Virginia Lawyers Weekly//November 20, 2023
Virginia Lawyers Weekly//November 20, 2023//
Where plaintiffs suing two carmakers over alleged defects objected to a magistrate judge’s order refusing a third extension of the discovery deadline, their objections were overruled. They failed to demonstrate how numerous foreign individuals would be deposed in the three-month timeframe they sought, or why such depositions were necessary and proportional to the needs of the case.
Plaintiffs filed this action on behalf of themselves and others similarly situated against Volkswagen Group of America Inc., or VWGoA, and Audi Aktiengesellschaft. Plaintiffs allege damages stemming from a latent defect in the timing chain system embedded in certain Audi and Volkswagen vehicle models manufactured during model years 2011 through 2015.
The original scheduling order in this case set a discovery deadline of Oct. 14, 2022. It was twice extended by the magistrate judge in response to joint motions by the parties, with the last extension to May 19, 2023. On April 13, 2023, the parties filed a third consent motion to extend the discovery deadlines, for another three months. The magistrate judge denied the third joint motion for lack of good cause. Neither party appealed that decision to this court.
On May 12, 2023, plaintiffs filed a motion to compel certain further discovery. That motion was granted in part and denied in part by the magistrate judge, who also denied without prejudice plaintiffs’ motion for an extension of the discovery deadline.
On June 16, 2023, plaintiffs filed an opposed motion for extension of time seeking to extend the discovery to Sept. 29, 2023. Then on July 7, 2023, plaintiffs filed another motion to compel. Following a hearing, the magistrate judge: (i) extended expert discovery until Sept. 5, 2023; (ii) directed defendants to supplement their discovery by July 26, 2023, and (iii) permitted additional discovery until Aug. 9, 2023, but limited it to discovery concerning documents produced from May 19, 2023, through July 26, 2023. Plaintiffs have filed objections to that order.
The magistrate judge’s order is not clearly erroneous or contrary to law. Plaintiffs unduly delayed the filing of their motion to compel until at least three weeks after they filed the opposed extension motion and at least five weeks after the close of discovery. Moreover, plaintiffs failed to bring many of the issues on which they now focus to the magistrate judge’s attention.
Judge Davis cannot be faulted for failing to grant plaintiffs relief that they did not actually seek and, as he correctly noted, defendants cannot be compelled to produce documents that do not exist. Similarly, there is no basis on which to extend the discovery period by three months for plaintiffs to pursue depositions of unidentified German nationals, especially where plaintiffs have not explained how such individuals will be deposed within the three-month timeframe or why such depositions are necessary and proportional to the needs of the case.
Plaintiffs’ objections overruled.
Connelly v. Volkswagen Group of America Inc., Case No. 1:19-cv-1487, Nov. 3, 2023. EDVA at Alexandria (Alston). VLW 023-3-706. 16 pp.