UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Nordica S.p.A.

Nordica USA Corp.

v. Civil No. 06-cv-451-PB

Icon Health & Fitness, Inc.

O R D E R

Plaintiffs move to extend some scheduling deadlines and the

trial date. Defendant objects except upon certain conditions. 

Defendant also moves to compel Rule 30(b)(6) notice of subpoena

and notice of subpoenas of employees of plaintiffs.

Discussion

This case is a classic example of parties shooting

themselves in the foot. At the outset of the case, the parties

filed five consented to stays of deadline times so that they

could explore settlement. Finally, ten months after suit was

filed, they filed an agreed discovery plan on September 27, 2007. 

That plan called for discovery to be completed by August 1, 2008. 

Virtually nothing was done to meet that completion date when the

parties sought a six-month extension on July 2, 2008. Once again

the court accommodated the parties’ request for extension by an

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Order of July 7, 2008. The Order set February 1, 2009 as the

date for completion of discovery and for filing motions for

summary judgment.

Finally, in the fall of 2008 the parties started discovery:

1. Defendant served interrogatories, requests for

production and requests for admission on October

16, 2008.

2. Plaintiffs responded on December 23, 2008, over

thirty days late. They offered to make documents

available for inspection and copying.

3. Plaintiffs served their discovery requests on

October 31, 2008.

4. Defendant responded to plaintiffs’ requests on

January 9, 2009, again over thirty days late.

5. On January 22, 2009, defendant faxed eight (8)

deposition notices for January 29th, 30th, and 31st,

in New Hampshire. All of the witnesses reside in

Italy. Compliance with the 30(b)(6) subpoena

which lists 64 topic areas was impossible within

the three business days left to plaintiffs. Most

of the witnesses are not even plaintiffs’

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employees and were not subpoenaed. 

6. On February 2, 2009, defendant finally produced

16,500 documents which were then over 60 days

late, and demanded the documents offered to it in

December.

7. On January 29, 2009, defendant mailed an amended

“initial disclosure.”

8. Defendant refuses any post-February first

discovery to plaintiff.

All during this period the parties continued to discuss

settlement. Plaintiffs say the discussions of settlement and

general discussion of extensions of time lulled them into a false

sense of security concerning discovery deadlines.

It appears that the parties stuck their heads in the sand

and ignored deadlines. They both then ignored the deadlines set

forth in the rules. Defendant opportunistically sent

unreasonable and unenforceable subpoena notices and then produced

discovery after the deadline and over 60 days late.

Both New Hampshire counsel know that such “gamesmanship” and

lackadaisical discovery is viewed dimly.

The parties, having ignored the court’s order and the

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deadlines in the rules, cannot now expect the court to bail them

out of the mess they have created for themselves. Any further

discovery will occur by consent or not at all.

A. Document no. 31

The motion to extend the discovery deadline is denied. 

The request to extend the summary judgment deadline is extended

to March 4, 2009, post hoc vice. The motion as it relates to

trial is granted to permit Judge Barbadoro time to consider the

cross motion as well as the motion for summary judgment. The

trial will be rescheduled at the Court’s convenience other than

August, when counsel is unavailable.

B. Document no. 44

The motion to strike is denied - defendant did “sand bag”

plaintiffs.

C. Document no. 47

The motion to compel depositions is denied. Non-party, nonemployees are not subject to deposition on “notice” only. The

30(b)(6) notice and the officer notice are unduly burdensome. 

The former is very broad and could not possibly be responded to

in three business days. The plaintiffs’ corporate officer, who

resides in Italy, cannot reasonably be expected to appear in New

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Hampshire on such short notice - if at all. The post-notice

offers of changed dates and location were subject to such onerous

restraints that I do not view them as a reasonable effort to

resolve the deposition problems.

The parties, having created their own mess, must find their

own way to accomplish any additional discovery.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 10, 2009

cc: Burton S. Ehrlich, Esq.

 James F. Laboe, Esq.

 Jonathan A. Lax, Esq.

 L. Rex Sears, Esq.

 Larry R. Laycock, Esq.

 Robyn L. Phillips, Esq.

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