Buchl et al v. Gascoyne Materials Handling & Recycling, L.L.C.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
James Buchl and Doren Chatinover, 	)
)
Plaintiffs, 	) 	ORDER RE PLAINTIFFS’
) 	MOTION FOR RELIEF FROM
vs. 	) 	PRIOR ORDERS
)
Gascoyne Materials Handling & 	)
Recycling, LLC, 	) 	Case No. 1:17-cv-048
)
Defendant. 	)
____________________________________________________________________________
Before the court are plaintiffs’ motions seeking, among other things, (1) relief from the
court’s progression order so that they may depose defendant’s accounting firm, and (2) a
modification of the court’s prior order with respect to its “attorneys eye only” designation for certain
of defendant’s accounting information produced during discovery. Defendant opposes the motions.
Plaintiffs argue with respect to the first part of their motion that defendant was not fully
responsive to its Fed. R. Civ P. 30(b)(6) deposition notice in that the person designated to respond
to the identified areas of inquiry was not able to fully respond—deferring in a number of instances
to defendant’s outside accountants for responsive information. Defendant argues that it had fully
informed plaintiffs that its accountants had discoverable information and that it is too late in the
game now for plaintiffs to be able seek fact discovery from them. Defendant also argues that the
outside accountants will be defendant’s experts and that any deposition of them now is premature
under the court’s progression order.
While defendant’s outside accountants may be designated as expert witnesses, they are also
fact witnesses in that they did accounting with respect to a number of matters in dispute. Further,
after considering the record evidence submitted in support of plaintiffs’ motion, the court concludes
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that providing relief from the fact-discovery deadline to enable to plaintiffs to obtain from
defendant’s outside accountants responsive information to the areas of inquiry identified in their
Rule 30(b )(6) deposition notice is appropriate.
With respect to that part of plaintiffs’ motion seeking relief from the court’s prior order
permitting both parties to designate certain material as “attorney eyes only,” the court concludes that
some relief is appropriate in that the court’s prior order has made it too difficult for plaintiffs to
assist in the prosecution of their case as to certain of defendant’s accounting information and that
defendant will be adequately protected by its ability to designate that information as “confidential.”
Based on the foregoing, plaintiffs’ motions for relief from the court’s prior orders (Doc. Nos.
101 and 113) are GRANTED IN PART as follows:
1. 	The court grants relief from the its progression order limited to the extent that
plaintiffs may depose defendant’s outside accountants. 	However, the areas of
inquiry will be limited to those for which prior defendant witnesses were unable to
provide information responsive to the Rule 30(b)(6) deposition notice areas of
inquiry. The deposition of defendant’s accountants shall be completed prior to May
30, 2020. Plaintiffs may subpoena defendant’s accountants if necessary but may not
seek documents.
2. 	The court’s June 25, 2019 discovery order is modified as follows: Information from
defendant’s Quickbooks accounting system that defendant represents applies to its
GMHR Field Serviced division shall be treated as “confidential” under the court’s
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prior orders rather than “attorney eyes only.” 1 Plaintiffs may not retain possession
after the entry of a final non-appealable judgment of defendant’s Quickbooks
information treated as “confidential” under this and the court’s prior orders and must
otherwise 	strictly 	comply 	with 	court’s 	prior 	orders 	covering 	“confidential”
information.
IT IS SO ORDERED.
Dated this 20th day of February, 2020.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr.
United States Magistrate Judge
1 The court’s prior order permitted plaintiffs’ forensic experts to inquire of plaintiffs about specific information
designated “attorney eyes only” that plaintiffs’ experts believe may reasonably relate to the activities of defendant’s
GMHR Field Services division.. This provision remains in effect for any of defendant’s Quickbooks accounting
information that defendant claims is not related to its GMHR Field Services Division.
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