Xerox Corporation v. Conduit Global, Inc.

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Xerox Corporation,
Plaintiff and
Counter Defendant,
v.
Conduit Global, Inc.,
Defendant and
Counter Claimant.
DECISION and ORDER
21-cv-6467
INTRODUCTION
Pedersen, M.J. Because Conduit Global, Inc. has failed to show
good cause to extend the motion to compel deadline, see Fed. R. Civ. P.
16(b)(4), the Court denies it leave to file an untimely motion to compel,
(ECF No. 109, May 30, 2025), and denies as moot Xerox Corporation’s
motion for a protective order, (ECF No. 113, May 30, 2025).
BACKGROUND
The following account is based on the exhibits in support of Con-
duit’s motion to compel. (ECF No. 111, May 30, 2025.) Shortly after the
Court issued the operative scheduling order setting April 29, 2025, as
the motion to compel deadline, (ECF No. 100 at 2, Feb. 17, 2025), Con-
duit served notice on March 7, 2025, that it would depose Steven Band-
rowczak, Xerox’s CEO, on April 15, 2025, (ECF No. 111-23; ECF No.
111-24 at 14–15). Xerox responded immediately that Mr. Bandrowczak
would 	not 	sit 	for 	a 	deposition 	until 	Conduit 	explained 	why 	his
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“deposition is necessary and what relevant information [Conduit] be-
lieve[s] he has so that [Xerox] can determine whether to seek a protec-
tive order.” (ECF No. 111-24 at 14.) Five days later, on March 12, Con-
duit replied that it would respond to Xerox’s email. (Id. at 12–13.) After
another five days, on March 17, Xerox again requested “Conduit’s posi-
tion with respect to Steve Bandrowczak.” (Id. at 11.) Nine days later, on
March 26, Conduit replied that Mr. Bandrowczak “is a key witness” and
that it “do[es] intend to take his deposition.” (Id. at 8–9.) The following
week, on April 3, Xerox repeated that it was awaiting Conduit’s “posi-
tion” concerning the deposition. (Id. at 6.) Later that day, Conduit re-
sponded that it “intend[ed] to move forward with Mr. Bandrowczak’s
deposition” but that it was “happy to discuss reasonable limitations on
the scope of his deposition.” (Id. at 3–4.) Conduit explained, among other
things, that it regarded “Mr. Bandrowczak’s testimony [a]s critical to”
the question whether “Conduit’s breach allegedly was ‘incurable.’” (Id.
at 4.)
On April 18, 2025, three days after the scheduled deposition date,
Xerox suggested times for the parties to meet and confer about the dis-
covery dispute but reiterated that it “continue[d] to disagree with [Con-
duit’s] position that Mr. Bandrowczak has relevant information regard-
ing the claims or defenses in this suit” and that it was “not agreeing to
produce him for a deposition at this time.” (ECF No. 111-24 at 2.) Ten
days later, on April 28, Xerox sought a time that day to discuss with
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Conduit its “request to take Steve Bandrowczak’s deposition.” (ECF
No. 111-25 at 2–3.) Conduit responded later that day that it would “fol-
low up” with Xerox about the deposition. (Id. at 2.)
Although the next day, April 29, 2025, was the motion to compel
deadline, 	that 	date passed without 	Conduit 	filing 	such 	a 	motion.
(See ECF No. 100 at 2.) The following day, Xerox filed a letter with the
Court requesting a conference to address the deposition dispute and not-
ing that the time for motions to compel had expired. (ECF No. 102 at 1–
2 n.3, Apr. 30, 2025.)
The Court ordered Conduit to respond to Xerox’s letter and to ad-
dress specifically “whether it believes an extension of the motion to com-
pel deadline is necessary and, if so, whether there is good cause for such
an extension under Fed. R. Civ. P. 16(b)(4).” (ECF No. 103, Apr. 30,
2025.) Conduit responded that it is entitled to depose Mr. Bandrowczak
and “request[ed] leave to file a cross-motion to compel [his] deposition.”
(ECF No. 104 at 6, May 8, 2025.) Despite the Court’s specific instruction,
however, 	Conduit 	did 	not 	address 	the 	extension 	issue 	under
Rule 16(b)(4). (See ECF No. 104.)
After a conference concerning this deposition dispute, the Court
concluded that motion practice was necessary. (ECF No. 107, May 16,
2025.) The Court instructed that, if Conduit were to file a motion to com-
pel, it “must address . . . whether an extension is needed under Fed. R.
Civ. P. 16(b)(4) since the applicable deadline has passed.” (Id.)
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Conduit 	then 	filed 	the 	pending 	combined 	motion 	to 	compel
Mr. Bandrowczak’s deposition and for relief from the scheduling order,
(ECF No. 109), and Xerox filed the pending motion for a protective order
precluding the deposition, (ECF No. 113). The parties submitted exten-
sive 	briefing 	on 	the 	motions. 	(ECF 	No. 110, 	May 30, 	2025; 	ECF
No. 113-18, May 30, 2025; ECF No. 117, June 13, 2025; ECF No. 119,
June 13, 2025; ECF No. 120, June 20, 2025; ECF No. 122, June 20,
2025; ECF No. 123, July 11, 2025; ECF No. 124, July 14, 2025.)
DISCUSSION
The Court declines to modify the operative scheduling order to
allow Conduit’s untimely motion to compel Mr. Bandrowczak’s deposi-
tion because Conduit has not shown “good cause” for its failure to comply
with that order. Fed. R. Civ. P. 16(b)(4). “A schedule may be modified
only for good cause and with the judge’s consent.” Id.; see also Hon. Jer-
emiah J. McCarthy, Rule 16(B)(4): Is “Good Cause” a Good Thing? Why
I Hate Scheduling Orders, 16 Fed. Courts L.R. 1 (2024) (discussing the
components of “good cause” under Rule 16). As the Court warned in the
operative scheduling order, “The Court will deny any extension re-
quest that fails to show diligence.” (ECF No. 100 at 3.) That is be-
cause, as the Court explained, “a finding of ‘good cause’ depends on the
diligence of the moving party.” Parker v. Columbia Pictures Indus., 204
F.3d 326, 340 (2d Cir. 2000). (See ECF No. 100 at 3–4.) Moreover, the
Court warned the parties further that “[w]hen seeking an extension of
any deadline in this scheduling order, the parties must file a motion,
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or letter motion, before the deadline that shows good cause.”
(ECF No. 100 at 3.)
Here, Conduit was required to comply with that directive and
seek an extension to file a motion to compel before April 29, 2025, the
relevant deadline, because the need for a motion to compel was foresee-
able at that point given the parties’ unresolved deposition dispute. (ECF
No. 100 at 2.) Indeed, more than a week before the April 29 deadline,
Conduit was on notice that judicial intervention could be necessary be-
cause Xerox reiterated on April 18—after the noticed deposition date—
that it “continue[d] to disagree with [Conduit’s] position that Mr. Band-
rowczak has relevant information regarding the claims or defenses in
this suit” and that it was “not agreeing to produce him for a deposition
at this time.” (ECF No. 111-24 at 2.) But Conduit did not move in a
timely manner to extend the motion to compel deadline. (See ECF No.
100 at 3.) Thus, it failed to act diligently.
Although Conduit maintains that “numerous grounds” justify ex-
tending that deadline, none of its arguments has merit. (ECF No. 110 at
23-24.) First, Conduit appears to contend that it was excused from
timely motion practice because, in its view, “Xerox was required under
Fed. R. Civ. P. 37(d) to seek a protective order in advance of the deposi-
tion 	date.” 	(ECF 	No. 110 	at 	24 	(citing 	Fed. 	R. 	Civ. 	P. 	37(d)(2)).)
Rule 37(d) provides that a failure to appear at a deposition may be “ex-
cused” from sanctions “on the ground that the discovery sought was
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objectionable” only if “the party failing to act has a pending motion for a
protective order.” Fed. R. Civ. P. 37(d)(2). But neither Rule 37 nor any
of Conduit’s cited cases suggests that a party resisting a deposition must
seek a protective order, let alone that the absence of such a motion ex-
cuses an opposing party’s failure to move in a timely manner for an ex-
tension of the motion to compel deadline. (See ECF No. 110 at 24.)
Second, Conduit asserts that it “was required under Fed. R. Civ.
P. 37(a)(1) to complete the meet and confer process before it could file a
motion to compel.” (ECF No. 110 at 25.) Contrary to that assertion, how-
ever, Rule 37 permits a motion to compel if a party has either “conferred
or attempted to confer” to avoid the need for “court action.” Fed. R. Civ.
P. 37(a)(1) (emphasis added). And regardless, Conduit could have filed
a timely motion to extend the motion to compel deadline, in compliance
with the scheduling order, while meeting and conferring.
Third, Conduit contends that good cause exists to extend the mo-
tion to compel deadline given the “minimal, one week period” between
the deadline and Conduit’s May 8, 2025, letter to the Court concerning
the deposition dispute. (ECF No. 110 at 25.) But Conduit has not shown
good cause for not abiding by the Court’s instruction to move for an ex-
tension before the deadline. (See ECF No. 100 at 3.) And in its May 8
letter, (ECF No. 104), Conduit ignored the Court’s direction to address
the timeliness issue, (ECF No. 103).
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Finally, Conduit argues that permitting an untimely motion to
compel would not prejudice Xerox. (ECF No. 110 at 26.) But Conduit
does not cite any authority suggesting that lack of prejudice is sufficient
reason to extend a scheduling deadline where the moving party has not
shown good cause under Rule 16(b)(4) for an extension.
In sum, because Conduit has not shown good cause for modifying
the operative scheduling order, the Court declines to extend the deadline
to permit Conduit’s untimely motion to compel Mr. Bandrowczak’s dep-
osition.
CONCLUSION
Accordingly, the Court denies Conduit’s motion for relief from the
scheduling 	order 	to 	file 	an 	untimely motion 	to 	compel 	Mr. Band-
rowczak’s deposition, (ECF No. 109), and denies as moot Xerox Corpo-
ration’s motion for a protective order precluding the deposition, (ECF
No. 113).
IT IS SO ORDERED.
Dated: 	August 20, 2025
Rochester, NY 	/s/ Mark W. Pedersen
MARK W. PEDERSEN
United States Magistrate Judge
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