Fernandez v. Tequilas Inc. et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-01382-GPG-SBP
JOSE PABLO FERNANDEZ,
Plaintiff,
v.
TEQUILAS INC., et al.,
Defendants.
ORDER ON DISCOVERY DISPUTES
Susan Prose, United States Magistrate Judge
This matter is before the court after the parties contacted the undersigned magistrate
judge regarding yet another set of discovery disputes. The court asked the parties to submit a
joint discovery statement summarizing their disputes and respective positions on each issue.
Rather than filing a single statement, the court received a “joint” statement from plaintiff (“Mr.
Fernandez”), a memorandum from three defendants the court will collectively refer to as
“Rosita’s”, and a third memorandum from the remaining defendants (“Defendants”). Based on
those submissions, there are three issues for the court to resolve.
Background
Issue #1. The first issue concerns whether Defendants have disclosed all relevant
insurance policies. Mr. Fernandez maintains that Defendants have fallen short of the disclosure
requirements contained in Federal Rule of Civil Procedure 26(a)(1) and raises the specter of bad
faith and a violation of Rule 26(g)(3). For their part, Defendants insist that they have made their
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disclosures in good faith and tell the court that they are prepared to supplement their disclosures
of any insurance policies. Because the parties failed to prepare a joint discovery statement, the
court cannot assess whether Mr. Fernandez is satisfied with this arrangement. Moreover, because
Mr. Fernandez claims damages from 2018 but has also indicated that he may pursue damages
from as far back as 1999, the court still cannot fully grasp the extent of the issue at hand as Mr.
Fernandez does not make clear whether he seeks insurance policies from 2018, 1999, or some
other date.
Issue #2. The next issue goes to the scheduling of depositions. Mr. Fernandez intends to
take 30 depositions (28 having already been noticed) but complains that Defendants have failed
to engage in the scheduling of these depositions. Mr. Fernandez has scheduled most, if not all, of
the noticed depositions for February 10 through 24, but Defendants insist that they were not
consulted before Mr. Fernandez selected these dates. Furthermore, Defendants note that Mr.
Fernandez has noticed more depositions than his allotment under Rule 30(a)(2)(A)(ii).
Defendants then ask that the court extend the discovery deadline to allow the parties to schedule
the remaining depositions. Additionally, Rosita’s raises a dispute regarding the scheduling of Mr.
Fernandez’s deposition, saying that he has not responded to its attempts to find a date for his
deposition.
Issue #3. Lastly, Rosita’s and Mr. Fernandez trade allegations of insufficient responses to
discovery requests, but neither provides any detail as to the alleged insufficiencies.
Analysis
The court begins by observing that the parties’ inability to comply with the court’s
request for a joint discovery statement is emblematic of why the parties have had so many
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disputes requiring intervention by this court. The parties’ disjointed discovery statements
severely hamper the court’s ability to informally resolve the parties’ disagreements. There is
good reason for requiring the parties to work together and to provide a single, joint statement.1
First and foremost, a joint statement requires the parties to collectively settle on how to frame the
issues to be resolved. This is critical for the court’s purposes because it helps ensure a dispute is
clear and focused on what is genuinely at issue. Second, requiring the parties to come together to
prepare a statement provides a final opportunity for them to find a collaborative solution without
the need for the court’s involvement.
Compounding this, the parties have included several barebones descriptions of disputes
that simply inform the court that a dispute exists but nothing more. While the court’s informal
discovery dispute procedures are meant to save the parties the time and resources that would be
required by formal motions practice, the court still needs to understand what it has been called on
to sort out. Without a sufficient understanding of the issues before it, it is impossible for the court
to provide meaningful guidance or to actually try and resolve a dispute.
The court now turns to the present disputes. Regarding the disclosure of insurance
policies and related documents, IT IS ORDERED that Defendants shall make a good-faith
effort to supplement their disclosures by no later than February 21, 2025. After Defendants have
supplemented, counsel for all parties shall confer by telephone or videoconference to discuss
1 Mr. Fernandez labeled his statement as “joint,” however, the signature block on his statement
only contains the names of his attorneys, and there appears to have been no input from any of the
defendants per the memoranda from Rosita’s and Defendants. The court does not believe that
Mr. Fernandez intended to mislead the court, however, his statement had that effect. The court
hopes that the parties keep this in mind for future submissions to the court.
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whether the disclosures are sufficient. The parties shall then file, by no later than March 7, 2025,
a single status report with signatures from each party indicating whether this issue has been
resolved.
As to the scheduling of depositions, the court notes that the Scheduling Order, ECF
No. 83, states that “[t]he Parties shall be limited to 5 depositions per party.” Id. at 14. A review of
the docket indicates that Mr. Fernandez has not sought—nor has the court granted—leave to take
more than five depositions. To their credit, Defendants appear willing to stipulate to additional
depositions if Mr. Fernandez shows good cause and confers regarding scheduling. Again,
because the parties have not prepared a joint statement in the manner the court anticipated, Mr.
Fernandez has not addressed the issue of the number of depositions or Defendants’ proposed
compromise.
IT IS ORDERED that the deadline for discovery is extended to May 29, 2025, and all
depositions noticed by Mr. Fernandez and Mr. Fernandez’s own deposition are stayed. The
parties are directed to confer and to arrive at a number of depositions to which the parties can
stipulate. They shall also confer regarding the dates of any deposition agreed to (including the
date of Mr. Fernandez’s deposition). The parties shall notify the court in their joint status report
due March 7 whether they reached a consensus on the number of depositions and their
scheduling. Absent an agreement on both issues, the parties will be required to attend an in-
person hearing on March 13, 2025, where the court will unilaterally set the number of
depositions to be taken and the dates of those depositions.
The last issue before the court is the claims of insufficient discovery responses between
Rosita’s and Mr. Fernandez. In recent months, counsel for both sides have levied increasingly
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grave accusations against one another. The court is troubled by this and sincerely hopes that
counsel can return to a state of civility in their professional interactions. To aid in this, and to
help resolve any issue regarding insufficient discovery responses, counsel for both parties shall
meet in person by no later than February 21, 2025, to discuss their discovery disputes and to
establish a plan for completing the remainder of this litigation in a professional manner.2 Counsel
shall then file a joint status report by February 26, 2025, describing the details of their meeting
(such as when and where they met), the topics of their conversation, and how they resolved or
plan to resolve the discovery dispute between their clients.
Finally, the court reiterates its disappointment that the parties have not consistently
exhibited the cooperation or professionalism that the court expects during discovery. ECF
No. 171 at 5. While the court believes that the measures adopted in this Order are sufficient to
ensure the completion of the discovery process without additional disputes, should the parties
prove the court mistaken, they are on notice that the court will consider issuing a
recommendation that Judge Gallagher appoint a special master to oversee the remainder of
discovery.
For these reasons, the court ORDERS as follows:
(1) Defendants shall supplement their initial disclosures by February 21, 2025;
(2) The discovery deadline is extended to May 29, 2025;
(3) The parties shall confer by videoconference or telephone and submit a joint status
report by no later than March 7, 2025, regarding the sufficiency of Defendants’ supplemental
disclosures, the number and dates of depositions to be taken by Mr. Fernandez, and the date of
2 Only one attorney for each side need attend.
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Mr. Fernandez’s deposition; and
(4) Counsel for Rosita’s and Mr. Fernandez shall meet in person by February 21, 2025,
and submit a joint status report by no later than February 26, 2025.3
DATED: February 6, 2025 	BY THE COURT:
______________________________
Susan Prose
United States Magistrate Judge
3 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection
will result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
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