United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION IN LIMINE TO PRECLUDE
USE OF LATE-PRODUCED DOCUMENTS
Dennis Saylor IV United States District Judge
action involves a dispute arising out of construction
contracts to build storage facilities. Jurisdiction is based
on diversity of citizenship.
present dispute concerns a late production of documents by
defendants Plain Avenue Storage, LLC and Malden Storage, LLC
to plaintiff BRT Management LLC and third-party defendant
Brian Wallace. BRT and Wallace have moved under Fed.R.Civ.P.
37 to preclude Plain and Malden from using the late-produced
documents in support or opposition to any motion or at trial.
For the following reasons, the motion will be granted in part
and denied in part.
August 7, 2018, BRT and Wallace served both Plain and Malden
with requests for the production of documents. In general
terms, those requests sought the production of documents
supporting the damages claims of Plain and Malden. Under the
federal rules, a response was due 30 days later, or by
September 6, unless a later date was agreed to by the parties
or the court ordered otherwise. See Fed. R. Civ. P.
34(b)(2)(A). There is no evidence in the record that counsel
agreed to an extension, and the Court did not extend the
September 21, 2018, Plain and Malden served written responses
indicating that certain responsive documents were attached
and that others would be produced, either “by the end
of next week” or at some future unspecified time.
discovery closed on October 10, 2018. On October 17, seven
days after the close of discovery and 71 days after receiving
the request for production, Plain and Malden served
additional responsive documents on BRT. The production
consisted of a CD containing 638 pages of documents. The CD
and accompanying cover letter did not contain the necessary
attorney certification under Fed.R.Civ.P. 26(g), or any other
language identifying the supplemental production. Instead,
the cover letter stated only that a “CD containing
Bates Stamped documents within certain ranges was
for BRT and Wallace contend that they mistook the CD as
unrelated to their August 7 requests for production.
According to counsel, it was not until January 29, 2019,
during an e-mail exchange with Plain and Malden's
counsel, that they realized that they had, in fact, received
the supplemental production. Once they learned that Plain and
Malden had supplemented their previous response with the
documents contained on the CD, BRT moved to withdraw a
then-pending summary judgment motion, “as the ground
for that motion was Defendants' failure to provide
documentation of their damages.” (Mem. in Supp. at 4
Wallace have moved in limine to preclude Plain and
Malden from using those late-produced documents in support of
any motion or opposition or at trial. In the alternative,
they request that discovery be reopened to allow BRT and
Wallace to depose Plain and Malden on issues that they
contend were raised for the first time by the supplemental
review of the relevant discovery obligations is warranted.
Rule 34, unless the parties stipulate or the court orders
otherwise, a party receiving a request for the production of
documents must respond in writing within 30 days.
Fed.R.Civ.P. 34(b)(2)(A). The production of documents
“must then be completed no later than the time for
inspection specified in the request or another reasonable
time specified in the response.” Fed.R.Civ.P.
Rule 26, “[a] party who has . . . responded to an
interrogatory, request for production, or request for
admission-must supplement or correct its . . . response . . .
in a timely manner if the party learns that in some material
respect the . . . response is incomplete or incorrect, and if
the additional or corrective information has not otherwise
been made known to the other parties during the discovery
process or in writing . . . .” Fed.R.Civ.P. 26(e)(1).
26(g) provides, in relevant part, that every discovery
response “must be signed by at least one attorney of
record in the attorney's own name.” Fed.R.Civ.P.
26(g)(1). By signing, an attorney certifies that “to
the best of the person's knowledge, information, ...