowski about a letter and its

attachments. They maintain that he was asked at his deposition about an April 16, 1984 letter

that Federal produced from Chubb files that was partly illegible. Attached to the letter were

documents (identified as Exhibits 15a, 15b, 15d, and 15e) that contained several 1984 news

articles concerning E-Ferol. When asked about this by class counsel, Jakubowski testified,

in pertinent part, that the documents were too incomplete to qualify as a notice of claim. The

class plaintiffs contend that, after Jakubowski’s deposition, they subpoenaed certain

documents from CVS, and the documents CVS produced included completely legible

copies of Exhibits 15a, 15b, 15d, and 15e. The class plaintiffs seek to question Jakubowski

using the legible versions of the documents that CVS produced. They ask that the

Jakubowski deposition take place after the depositions of Schecter, Sarantonio, and

Annecchino so that they will have Federal’s position on the notice after any additional

evidence is produced by these witnesses.

In their motion, the class plaintiffs explain in detail why each witness’ testimony is

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important, and they identify the areas of inquiry that they seek to pursue with each witness. 

They also address why they contend that Federal would not be prejudiced by granting the

requested relief.2

Federal contends that the court should deny the motion because the class plaintiffs had

sufficient time to conduct discovery about Federal’s late notice defense and depose each of

these individuals before discovery closed; they have known for several years about the April

23, 1984 letter and the individuals they seek to depose, and they should not be permitted to 

re-depose Jakubowski. Federal cites portions of the discovery record that reflect that Federal

denied receiving the April 23, 1984 notice letter because it could not locate a copy in its files;

that the class plaintiffs, at the very latest, were aware of Annecchino and Schecter and the

April 23, 1984 letter more than two years before the discovery deadline; that Annecchino and

Sarantonio are identified in the April 23, 1984 letter, which the class plaintiffs already had

when they filed their complaint; that when Jakubowski was deposed on September 13, 2013,

Schecter, Sarantonio, Annecchino, Brick, and Schmidt were all discussed; that, ten months

before the close of discovery, the class plaintiffs obtained the declaration of Jack Staph,

Esquire (“Staph”), which addresses many of the issues in this case and relates, inter alia, to

the issue of late notice; that when counsel for the class plaintiffs communicated with

Federal’s counsel about the dispute regarding the Staph declaration, he essentially opposed

an extension of the deadline for filing summary judgment motions, forcing Federal to obtain

2

As the court explains below, it disagrees with the class plaintiffs’ position on the

prejudice factor.

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relief from the court; that when the court granted Federal’s alternative request to extend the

discovery deadline so that Staph could be deposed (and any related discovery could be

completed), it did not reopen discovery generally; and that the class plaintiffs are requesting

an extension of the discovery deadline to allow them to conduct six additional depositions,

despite the absence of developments or any changes concerning the April 23, 1984 letter and

Federal’s late notice defense, and the fact that the class plaintiffs have known about these

individuals for several years and did not seek to depose them until now.

II

Rule 16(b)(4) governs a party’s request to extend the discovery period after the

deadline established by a scheduling order has elapsed. Cartier v. Egana of Switz. (Am.)

Corp., 2009 WL 614820, at *2 (N.D. Tex. Mar. 11, 2009) (Fitzwater, C.J.). To modify the

scheduling order, a party must demonstrate good cause and obtain the judge’s consent. Id.

The good cause standard “require[s] the movant ‘to show that the deadlines cannot

reasonably be met despite the diligence of the party needing the extension.’” Puig v.

Citibank, N.A., 514 Fed. Appx. 483, 487-88 (5th Cir. 2013) (per curiam) (quoting S & W

Enters., L.L.C. v. SouthTrust Bank of Ala., N.A., 315 F.3d 533, 535 (5th Cir. 2003)). “In

determining whether the movant has met its burden under Rule 16(b)(4), the court considers

four factors: (1) the party’s explanation, (2) the importance of the requested relief,

(3) potential prejudice in granting the relief, and (4) the availability of a continuance to cure

such prejudice.” Cartier, 2009 WL 614820, at *3 (citing S & W Enters., 315 F.3d at 536). 

The court considers the four factors holistically and “does not mechanically count the number

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of factors that favor each side.” EEOC v. Serv. Temps., Inc., 2009 WL 3294863, at *3 (N.D.

Tex. Oct. 13, 2009) (Fitzwater, C.J.), aff’d, 679 F.3d 323 (5th Cir. 2012).

III

A

The court turns first to the class plaintiffs’ diligence and their explanation for not

conducting the requested discovery before the court-ordered deadline. 

The class plaintiffs have explained in their motion in detail why they only recently

located the three new witnesses, and why they desire to re-depose Jakubowski after they

located the witnesses on their own and after CVS produced legible copies of the exhibits to

the April 16, 1984 letter. The assertions of their motion are supported by the evidence on

which they rely. Additionally, the court’s assessment of their diligence in this specific

context is informed by the overall track record of diligence that counsel for the class

plaintiffs have compiled in this multi-year, complex litigation. It is a record developed from

the time they began representing the putative class, through the processes of class

certification and settlement of the class action, through the sometimes complex

administration of settlement proceeds to individual class members, to the instant insurance

litigation. Moreover, it is appropriate to take into account the unusual and exceptional nature

of this case and the difficulties that have arisen due to the complex nature of the underlying

proceedings, and to the substantial time that elapsed between when E-Ferol was recalled and

insurance claims were made, and when this insurance litigation commenced. And it is

noteworthy that the class plaintiffs sought unsuccessfully to obtain these witnesses’ contact

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information from Federal, including at the Rule 30(b)(6) deposition of Jakubowski on

September 13, 2013, well before the October 31, 2014 discovery deadline. In sum, this is

an unusual case in which, despite the diligence of the class plaintiffs, they were unable to

locate these witnesses.

B

The relief that the class plaintiffs seek is very important. They are attempting to

obtain testimony that relates to a key defense on which Federal relies, and that, based on the

identities of the witnesses and the nature of their potential knowledge, appears to be highly

probative concerning the merits of that defense.3

Although Federal purports in its response to challenge the importance of the requested

relief, it relies on flawed reasoning. Federal maintains that the class plaintiffs have not

sufficiently demonstrated the importance of the information because, although they are

correct that, if the court finds that Ohio law applies, they would have the burden of proving

timely receipt of notice and lack of harm, this is a not a new development in Ohio law. 

Federal contends that the class plaintiffs have known for several years that Ohio law places

3

In a footnote in Federal’s response brief, it contends that “Federal has repeatedly

stated that it searched its files and it simply has no record of receiving the letter. Class

Plaintiffs, however, continue to unnecessarily and inappropriately raise the issue and waste

the parties’ and the Court’s time.” D. Br. 3 n.5. But Federal continues to rely on the defense

of lack of notice—asserting as its third defense that the class plaintiffs’ claims are barred to

the extent the insured has not provided timely notice to Federal. In response to requests for

admissions, Federal has denied that it received the April 23, 1984 letter. Unless Federal

withdraws this defense and removes the notice issue from the case, the class plaintiffs must

be prepared to address it in response to a summary judgment motion and/or at trial.

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the burden of proof on the insured to prove that notice was given within a reasonable time;

they have known that if the court finds notice to be untimely, the insured bears the burden

under Ohio law of proving that the insurer was not harmed; and they have been aware of the

law for years and have had sufficient time to conduct discovery related to these issues. These

are not reasons to conclude that the relief is not important; if anything, they are reasons to

find that the class plaintiffs did not act diligently (i.e., the first factor), a premise that the

court has already resolved in favor of the class plaintiffs.

C

The third factor considers the potential prejudice in granting the relief, and the fourth

factor assesses the availability of a continuance to cure such prejudice.

The class plaintiffs maintain that Federal will not be prejudiced. Federal counters that

it will, because it will be very costly for Federal to prepare for and attend these additional,

unnecessary depositions; subjecting Jakubowski to another deposition would be unduly

burdensome; the parties’ time and resources would be better spent proceeding with the

adjudication of the case; and Federal will be prejudiced by continued delay.

The court agrees with Federal that it will incur some prejudice in the form of

additional expenses and delay if these depositions are allowed. The court also agrees that a

continuance will not cure this prejudice. The case is not yet set for trial, so there is no trial

date to continue. And a continuance of the summary judgment motion deadline would not

ameliorate prejudice incurred due to increased costs and delay. The court will take these

factors—which favor Federal’s position—into account when assessing all four factors

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holistically.

D

Considering the factors holistically, the court finds that there is good cause to amend

the scheduling order so that the class plaintiffs can depose Schecter, Sarantonio, and

Annecchino, re-depose Jakubowski, and perhaps depose Brick and Schmidt. The discovery

the class plaintiffs seek is very important. It relates to a key defense, and, as the court finds

above, the identities of the witnesses and the nature of their potential knowledge suggest that

their testimony will be highly probative on this issue. The class plaintiffs were diligent in

attempting to locate these witnesses. Their explanation for why they did not locate them

until recently is reasonable. They should be permitted to develop this evidence now that they

have found these witnesses. And they should be permitted to re-depose Jakubowski on the

matters they have identified.

Although Federal will incur prejudice due to the additional costs and delay, the court

is not persuaded that the nature or extent of such prejudice is sufficient in the specific

circumstances of this case to deny the class plaintiffs the discovery they seek. As the court

has explained, this is an unusual and exceptional case in which, despite the diligence of the

class plaintiffs, they were unable until recently to locate these key witnesses on an issue that

is very important to the adjudication of this case. And the class plaintiffs should be able to

re-depose Jakubowski about Federal’s efforts to find and disclose pertinent information

concerning the whereabouts of Schecter, Sarantonio, and Annecchino, and using the legible

documents that CVS produced.

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IV

Due to the logistics involved in taking these depositions, including the availability of

counsel and the witnesses and the variable concerning whether the depositions of Brick and

Schmidt will also be necessary,4

 the court deems it advisable to direct that counsel confer and

propose a procedure and schedule that will permit this discovery to be completed within a

reasonable time, and sets a new deadline for filing summary judgment motions. Unless

counsel reasonably need additional time, the court directs that this proposal be filed no later

than 28 days after this memorandum opinion and order is filed.

* * *

Accordingly, for the reasons explained, the court grants the class plaintiffs’ motion

to reopen discovery and modify pretrial schedule deadlines.

SO ORDERED.

October 29, 2015.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

4

The court assumes that the parties will reasonably confer about whether either or both

of these depositions are necessary before seeking relief from the court.

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