Durden et al v. USA

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DONNA DURDEN, individually and
as Administrator of the Estate of
Darryle F. Durden, Deceased,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
Case No. 24-CV-02076-SPM
MEMORANDUM AND ORDER
McGLYNN, District Judge:
Before the Court is a Motion for Protective Order to Quash Plaintiff’s Untimely
Notice of Deposition (Doc. 28) filed by the Defendant United States of America.
Having been fully informed of the issues presented, the Government’s Motion for
Protective Order is GRANTED.
R ELEVANT FACTUAL A ND P ROCEDURAL B ACKGROUND
Plaintiff Donna Durden brings this suit individually and as administrator of
the estate of Darryle F. Durden, who died at a VA Community Living Center in St.
Louis, Missouri after being treated at the Emergency Department and as an inpatient
at St. Louis VA Medical Center. (Doc. 1). Plaintiff claims that the decedent developed
a deep vein thrombosis (“DVT”) while a patient at the VA hospital; a large embolus
subsequently traveled to the decedent’s heart, causing cardiac arrest and death. (Id.).
She alleges that the VA hospital failed to diagnose and treat the DVT, conduct which
fell below the standard of care and proximately caused the decedent’s death. (Id.).
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The initial Complaint was filed on August 29, 2024. (Id.). The United States
filed an Answer on November 18, 2024. (Doc. 8). The operative Scheduling Order in
this case was entered on December 10, 2024. (Doc. 14). This Court later permitted a
five-month extension of the discovery deadlines and trial setting. (Docs. 17, 18, 19).
The bench trial in this case is presumptively set for September 2026. (Doc. 21).
The United States filed the instant Motion on February 16, 2026. (Doc. 28).
Plaintiff Durden responded in opposition on March 9, 2026. (Doc. 30).
A PPLICABLE LAW A ND LEGAL S TANDARDS
Rule 26(b)(1) of the Federal Rules of Civil Procedure permits a party to obtain
discovery “regarding any nonprivileged matter that is relevant to any party’s claim
or defense.” F ED. R. CIV. P. 26(b)(1). “Information within this scope of discovery need
not be admissible in evidence to be discoverable.” Id. In addition to being relevant,
the discovery sought must be proportional to the needs of the case, “considering the
importance of the issues at stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefits.” Motorola Sols., Inc. v. Hytera Commc’ns
Corp., 365 F. Supp. 3d 916, 924 (N.D. Ill. 2019) (citing F ED. R. CIV. P. 26(b)(1)).
A NALYSIS
In their Motion, the Government argues that Plaintiffs have issued an
untimely and overbroad Federal Rule of Civil Procedure 30(b)(6) deposition notice
requesting:
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A person or persons to be designated by the Defendant to testify about
the examinations, conditions, care, treatment, tests, diagnoses, and
cause of death of the Decedent, Darryl (sic) Durden, while he was
receiving care and treatment at the John Cochran VA Hospital, St.
Louis, MO and the Jefferson Barracks VA Hospital, from on or about
July 2, 2021, through and including July 14, 2021, the date of his death.
(Id., p. 2 (citing id., Ex. A)). The Government requests this Court to issue a
protective order to quash Plaintiff’s Notice of Deposition. First, they note that the
current deadline to depose the Defendant was October 23, 2025; while Plaintiff
sought an unopposed one-month extension of the expert deadlines in this case (which
this Court granted, see Docs. 24–27), Plaintiff did not request the extension of any
other deadlines. (Doc. 28, p. 2). The Government insists that because “[e]xpert
discovery is well underway, and the parties have an upcoming deadline to initiate
mediation,” that “[r]equiring the United States to interrupt its preparation of expert
discovery in order to comply with Plaintiffs’ Rule 30(b)(6) notice – which requires
preparing multiple witnesses on voluminous medical records – would be prejudicial,
inefficient, 	and 	counterproductive.” 	(Id., 	p. 	3). 	The 	Government 	argues 	that
“Plaintiffs cannot show good cause for the belated Notice of Deposition” because they
“had roughly a year to coordinate for Defendant’s deposition prior to producing their
expert’s report and chose instead to focus on other areas of discovery” and that
“Plaintiffs cannot seriously argue they need to reopen this area of fact discovery, as
they have already issued their expert’s report, and his deposition is scheduled for
February 27, 2026.” (Id.). They argue that the scope of the requested deposition is
overbroad, onerous, prejudicial, and unduly burdensome in accordance with Rules
30(b)(6) and 26(b)(1). (Id., p. 4).
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In opposition, Plaintiff Durden insists that May 22, 2026 is the discovery
deadline, meaning that her request is four months in advance of the deadline, (Doc.
30, p. 2). She argues that the proposed deposition “will in no way endanger the
remaining deadlines or the current trial setting of September 28, 2026.” (Id.). She
insists that “[t]he deposition sought by Plaintiff will help clarify and eliminate issues
and this case and may likely assist the parties and The Court in bringing the case to
a just and timely resolution, while causing no prejudice to the Defendant.” (Id.). She
states that “[t]he purpose of discovery is to refine the case and to prepare it for trial
based on a full understanding of the relevant facts.” (Id. (citing Life Plans, Inc. v. Sec.
Life of Denver Ins. Co., 800 F.3d 343 (7th Cir. 2015))).
First, this Court notes that the original Scheduling Order issued on December
10, 2024 set the deadline for Defendant’s deposition as May 23, 2025. (Doc. 14).
Depositions of Plaintiff’s expert witness were to be taken by June 23, 2025. (Id.). On
May 19, 2025, the discovery deadline was pushed back to May 22, 2026. (Doc. 19). On
November 24, 2025, the expert report disclosure deadline was pushed back to
December 24, 2025 for the Plaintiff and April 10, 2026 for the Government. (Doc. 27).
The Government is correct that Plaintiff did not request the extension of any other
deadlines. (Doc. 28, p. 2). Plaintiff does not address this argument in her Response;
she only states that four months remain in the discovery window. (Doc. 30, p. 2).
Regarding the Government’s concerns about proportionality, Plaintiff does not
cite any caselaw for her proposition that the proposed deposition “will help clarify and
eliminate issues in this case” while not prejudicing the Government. (Id.). Moreover,
Plaintiff does not address the fact that she missed this Court’s deadline in accordance
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with the operative Scheduling Order (Doc. 19) to depose Defendant’s representative
by over four months.
This Court “enjoys extremely broad discretion in controlling discovery,” Jones
v. City of Elkhart, 737 F.3d 1107, 1115 (7th Cir. 2013), including to limit the scope of
discovery and require a specific sequence, Cloverleaf Golf Course, Inc. v. FMC Corp.,
No. 11-CV-190-DRH, 2011 WL 2838178, at *2 (S.D. Ill. July 15, 2011). See Steward
v. Honeywell Int’l, Inc., No. 3:18-CV-1124-SMY-MAB, 2019 WL 4954811 (S.D. Ill. July
9, 2019) (quoting and citing the same). First, this Court does not typically set separate
“fact” and “expert” discovery deadlines. Other district courts have noted that “[i]t is
often the case that after experts either prepare their reports or are in the process of
doing so, they identify additional factual inquiries they would like to make. If there
is a single discovery cutoff date, . . . the schedule can accommodate that situation.”
Ruiz-Bueno v. Scott, No. 2:12-CV-0809, 2014 WL 576400, at *4 (S.D. Ohio Feb. 12,
2014)
That being said, this Court is not moved by Plaintiff’s insistence that there are
still four months left in the discovery window and that the September 28, 2026 trial
date is not in jeopardy. (Doc. 30, p. 2). Discovery is not a free-for-all where any
scheduled event can take place at any time prior to the deadline. If that were the
case, this Court would not issue Scheduling Orders (to which the parties have agreed)
in order to streamline the process. Discovery was specifically sequenced in accordance
with this Court’s Case Management Procedures so that fact discovery (including the
parties’ depositions) would be completed one month prior to the first expert disclosure
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deadline.1 (Doc. 14, Ex. A). Common sense must be employed here; accepting the
argument that “there is plenty of time before trial” would “essentially restructure[]
the Federal Rules of Civil Procedure and make[] discovery deadlines set by the court
irrelevant.” Finwall v. City of Chicago, 239 F.R.D. 494, 501 (N.D. Ill.), objections
overruled, 239 F.R.D. 504 (N.D. Ill. 2006). This, clearly, cannot be the case.
Moreover, even if it had been timely filed, Plaintiff’s Notice of Deposition is
overbroad and not proportional to the needs of this case, especially in light of the fact
that Plaintiff’s expert reports have already been prepared. (Doc. 28, p. 2). Plaintiff
requests for Defendant to produce representatives to testify as to every aspect of the
decedent’s care during a two-week period, which likely encompasses dozens if not
hundreds of discrete actions taken by multiple medical subspecialities and care
teams. (Doc. 28, Ex. A). Put another way, it appears that Plaintiff’s requested
deposition is not based on a discrete factual question which arose during expert
discovery. Instead, it aims to obtain information on the entirety of the decedent’s care.
As the Government notes, this will require a drastic shift in priorities for the
Government to identify and prepare fact witnesses when expert discovery is already
in process; to require such a restructuring of the discovery process after fifteen
months of discovery would be prejudicial, inefficient, and counterproductive.
To that end, the Government’s Motion for Protective Order shall be granted
and the February 2, 2026 Notice of Deposition shall be quashed.
1 Moreover, just because each individual deadline is not included in this Court’s May 19, 2025 Order
(Doc. 19) does not mean that the established framework originally created by the December 10, 2024
Scheduling Order (Doc. 14) ceases to exist. When this Court alters the discovery deadline, all
associated subsidiary deadlines are also extended proportional to the final discovery and dispositive
motions deadlines.
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C ONCLUSION
For the reasons set forth above, the Government’s Motion for Protective Order
to Quash Plaintiff’s Untimely Notice of Deposition (Doc. 28) is GRANTED. Plaintiff’s
February 2, 2026 Notice of Deposition(s) of Designee(s) Under Federal Rule of Civil
Procedure 30(b)(6) is hereby QUASHED.
IT IS SO ORDERED.
DATED: March 24, 2026
s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge
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