The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
IN RE: GEISINGER SYSTEM No. 4:21-CV-00196
SERVICES AND EVANGELICAL
COMMUNITY HOSPITAL (Chief Judge Brann)
HEALTHCARE WORKERS
ANTITRUST LITIGATION
MEMORANDUM OPINION
JANUARY 10, 2024
I. BACKGROUND
Currently before the Court is Defendants’ Motion for Leave to Take the
Deposition of Danese Brokenshire.1 Defendants’ Motion is the latest salvo in an
ongoing discovery dispute regarding Plaintiffs’ document productions, which itself
is just one of several such disputes the Court has been asked to mediate. Previously,
Defendants requested, and the Court granted permission to conduct additional
depositions of certain Plaintiffs, including Kevin Brokenshire. As to Mr.
Brokenshire, Defendants emphasized that the “paucity” of his productions raised
concerns regarding their completeness.2
Having taken Mr. Brokenshire’s deposition for a second time, Defendants
now insist that they need to depose his wife, Danese, regarding her role in ensuring
that Mr. Brokenshire fulfilled his obligations to collect and preserve documents
1 Mot. for Leave, Doc. 160.
relevant to the litigation. Defendants’ Motion is fully briefed and ripe for
disposition.3
II. LAW AND ANALYSIS
Federal Rule of Civil Procedure 16(b)(4) provides that a scheduling order
“may be modified only for good cause and with the judge’s consent.” “This authority
extends to requests to reopen discovery”4 and the decision whether to do so is within
a district court’s broad discretion to manage discovery.5 The United States Court of
Appeals for the Third Circuit has instructed that the “good cause” inquiry “focuses
on the moving party’s burden to show due diligence.”6 Accordingly, “if the moving
party ‘was not diligent, there is no ‘good cause’ for modifying the scheduling
order’”7 and “the inquiry should end.”8
Defendants’ argument that they have exhibited the requisite due diligence
rests on their assertion that they did not learn of Ms. Brokenshire’s role in the
preservation of Mr. Brokenshire’s documents until he was deposed on December 6,
3 Def. Br. in Supp. (“BIS”), Doc. 161; Pl. Opp. Br. (“BIO”), Doc. 165; Def. Reply, Doc. 169.
4 In Re Chocolate Confectionary Antitrust Litigation, No. 1:08-MDL-1935, 2013 WL 3873225
at *2 (M.D. Pa. July 25, 2013) (Connor, J.) (citing Aamco Transmissions, Inc. v. Marino, 1991
WL 40336 (E.D. Pa. Mar. 19, 1991)).
5 LeBoom v. Lancaster Jewish Cmty. Ass'n, 503 F.3d 217, 235 (3d Cir.2007); Sempier v.
Johnson & Higgins, 45 F.3d 724, 734 (3d Cir.1995).
6 Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 (3d Cir. 2010); accord
Premier Comp Sols., LLC v. UPMC, 970 F.3d 316, 319 (3d Cir. 2020)
7 Banks v. City of Philadelphia, 309 F.R.D. 287, 290 (E.D. Pa. 2015) (quoting Chancellor v.
Pottsgrove Sch. Dist., 501 F.Supp.2d 695, 701 (E.D.Pa.2007)).
8 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992).
2023.9 However, as Mr. Brokenshire points out, he had testified during a July 2023
deposition that he had relied on his wife to ensure that he fulfilled his document
collection and preservation obligations:
Q: Mr. Brokenshire, what have you done—what—what have you done
to ensure that you have preserved all documents related to the subject—
to the matters related to this case since January or February 2021?
A: Well, to be honest with you, I got married; she handles all the
paperwork.
Q: Mr. Brokenshire, is it your testimony that your wife is ensuring that
you are preserving all documents as of January or February 2021
regarding the matters of this case?
A: That is what I’m stating—
Q: Could you please repeat that response?
A: That is what I’m stating.10
Defendants argue that “one exchange during Kevin Brokenshire’s prior
deposition” is insufficient to impute Defendants’ knowledge that his wife
“undertook all of his collection and preservation obligations on his behalf.”11
The Court might find Defendant’s arguments more persuasive had they not,
on September 8, 2023, cited Mr. Brokenshire’s July 2023 testimony in a letter to the
Court in which they asserted that he had not complied with his discovery
obligations.12 In that letter, Defendants argued that Mr. Brokenshire had not lived up
9 BIS 7.
10 BIO 8 (quoting Brokenshire Dep. Tr. Vol. II, Opp. Ex. 2, Doc. 165-2 364:13-367:1).
11 Reply 2.
12 Sept. 8, 2023 Letter, Doc. 135 at 3-4.
to his discovery obligations because he had not made productions from, among other
sources, his wife’s email account and computer.13 In another letter to the Court filed
a month later, Defendants repeated their claims that Mr. Brokenshire failed to
produce documents from certain sources, again including his wife’s computer, and
charged Plaintiffs collectively with “deliberately depriv[ing] Defendants of
information that is diametrically opposed to the allegations in their Complaint.”14 In
sum, Defendants suggest that, though they apparently learned of several previously
unsearched sources of discoverable information during Mr. Brokenshire’s
deposition, they could not be expected to understand Mr. Brokenshire’s unequivocal
testimony that his wife was ensuring he was fulfilling his document collection and
preservation obligations to mean exactly that.15
The Court is also unmoved by Defendants’ attempt to minimize this testimony
as “one exchange” during the deposition. Putting aside that the relevant testimony
was elicited as part of a direct question by counsel, Mr. Brokenshire was asked
several questions regarding his wife’s involvement including what she had done to
ensure documents had been preserved and the extent to which he could be contacted
through his wife’s email, which he could not access.16
13 Id.
14 Oct. 6, 2023 Letter at 5.
15 Cf. BIS 2 (“While Defendants may have been aware that Mr. and Ms. Brokenshire shared email
accounts and devices, they could not have been aware that Mr. Brokenshire would not be able
to offer any testimony whatsoever as to his specific preservation efforts.”).
16 Brokenshire Dep. Tr. Vol. II 365:15-371:18.
Defendants insist that they “have sought specific information regarding
Plaintiffs’ preservation and collection efforts” “[f]or more than a year.”17 They
suggest that their efforts have been stymied, not by a lack of diligence, but by
Plaintiffs’ conscious efforts to deceive Defendants. To be sure, the Court takes a
jaundiced view of Plaintiffs’ approach to discovery. Indeed, it was for that reason
that the Court required Plaintiffs to provide more fulsome responses to written
discovery requests and permitted Defendants to conduct additional depositions.
However, discovery must come to an end and generalized concerns regarding
potential spoliation are not grounds to delay it any further. The Court has already
afforded Defendants the opportunity to conduct additional discovery regarding those
concerns and will not permit them to belatedly venture down a different path after
having come to a dead end.
III. CONCLUSION
For the foregoing reasons, the Court will deny Defendant’s Motion for Leave
to Take the Deposition of Danese Brokenshire.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge
17 BIS 1.