United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION TO REOPEN DISCOVERY
AND MOTION FOR SANCTIONS
Dennis Saylor IV Chief Judge, United States District Court
action involves a dispute arising out of construction
contracts to build storage facilities.
present aspect of the dispute follows this Court's August
20, 2019 Memorandum and Order concerning the use of
late-produced documents by defendants Plain Avenue Storage,
LLC and Malden Storage, LLC. Although the Court declined to
exclude the documents as a sanction, it did not resolve the
issues of possible imposition of attorneys' fees and
additional discovery. BRT and Wallace have now moved for both
attorneys' fees and additional discovery. For the
following reasons, the motions will be granted in part and
denied in part.
late production of documents by Plain and Malden is described
at length in the Court's August 20, 2019 Memorandum and
Order, and warrants only a brief summary here.
August 7, 2018, BRT and Wallace served both Plain and Malden
with requests for production of documents concerning, in
part, alleged damages arising from their counterclaim.
deadline for the close of fact discovery was October 10,
2018. On October 17, 2018, Plain and Malden produced a final
set of responsive documents. That production, consisting of a
CD containing 638 documents, came seven days after the close
of fact discovery and 71 days after receipt of the request
for production. The production also lacked the required
attorney certification under Fed.R.Civ.P. 26(g) and was
devoid of identifying information.
for BRT and Wallace did not, however, examine the documents.
Instead, on January 25, 2019, BRT and Wallace filed a motion
for partial summary judgment, asserting that defendants had
failed to produce any damages evidence relating to their
January 29, 2019, counsel for BRT and Wallace finally
realized that defendants had supplemented their earlier
productions with the CD containing documentation of damages.
BRT and Wallace then moved to withdraw the pending summary
February 7, 2019, BRT and Wallace moved in limine to
preclude Plain and Malden from using the late-produced
documents in support of any motion or opposition or at trial.
August 20, 2019, the Court denied that motion. It held that
preclusion of the documents was not appropriate, as
plaintiff's counsel was not blameless and the documents
were essential to defendants' counterclaim. However, the
Court held that BRT and Wallace were “entitled to an
award of reasonable attorneys' fees and expenses arising
out of the litigation of this issue, ” and that
discovery could be reopened on a limited basis if plaintiff
made an appropriate showing of need. (Aug. 20, 2019 Mem. and
Wallace have now moved for sanctions and to reopen discovery.
They have requested an award of attorneys' fees for the
filing of their (later-withdrawn) summary judgment motion and
motion in limine, and have moved to take a
deposition under Rule 30(b)(6) concerning the subject matter
of the late-produced documents.