United States District Court, D. Massachusetts
ORDER ON MOTION TO COMPEL AND ORDER TO SHOW
H. HENNESSY UNITED STATES MAGISTRATE JUDGE
plaintiff in this automobile accident case Nana Amoah
(“plaintiff”) seeks an order compelling certain
discovery from defendants Dennis McKinney and Smith Transport
(collectively, “defendants”). See Docket
# 89. Defendants have opposed the motion and in their
opposition moved for reasonable attorneys’ fees and
costs. See Docket # 93. Plaintiff has submitted a
reply. See Docket # 103. Plaintiff seeks two
categories of materials: (1) responses to several requests
for production of documents; and (2) a further deposition
from a Smith Transport employee. For the reasons set forth
herein, plaintiff’s motion is denied.
first category of discovery Plaintiff seeks to compel
requires little discussion beyond a review of this
matter’s relevant procedural history. In an amended
scheduling order, District Judge Hillman ordered the parties
to complete fact discovery by November 9, 2015. See
Docket # 37. On November 13, 2015, four days after the fact
discovery deadline, Plaintiff filed the first iteration of
the present motion to compel. See Docket # 46. In
addition to being late, plaintiff’s motion lacked a
Rule 7.1 certification. This court effectively excused
plaintiff’s late filing by denying the motion without
prejudice and permitting plaintiff “to refile
his motion by May 13, 2016.” See Docket # 82
at p. 12 (emphasis added). But plaintiff did no such thing,
instead taking the liberty to file a motion that largely
seeks to compel different documentary materials than those
sought in the original motion this court authorized him to
refile. Compare Docket # 46 at pp. 9-10 (listing as
the “Request[s] at issue” document requests No.
11, 17, and 20) with Docket # 89 at pp. 11-14
(listing as the “Request[s] at issue” requests
No. 7 and 19).
the court, therefore, is not a refiling of the original
motion curing the failure to include the mandatory Rule 7.1
certification, but (except as noted and discussed below) a
new motion seeking to compel discovery outside the scope of
the original motion this court authorized plaintiff to
refile. This new motion was filed six months after the
discovery deadline Judge Hillman had ordered. Thus, to the
extent plaintiff’s motion seeks materials not sought in
his original filing, the motion is denied as untimely.
See Berio-Ramos v. Flores-Garcia, No. 13 Civ. 1879,
2015 WL 9169678, at *2 (D.P.R. Dec. 11, 2015)
(“[L]itigants are not authorized to bypass
deadlines.”) (citing cases); see also Richardson v.
City of New York, 326 F.App'x 580, 582 (2d Cir.
2009) (denying motion to compel filed after fact discovery
deadline); Flynn v. Health Advocate, Inc., No. 03
Civ. 3764, 2005 WL 288989, at *8 (E.D. Pa. Feb. 8, 2005)
(citing some of the “[m]any courts [that] have stated
that Motions to Compel filed after the discovery deadline are
only item which arguably survives the foregoing dismissal for
untimeliness is Request # 20 for Production of Documents.
Even this finding requires a generous reading of
plaintiff’s discovery filings: at best,
plaintiff’s original request-which seeks, obliquely,
“[e]lectronic and digital records, specifically
metadata for PDF documents”-overlaps with materials
sought in the instant motion. Compare Request # 20
for Production of Documents with Docket # 89. In any
event, the court finds that defendants have provided
materials sufficiently responsive to this request.
See Docket # 47-13; see also Docket # 47 at
p. 2 n.3 (explaining that the attached exhibit comprises
“sample pages of some of these reports and computer
system screenshots for context and illustrative purposes.
Many of the complete reports exceed a hundred pages.”).
Thus, even treating this request as timely, it is denied.
Plaintiff has not shown why the materials provided are
insufficient to satisfy defendants’ discovery
obligations. The portion of plaintiff’s motion seeking
further documentary discovery therefore is denied as untimely
or without substantive merit.
the original motion to compel and the instant
“refiling, ” Plaintiff has sought a further
deposition of a Smith Transport witness to testify about the
company’s electronically-stored information
(“ESI”). Plaintiff’s argument essentially is
that the prior deposition failed to address “how Smith
Transport ESI is generated and used; what is it; where and
how is it transmitted and received, stored, and backed-up;
when and how data is destroyed; and how data can be accessed
and retrieved.” See Docket # 89 at p. 10.
Plaintiff avers this information is necessary to support a
forensic expert’s declaration. Id. As support,
plaintiff attaches a single page from the Rule 30(b)(6)
deposition transcript of Smith Transport witness David
Redline. See Docket # 89-6. Plaintiff takes issue
with Mr. Redline expressing an “elementary
understanding” of Smith Transport’s electronic
control module, despite speaking with numerous people in
preparation for his deposition. See id.
argument fails. First, by attaching a single page of the
deposition transcript, plaintiff offers no meaningful context
for Mr. Redline’s purported lack of knowledge
concerning one discrete question. In fact, what that single
page does reveal is that the answer at issue was immediately
followed by plaintiff’s counsel changing subjects to
Mr. McKinney’s employment file, rather than pursuing
the line of inquiry he now deems so crucial.
and most significantly, plaintiff has not shown this request
relevant to [his claims] 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 benefit.
Fed. R. Civ. P. 26(b)(1). For example, plaintiff’s
reply takes issue with Mr. Redline’s inability to
testify about “the technical specifications of how the
company’s voicemail worked or the names of the backroom
servers.” See Docket # 103 at p. 8. The court
fails to see how such information is either relevant,
proportional to the needs of this case, or important to
resolving the issue of which party was responsible for the
accident which is the subject of this suit. Accordingly, the
portion of plaintiff’s motion seeking a further
deposition is denied.
Motion for Reasonable Attorneys’ Fees and
defendants’ opposition seeks costs and fees, a request
which the court finds to have some merit. As noted,
plaintiff’s current motion asks for discovery not
sought in the prior submission. Plaintiff plainly has taken
liberties with the limits ...