In Lufthansa Cargo AG v. Total Airport Services, 12 CV 4869 (E.D.N.Y. Oct. 24, 2014), Magistrate Judge Roanne L. Mann granted defendant’s motion for reconsideration to the extent of deferring decision on the admissibility of evidence and denied reconsideration of the motion to reopen discovery. Magistrate Judge Mann had denied defendant’s motion to reopen fact discovery after defendant had fortuitously discovered new evidence during a court-ordered inspection of an aircraft outside the bounds of the authorized inspection and five months after the close of discovery.
Defendant argued that it should be allowed to reopen discovery because plaintiffs’ Rule 30(b)(6) witness, Dieter Hammer, had testified that Lufthansa did not fly with repaired aircraft, but admitted that he was not knowledgeable about structural damage or related repairs. A subsequent 30(b)(6) witness, Andreas Grubert, gave testimony that appeared to contradict Hammer. The newly discovered evidence indicated that Lufthansa may indeed have flown aircraft following structural repairs.
Magistrate Judge Mann refused to reopen discovery because defendant had not been diligent in pursuing additional information from plaintiffs following the contradictory testimony given by Hammer and Grubert. A court-ordered scheduling order may be modified under Federal Rule of Civil Procedure 16(b)(4) only for “good cause,” and “good cause depends on the diligence of the moving party.” Slip op. 6. Here, defendant did not seek documents and answers to interrogatories concerning other repairs for structural damage to plaintiffs’ fleet of aircraft before discovery closed, thus a fortuitous finding during a post-discovery inspection did not demonstrate adequate diligence to convince the court to reopen discovery long after it ended.
Concerning the admissibility of the fortuitous evidence gathered during the inspection of the aircraft, the court concluded:
that the balancing of the probative value of such evidence as against any prejudice resulting from its admission is more appropriately deferred until the time of trial; the presiding judge will then be in a position to consider the testimony already adduced at trial in assessing the admissibility of the proof in question.
Slip op. 10.