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BRT Management LLC v. Malden Storage LLC

United States District Court, D. Massachusetts

August 20, 2019

BRT MANAGEMENT LLC, Plaintiff Counterclaim Defendant,
v.
MALDEN STORAGE, LLC and PLAIN AVENUE STORAGE, LLC, Defendants/Counterclaim Plaintiffs/ Third-Party Plaintiffs, and BRIAN WALLACE, Third-Party Defendant.

          MEMORANDUM AND ORDER ON MOTION IN LIMINE TO PRECLUDE USE OF LATE-PRODUCED DOCUMENTS

          F. Dennis Saylor IV United States District Judge

         This action involves a dispute arising out of construction contracts to build storage facilities. Jurisdiction is based on diversity of citizenship.

         The 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.

         I. Background

         On 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 deadline.

         On 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.

         Fact 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.[1] 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 enclosed.”

         Counsel 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 ¶ 17).

         BRT and 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 production.

         2. Analysis

         A brief review of the relevant discovery obligations is warranted.

         Under 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. 34(b)(2)(B).

         Under 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).

         Rule 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, ...


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