Friday, July 24, 2009
SFL Friday -- Southern Nights (and Grouts) Edition
Hi kids, yes it's Friday and yes I'm packing it in early. In fact, I'm taking the whole day off.
I hope you all get to sneak out early today too.
Did you all see this 11th Circuit opinion released yesterday on "late" discovery and amending the pleadings?
First of all, I love the name -- Southern Grouts.
Nothing namby-pamby like "Twombly" -- this is a Venetian Salami-worthy casename, ready to stand the test of time!
In a nutshell, the plaintiff took a corporate rep deposition after the date to amend pleadings, then sought to amend the complaint one month later, citing "new" discovery obtained at the deposition.
The district court refused, and it was affirmed by the 11th, in a pretty tough opinion. As part of the litany of reasons plaintiff's counsel lacked "diligence" on this issue, the 11th even noted that the corporate rep depo was moved once by plaintiff's counsel. That plus "waiting" a month to amend.
While overall I understand the court's affirmance, especially since plaintiff's counsel may have already had this information, I wonder whether the opinion is a bit too rarefied and perhaps lacks an appreciation of real-life practitioner concerns and how litigation unfolds in a busy law office on a daily basis.
Is moving to amend one month after an important deposition "waiting"? It takes some time to even get the transcript, then you have to amend the complaint and draft the motion. I don't know how much actual "waiting" was involved.
And depos are often rescheduled -- particularly important ones like a 30(b)(6), for reasons that have nothing to do with whether or not the lawyer really wants to take the deposition.
That said, I do agree that if you are already outside the amendment deadline you need to move quickly and probably should not be rescheduling the deposition except for emergencies.
In all, the opinion is worth a read to keep us all aware of how important these deadlines can be, and what "good cause" is and isn't to the 11th nowadays.
Hmmm, maybe I'll come in this morning after all.
Ok, now I'm officially worried -- I'll check in with you all later today.