Kissman, et.al. v. Ohno

• Court: District Court, Virgin Islands
• Decided: March 31, 2025
• Docket: 3:18-cv-00018
• Status: Unknown

Opinion

IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN

DENNIS KISSMAN and MARINA ) MANAGEMENT SERVICES, ) ) Plaintiff, ) ) Case No. 3:18-cv-0018 vs. ) ) ST. THOMAS MARINA CORPORATION ) and KOSEI OHNO, ) ) Defendants, ) ) and ) ) CROWN BAY MARINA, L.P., as a ) ) Nominal Defendant. ) APPEARANCES: LEE J. ROHN, ESQ.

LEE J. RO FH ON R P&L A AS INSO TIC FI FA T AE NS D COUNTER-DEFENDANTS DENNIS KISSMAN AND MARINA MANAGEMENT SERVICES ST. CROI FX O, VR I CR OG UIN N TIS EL RA -DND ES F ENDANTS NANCY KISSMAN, JANE WHERREN, AND MARINA STAFFING, INC.

ADAM NICHOLAS MARINELLI, ESQ. A.J. STONE, III, ESQ. LAW OF FFI OC RE S D O EF F EBNO DL AT N NTSA G STI .P TCH OMAS MARINA CORPORATION, KOSEI OHNO, AND CROWN BAY MARINA, L.P. ST. THO FM OA RS ,C UO.USN. VTEIR RG -PIN L AIS INLA TN IFD FS C ROWN BAY MARINA, L.P.

MEMORANDUM OPINION Robert A. Molloy, Chief Judge. BEFORE THE COURT is Plaintiff Dennis Kissman’s (“Plaintiff”) Motion for Protective Order and/or for a Stay of the Deposition Until the Court Rules on the Pending Motion for Protective Order, filed January 12, 2024, (ECF No. 368). Defendants St. Thomas Marina Case N2o. 31:148-cv-0018 M emorandum Opinion Page of opposition on January 15, 2024, (ECF No. 369), and Plaintiff replied on January 26, 2024, (ECF No. 371). Also, before the Court is CBM’s Motion for Sanctions and to Compel Production of Party Witness, filed on March 21, 2024, (ECF No. 372). Plaintiff responded in opposition on April 4, 2024, (ECF No. 377), and CBM replied on April 18, 2024, (ECF No. 379). Plaintiff petitions the Court for a protective order “and/or for a stay” postponing the deposition of Dennis Kissman (“Kissman”) until after the Court addresses CBM’s pending motion, (ECF No. 241), seeking to disqualify Plaintiff’s counsel. (ECF No. 368.) CBM, on the other hand, seeks to compel Kissman’s deposition and further moves the Court to impose sanctions upon Plaintiff for failure to appear for his “duly noticed deposition” that was scheduled for January 16, 2024. (ECF No. 372.) For the reasons discussed below, the Court will grant Plaintiff’s motion for protective order and will deny CBM’s motion for sanctions and to compel. I. BACKGROUND

Because the parties are intimately familiar with the underlying facts of this case, the Court wil l recite only those facts necessary for a disposition of the instant motions. On February22, 2021, CBM filed a motion to disqualify Plaintiff’s counsel, Attorney Lee J. Rohn, from representing Plaintiffs/Counter-Defendants and Marina Management Services, Inc.; Counter-Defendants Nancy Kissman, Jane Wherren, and Marina Staf�ing, Inc.; and Nonparty Witness Samantha Senger. (ECF No. 241.) That motion remains pending. Endeavoring to avoid a potentially unethical situation, counsel for Plaintiff expresses that she is reluctant to

proceed with the deposition of Kissman until after the matter of disqualification is resolved. (ECF No. 368 at 2.) Counsel maintains that she had expected the motion to disqualify to have Case N3o. 31:148-cv-0018 M emorandum Opinion Page of been decided by January 2024, and “reluctantly agreed to schedule Plaintiff’s deposition for JIadn. uary 16, 2024, expressly discussing that the disqualification should be decided by then.”

Plaintiff further contends in his Reply to Defendants’ Opposition to Motion for Protective Order that “a Notice of Deposition has to comply with a Case Management Order, 1 and there is none, and all deadlines have passed.” (ECF No. 371 at 3.) On June 16, 2022, the Court rescheduled the June 20, 2022 trial to October 31, 2022. (ECF No. 339.) On September 30, 2022, the Court adopted the Report and Recommendation of the Magistrate Judge, (ECF No. 146) and affirmed the Magistrate’s Order, granting Nominal Defendant Crown Bay Marina L.P.’s Motion for Leave to Join Additional Parties, Nancy Kissman, Jane Wherren and Marina Staffing Inc. The motion was denied insofar as it sought to add additional counterclaims. (ECF No. 343.) On October 27, 2022, the Court continued st the October 31 trial date ”to be determined in a subsequent trial management order.” (ECF No. 345.) Pursuant to Fed. R. Civ. P. 26(c)(1), Plaintiff certified that on July 12, 2024, he conferred with CBM in good faith to resolve this dispute, but CBM “declined to withdraw the deposition notice pending resolution of the motion to disqualify.” (ECF No. 368 at 4.) In opposition, CBM argues that Plaintiff must move forward with the deposition and should not be permitted to use the pending motion to disqualify “as a basis to stay discovery”

1 Plaintiff expresses befuddlement having “no idea how Defendants can claim they are simply complying with the Court’s Scheduling Order from March 25, 2020, that cut-off fact discovery on December 30, 2020. Currently, there is no Case Management Order.” (ECF No. 371 at 3.) The Court notes that following a pretrial video confer(ence held on January 28, 2021, the Court issued an Order later that same day in which it entered a new schedule, which extended the 2020 deadlines for fact discovery. The trial was scheduled to begin on June 20, Case N4o. 31:148-cv-0018 M emorandum Opinion Page of see generally at this late point in time. (ECF No. 369 at 6; ECF No. 367.) CBM contends that for the last few years Plaintiff’s counsel has essentially led them along by the nose with promises to schedule Kissman’s deposition and then either demurring or completely ignoring CBM’s efforts to set a date. (ECF No. 369.) CBM first requested to take Kissman’s deposition in September 2022. (ECF No. 372 at 2; ECF Nos. 372-1, 372-2.) After four follow- up emails to Plaintiff’s counsel were ignored, on July 19, 2023, Plaintiff’s counsel informed CBM’s counsel thatI dK.issman was undergoing a medical procedure and would not be available for a deposition. CBM’s counsel requested available dates “for someI dtime within the following ninety days.” Plaintiff’s counsel promised to do so, but never did. . After receiving no further communication from Plaintiff’s counsel for two months, CBM informed Plaintiff’s counsel via email on September 18, 2023, that if she did not provide Plaintiff’s availability in October 2023 that CBM would be forced to proceed with filing a unilateral Notice of

Deposition. After receiving no response, CBM served the notice oIfd d.eposition on September 21, 2023, setting the date of October 24, 2023, filed at ECF 360. CBM lIadt.e2r amended the Notice of deposition, (ECF No. 362), setting the date to October 31, 2023. On November 21, 2023, after three emails sent to Plaintiff’s counsel requesting confirmation of January 15, 2024, as the deposition dates, went unanswered, CBM informed Kissman’s counsel that 3 another unilateral noItdic.e of Kissman’s deposition would be filed. (ECF No. 369 at 4.) “That email was ignored.” Subsequent email attempts to confirm the location of Kissman for

2 CBM’s counsel contacted the Court pursuant to the Trial Management Order’s requirement to contact the Court for informal reIsdo. lution of discovery disputes prior to �iling any discovery related motions. (ECF 369 at 4.) At the hearing the Court instructed the parties that discovery remained open and that the deposition of Kissman n3eeded to be taken. Case N5o. 31:148-cv-0018 M emorandum Opinion Page of coordinsaetei nagls ologistics and providing a zoom conference link were also ignored. (ECF No. 369 at 4, 5; ECF No. 372-2.) Plaintiff �iled the instant motion for a protective order at 6:04 4 p.m. on January 12, 2024—a Friday evening, before a three-day holiday weekend , and four days before Kissman was scheduled to be deposed, Tuesday, January 16, 2024. (ECF No. 368 at 1; ECF No. 372 at 3.) CBM argues that Plaintiff had plenty of time to object or to file a motion for a protective order, but instead waited until the last minute “despite beseineg g ednuelyra nlloyt iced for [Kissman’s] deposition since November 30, 2023.” (ECF No. 369 at 6; ECF No. 367.) “[N]o formal objection, request for stay of discovery, or motion for protective order was made at any time during the [interim period] in which CBM has attempted to schedule and conduct the deposition of Dennis Kissman” or in “the nearly three years since the Motion to Disqualify Counsel [ECF No. 241] was �iled on February 22, 2021.” (ECF No. 369 at 3; ECF No. 372 at 3.) II. LEGAL STANDARD

“It is well established thLalto ythde v s. cHoOpeV EaNndSA c,o LnLdCu.c,t of discovery are within the sound discretionM aorf rtohqeu itnr-iMala cnoruiqrut.e”z v. I.N.S 369 F.3d 263, 27b4u t (s3ede LCaibr.M 2D0 0In4c). v(q. Buoobtiancgk ., 699 F.2d 129, 134 (3d Cir. 1983)); , 47 F.4th 164, 187 (3d Cir. 2022) (“But, of course, a district court's discretion is not unbounded. It abuses that discretion if it ‘interfere[s] with a substantial right[.]’”) (citation omitted). Rule 26 of the Federal Rules of Civil Procedure provides that:

Unless otherwise limited by court order, . . . [p]arties may obtain discovery regarding any nonpr ivileged matter that is relevant to any party's claim or Case N6o. 31:148-cv-0018 M emorandum Opinion Page of defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely bene�it. Fed. R. ACi.v . MP. o2t6io(bn) (fo1r). Protective Order When “[a] party or any person from whom discovery is sought” moves for a protective order, “[t]he district court has broad discretion to dFeecdiderea lw Phreatchtiecre aa npdr Porteoccteidvuer eorder is appropriate in the circumstances.” 2 Moore's Manfuoar lg--ood cause §15.04 (2025); Fed. R. Civ. P.26(c)(1). “The court may, , issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” however, “[t]he party seeking theC piprootlleocnteiv ve. Loirgdgeert tm Gursotu sph, oInwc .good cause by demonstrating a particceurlta. rd neeneiedd for protection." , 785 F.2d 1108, 1121 (3d Cir. 1986, , 484 U.S. 976, (1987); Fed. R. Civ. P. 26(c)(1) (emphasis added). For good cause to exist, the party seeking protecSthioinng maruas vt . sShkoilwes that disclosure will result in “a cleasrelye dalesfoin Geadr, dsnpeerc ivf.i cB aononde serious injury” , 420 F.3d 301, 306 (3d Cir. 2005); , No. 19-cv-5572, 2023 U.S. Dist. LEXIS 22536, at *8 (E.D. Pa. Feb. 9, 2023) (“The alleged injury must be ‘clearly defined and serious’ and ‘so unreasonable as to justify restricting discovery.’”)(citation omitted). In determining whether good cause exists for a protective order, courts employ a balancing test, weighing the requesting pSeaer,t ye.'gs .,n Peaends yfo vr. iBnofroorumgaht ioofn S targoauindssbt uthrge injury that might result if disclosures eies

caolsmopelled. Federal Practice and Procedu,r 2e3 F.3d 772, 786-87 (3d Cir. 1994); 2 Moore's Manual-- § 15.04 (2025) (“Under the balancing Case N7o. 31:148-cv-0018 M emorandum Opinion Page of standard, the district judge must compare the hardship to the party against whom discovery 5 is soughBt. aMgaointisot nth teo pCroombapteivle value of the information to the other party.”). “A court's decisions regarding the conduct of discovery, and whether to compel disclosure oMf iclehrotuasien vi.n Hfoeramthation, will be disturbed only upon a showing of an abuse of discretion.” Mar,r Noqou. 1in:1-M5-aCnVr-iq0u1e4z00, 2022 U.S. Dist. LEXIS 175305, at *7 (M.D. Pa. Sep. 27, 2022) (citing , 699 F.2d at 134). “Discovery requests may be curtailed to protect a person from whom discoveryIn irse Dsooumgehstt icf rDormyw 'aalnl nAonytiatnrucset, eLmitibga.rrassment, oppression, or undue burden or expense.’” , 300 F.R.D. 234, 238 (E.D. Pa. 2I0I1I.4 ) (qDuIoStCinUgS FSIeOd.N R . Civ. P. 26(c)(1)). A. Motion for Protective Order

Plaintiff, as the party seeking the protective orderS eteo Cpirpeocllluodnee Kissman’s deposition, bears the burden of demonstrating good cause to do so. at 1121 (citing Fed. R. Civ. P. 26(c)). As CBM points out, Plaintiff’s good cause—based on ethical concerns—is that “counsel will not jeopardize the Plaintiff or herself by going forward with the Plaintiff’s deposition while the cloud of a disquali�ication motion is pending.” (ECF No. 368 at 2.)

5 “[T]he following factors, which are neither mandatory nor exhaustive . . . may be considered in evaluating whether ‘good cause’ exists: 1) whether disclosure will violate any privacy interests; 2) whether the information is being sought for a legitimate purpose or for an improper purpose; 3) whether disclosure of the information will cause a party embarrassment; 4) whether confidentiality is being sought over information important to public health and safety; 5) whether the sharing of informJoartdioann va.m Sown. gE nlietriggayn Ctos. will promote fairness and efficiency; 6) whether a party benefitting from the order ofG lceonnmfieddeen Ttira. lCitoy. vis. Tah pomubplsico ne,n tity or official; and 7) whether the case involves issues important to the public.” , No. 3:20-CV- 414, 2021 U.S. Dist. LEXIS 10821, at *10-11 (M.D. Pa. Jan. 21, 2021)(citing 56 F.3d Case N8o. 31:148-cv-0018 M emorandum Opinion Page of For its part, CBM emphasizes that Plaintiff has represented having poor health, 6 emphasizing thaPtr toidmoex ,i sL LoCf t vh. eP ersosf'el nDcoec fuomr aecnqt uSierrivnsg. essential testimony in this matter. CBM further cites to , stating that “[w]hen an attorney knows of the existence of a dispute and unreasonably delays in bringing that dispute to the Courtth'es arettqeunetsito nfo ur nrteilli ethf em ealye vbeen dthe nhioedu ro, uthtrei gahtttornPeroyd hoaxs, LcrLeCa tve. dP rtohfe'l eDmoecrugmenencyt Sseitruvast.ion and Cardoza v.”. Bloomin' Brands, Inc. , 341 F.R.D. 679, 684 (D. Nev. 2022) (citing Prodox , 141 F. Supp. 3d 1137, 1143 (D. Nev. 2015) (emphasis added). In , the defendant had “filed a motion for protective order after hours the night before the deposition was set to take place and then did not show up for the deposition. . . . [The defendant] engaged in this tactic despiteI drepeatedly agreeing that Plaintiff could finish [the] dePproosdiutixon after the discovery cutoff.” . at 341 F.R.D. 679, 683 (D. Nev. 2022). The Court in denied the defendant’s motion for protective order and described the offending defendant’s behavior as "dredged up from the cesspool of 'Rambo' litigation [that] cannot bIed countenanced," and added that such conduct was “properly the subject of sanctions.” . at 684. After evaluation of the relevant guiding benchmarks, and upon careful consideration of the parties’ positions, the Court �inds that the threat of a potential ethical dFialelkmenmbae rigs cCraepditibally C aotr spt. avk. eD aankodt qau Caellil�uielas ras “clearly de�ined, speci�ic and serious injury.” See , Civil Action No. 95-351 MMS, 1998 U.S. Dist. LEXIS 13456, at *7-9 (D. Del. Aug. 4, 1998) (finding no cause justifying a protective order against taking

6 “As the Court is aware, one of the Kissmans has now passed away and CBM has reasonably asserted the immediate need of the preservation of testimony from the remaining member of Marina Management Services, Case N9o. 31:148-cv-0018 M emorandum Opinion Page of deposition where threats to disqualify were merely speculative threats made in communications between the parties and a motion to disqualify had not yet been filed). It is not lost on the Court that CBM’s motion to disqualify was filed in 2021 before fact discovery deadlines had passed, that CBM first attempted to schedule Kissman’s deposition in 2022, and that Plaintiff’s motion for a protective order was not filed until 2024—nearly three years after the motion to disqualify was filed. (ECF No. 368). And, as CBM points out, at no time during that three-year span did Plaintiff seek a stay or otherwise raise objections to furPthreord upxrosecution of this action—until now. (ECF No. 369 at 2.) However, distinguishable from , Plaintiff’sS meeotPiorond fooxr protective order was never denied before CBM scheduled Kissman’s deposition. at 684. Furthermore, CBM is fully aware of the ethical 7 implications looming under the shadow of its motion to disqualify. Turning to the timing of Plaintiff’s filing, Rule 26 does not specify a time period within which a protective order must be made. “In the case of a deposition, a party must file a motion for a RuleF 2ed6e(rca) lp Proratecctitciev ea onrdd Perr opcreidourr teo §t h1e5 t.0im4 e( 2th02e5 d)e. pAo sciotiuornt sish osueltd t o“ cboengsiind.e”r 2 a Mll ooof rteh'es Mciracnuumaslt-a-nces facing the parties” when making a determination of timeliness. Id.

7 For example, at the discovery conference held on October 26, 2023, the Court encouraged the parties to move forward with discovery and Plaintiff’s counsel expressed her hesitancy to schedule Kissman’s deposition before the motion to disqualify is ruled on because of the potential ethical problems. Also, in Plaintiff’s Response to Court ’s Order Setting Trial for October 31, 2022, �iled on July 19, 2022, Plaintiff states “Because of the failure to r ule on disquali�ication and other motions, depositions have not yet been conducted in this case.” (ECF No. 341.) Case N10o. 3:1184-cv-0018 M emorandum Opinion Page of Plaintiff filed the motion for protective order prior to the date set for Kissman’s deposition—granted, not much prior. However, Plaintiff had previously expressed her concerns in context of the motion to disqualify to both the Court and to CBM. CBM chose to move forward with scheduling the deposition and in response, Plaintiff chose to exercise the option to file a protective order. The Court finds good cause is established by the ethical implications at stake. The Court will grant Plaintiff’s motion and will stay the deposition of Dennis Kissman until CBM’s pending motion to disqualify is addressed. Because the Court grants Plaintiff’s protective order, it must deny CBM’s motion to compel Kissman’s deposition and does so without prejBu.d iScae.n ctions

The final issue before the Court concerns sanctions.

CBM asserts that it incurred “signi�icant expense leading up to and appearing for the duly noticed deposition of Dennis Kissman,” and that it is “entitled to all its costs, including attorney’s fees associated with the scheduling, preparing, and appearing for the deposition.” (ECF No. 372 at 6; ECF No. 379 at 3.) Given Plaintiff’s “signi�icant pattern of delay” stemming from a “consistently deployed strategy in this case” to avoid the deposing of Kissman, CBM asks the Court to impose sanctions upon Plaintiff’s counsel for “dilatory conduct” and a “bad faith approach to discovery.” (ECF No. 372 at 4, 6, 7; ECF No. 379 at 1, 3.) In her defense, Plaintiff’s counsel argues that she is the one who should be awarded

attorney fees “for having to respond to CBM’s Motion to Compel” that was �iled after discovery deadlines had passed and without leave of the Court. (ECF No. 377 at 10.) The Case N11o. 3:1184-cv-0018 M emorandum Opinion Page of deadline for fact discovery was August 30, 20s2e1e, gaennde aralll olyther discovery was to be completed by December 31, 2021. (ECF No. 377 at 5, 6; ECF No. 235.) In addition, Plaintiff argues that the Court previously acknowledged that the pending motion to disqualify colors other aspects of the case. (ECF No. 377 at 6, 7.) Counsel proffers that CBM “could have taken the Court’s lead and waited until the Court issued a decision on the disquali�ication motion” and set new deadlines “before moving to compel the deposition of Kissman.” (ECF No. 377 at 10.) ” Di GregoriToh ve. Ffuirnsctt Rioend ioscf osuanntc tCioornps is “to encourage adherence to discovery procedures. ., 506 F.2d 781, 19 Fed. R. Serv. 2d (Callaghan) 728, 1974 U.S. App. LEXIS 5574 (3d Cir. 1974). To avoid sanctions when seeking a protective order, the motion must be “substantially justified” in its filing. (Fed. R. Civ. P. 37(a)(5)(B); ECF 369 at 6.)

To counsel’s point, Federal R. Civ. P. 37 does provide for sanctions—including attorney fees—when a motion to compel is densiuebds. tFaendti aRll. yC jiuvs tPif.i e3d7,. However, sanctions may be avoided if “the [motion to compeIl]d .w as or other circumstances make 8 an award of expenses unjust.” (Emphasis added.) The Court finds that an award of

8 PAieprpcley vin. Ug ntdheisrw sotaonddard in a different context, the Supreme Court has defined substantial justice to mean “justified to a degree that could satisfy a reasoIdn.a Sbelee paelsrosoGnr,i”d oerr hv.a Kveinygst ao n“ree Haseoanltahb Plela bna Csiesn bt.o, tIhnc i.n law and fact.” , 487 U.S. 552, 565 (1988). “To be substantially justified means, of course, more than merely undeserving of sanctions for frivolousness.” , 580 F.3d 119, 140, n. 23 (3d Cir. 2009)("Substantial justification for the failure to make a S urenq Ruiivreerd Edniesrcgloys, uInrce. hv.a Ns eblseoenn regarded as justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the sdeies callososure [obligation]."); : Fed Civil Motion Practice, 800 F.3dS 1u2b1st9a, n1t2ia2l7ly-2 ju9s (t1if0ietdh Cir. 2015) (holding that "substantial justification" under Rule 37 means "justified to a degree thatN ceouumldo snatt vis. fFyl oar rideaasonable person"); 1 Moore's Answer Guide § 6.11 (“ means reasonable people could differ as to the appropriateness of the contested Case N12o. 3:1184-cv-0018 M emorandum Opinion Page of expenses to Plaintiff would be unjust here. Plaintiff waited until nearly three years after the motion to disqualify was filed before filing a protective order, and CBM provi des ample evidence of dilatoriness with emails that counsel repeatedly failed to respond to. As Plaintiff notes, CBM did not ask the Court’s permission to take Kissman’s deposition out of time pursuant to LRCi 26.5, however, Plaintiff herself participated with other discovery undeterred after deadlines had passed. As late as October 26, 2023, at the discovery hearing before Judge Ruth Miller, the parties discussed moving forward with discovery and the Court encouraged the parties to do so, even after counsel had expressed her concerns related to the pending motion to disqualify to the Court. Additionally, at the discovery conference on November 5, 2021—after the August discovery deadline had passed —the Court admonished the parties to take depositions. Ordinarily, Plaintiff’s unresponsiveness without any stay or protective order in place 9 amounts to conduct that is “properly the subject of sanctions.” CBM relied on repeated assurances of scheduling. However, CBM, too, waited a signi�icant period of time before �iling 10 its motion to compel. Furth ermore, CBM has been aware of counsel’s precarious dilemma 9 See Great W. Funding v. M Tenhdee Uls.oSn. Supreme Court and the Third Circuit have both upheld District Courts that have gone as far as dismissing complaints based on a party's unwillingness to cooperate in dGirsecaotv Wer.y F. unding v. Mendelson , 158 F.R.D. 339 (E.D a.f Pf'da. 1994). One of the factors Courts look at is ”the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery.” , 158 F.R.D. 339, 349 (E.D. Pa. 1994) , 68 F.3d 456 (3d Cir. 1995). “Examples of prejudice include the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or Acodsatms sim v.p Torsse. do fo tnh et hNe.J .o Bprpeowseinryg Epmarptlyo. yPereesj'u Pdeincsei oanls Tor i.n Fculunddes deprivation of information through n on-cooperation with discovery and costs expended obtaining court orders to force compliance with discovery.” , 29 F.3d 863, 867 (3d Cir. 1994). 10 CBM �irst sought Kissman’s deposition in 2022 and �iled its motion to compel in early 2024. “ A motion to compel generally should be brought at the time the unsatisfactory response is received. . . .As a general rule . . . motions to compel filed after the deadline for dispositive motions are considered to be untimely absent unusual circumstances. However, these are not bright-line rules. Courts have broad discretion to determine timeliness Case N13o. 3:1184-cv-0018 M emorandum Opinion Page of for some time, as well as the ethical pitfalls she was forced to navigate while the motion to disqualify remains pending. For the reasons discussed above, the Court finds that reasonable people could differ as to the aSpeper Goprirdiearte vn. eKsse yostf oPnlea iHnetiafflt’sh dPilsacno vCeernyt .,r eInqcu.est and therefore will not impose sanctions. , 580 F.3d 119, 140, n. 23 (3d Cir. 2009)(defining substantial justification). However, this is a warning. "Discovery is supposed to proceed with minimal involvement of the CoCuartr d. o. .z. aC ovu. nBsloeol m[foinr’ bBortahn sdisdes] should strive to be cooperative, practical and sensible . . ..” , 141 F. Supp. 3d 1137, 1145 (D. Nev. 2015) (citations omitted). Because both Plaintiff and CBM demonstrate substantial justi�ication in their respective actions, the Court will not impose sanctions on either party. The Court trusts that counsel will “strive to be cooperative, practical and sensible” in cooperating with one anIVo.t her CmOoNviCnLgU foSIrOwNar d.

For the reasons discussed above, the Court will grant Plaintiff’s motion for protective order, ECF No. 368, until the pending motion to disqualify in this matter has been addressed. The Court will not impose sanctions at this time and will deny CBM’s motion to compel, ECF No. 372, without prejudice.

Id. See, e.g.,Kendrick v. Heckler consider “[w]hether the delay was the product of gamesmanship or was it caused by good-faith efforts to secure the requested information through other means.” , 778 PFa.2tdri c2k5 3v,. 2T5e8a y(s5 tVha Clleiry. 1T9ru8s5t)e e(sd,e LlLaCy in bringing motion to compel production was excused where a portion of the delay occurred as a result of negotiations regarding voluntary disclosure of the requested documents); , 297 F.R.D. 248, 255 (N.D. W. Va. 2013) (plaintiff was justified in relying on defendant’s assurances that it would produce additional discovery and in waiting for further supplementation in an effort to resolve Case N14o. 3:1184-cv-0018 M emorandum Opinion Page of An appropriate Order follows. Dated: /s/ Robert A. Molloy ROBERT A. MOLLOY March 31, 2025