Benson v. Sallie Mae

RESPONSE to Motion re MOTION for Extension of Time for filing Affidavits of Records Custodians Response

D.S.C.October 7, 2010

1 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA ANDERSON DIVISION ANNIE MASON BENSON, ) ) Plaintiff, ) Case No. 8:10-CV-00497-JMC ) vs. ) ) SALLIE MAE, INC. ) ) Defendant. ) DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR EXTE NSION OF TIME FOR FILING AFFIDAVITS OF RECORDS CUSTODIANS AND REQ UEST REGARDING CONFERRAL Defendant Sallie Mae, Inc. (“Sallie Mae”), by counsel, hereby files its Response to Plaintiff’s Motion for Extension of Time for Filing Affidavits of Records Custodians, and states as follows: 1. On May 4, 2010, the Court entered its Scheduling Order, requiring parties to file affidavits of records custodians on or before September 30, 2010. (Docket No. 10). 2. On September 29, 2010, Defendant filed an affidvit pursuant to the Court’s scheduling order. (Docket No. 22). 3. In the afternoon of September 29, 2010, Plaintiff’s counsel contacted Defendant to inquire whether Defendant would agree to an extension of the affidavit of records custodian filing deadline. Defendant’s counsel informed Plaintiff’s counsel that, although it was late in the day, Defendant’s counsel would contact Defendant’s representative to determine whether Defendant consented to the extension. 8:10-cv-00497-JMC Date Filed 10/07/10 Entry Number 25 Page 1 of 4 2 4. Plaintiff sought to extend the deadline, by forty (40) days, to November 10, 2010, allowing only nineteen (19) days until the close of discovery on November 29, 2010, to conduct any follow-up discovery needed to respond to the abovementioned affidavits. 5. Later in the evening of September 29, 2010, Plaintiff’s counsel filed the instant Motion, before Defendant had responded to her request for an extension. 6. Defendant, if given the opportunity to respond, would have taken the position that some extension was appropriate to file affidavits of record custodians, but would have suggested that the deadline fall thirty (30) days before the close of discovery. Defendant would have been willing to engage in further negotiation from that starting point, if necessary. 7. The last-minute request for an extension before the filing of this Motion continues a pattern of such last-minute requests by Plaintiff’s counsel. The eleventh-hour nature of these requests deprives Defendant of the opportunity to engage in any meaningful conferral; indeed, Defendant’s counsel often cannot even reach the client in the few hours allowed. This does not comply with the spirit of Local Rule 7.02, requiring the parties to confer before non-dispositive motions are filed. In the interest of conducting a meaningful meet-and-confer process, Defendant respectfully requests that Plaintiff provide a reasonable period of time in light of the issue being addressed, but in no event less than twe ty-four (24) hours, for Defendant to consider, and respond to, a request for conferral before filing any motion. {Signature follows on next page} 8:10-cv-00497-JMC Date Filed 10/07/10 Entry Number 25 Page 2 of 4 3 Dated this 7th day of October, 2010. Respectfully submitted, By: s/ Peter B. Murphy Peter B. Murphy (Fed. I.D. #9917) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 300 North Main Street Post Office Box 2757 Greenville, South Carolina 29602 Telephone: (864) 271-1300 Facsimile: (864) 235-4754 E-Mail: Peter.Murphy@odnss.com and Bonnie L. Martin (admitted pro hac vice) (Indiana No. 20248-18) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 111 Monument Circle Suite 4600 Indianapolis, IN 46204 Telephone: (317) 916-1300 Facsimile: (317) 916-9076 E-Mail: Bonnie.Martin@odnss.com Attorneys for Defendant Sallie Mae, Inc. 8:10-cv-00497-JMC Date Filed 10/07/10 Entry Number 25 Page 3 of 4 4 CERTIFICATE OF SERVICE I hereby certify that on this 7th day of October, 2010, I electronically filed the foregoing DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR EXTE NSION OF TIME FOR FILING AFFIDAVITS OF RECORDS CUSTODIANS AND REQ UEST REGARDING CONFERRAL with the Clerk of Court using the CM/ECF system, and that a copy has been electronically served via CM/ECF on Penny Hays Cauley, Esq. HAYS CAULEY , P.C. 549 West Evans Street, Suite E Florence, SC 29501 Leonard A. Bennett, Esq. CONSUMER LITIGATION ASSOCIATES 12515 Warwick Boulevard Suite 100 Newport News, VA 23606 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 300 North Main Street Post Office Box 2757 Greenville, South Carolina 29602 Telephone: (864) 271-1300 Facsimile: (864) 235-4754 E-Mail: Peter.Murphy@odnss.com and Bonnie L. Martin (admitted pro hac vice) (Indiana No. 20248-18) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 111 Monument Circle Suite 4600 Indianapolis, IN 46204 Telephone: (317) 916-1300 Facsimile: (317) 916-9076 E-Mail: Bonnie.Martin@odnss.com By: s/ Peter B. Murphy Peter B. Murphy Attorneys for Defendant Sallie Mae, Inc. 9236576.1 (OGLETREE) 8:10-cv-00497-JMC Date Filed 10/07/10 Entry Number 25 Page 4 of 4