Mitchell v. Savannah Airport Commission et al

Filing 50

ORDER granting 31 Motion to Compel; denying 32 Motion for Extension of Time to Complete Discovery; 41 Motion for Extension of Time to Complete Discovery; 43 Motion for Extension of Time to Complete Discovery. Signed by Magistrate Judge G. R. Smith on 06/19/2018. (evs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
LAKISHA MITCHELL,
Plaintiff,
v.
SAVANNAH AIRPORT COMM’N,
Defendant.

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CV417-188

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ORDER
In this employment discrimination case, defendant Savannah
Airport Commission (SAC) seeks to compel the production of several
exhibits it believes plaintiff possesses.

Doc. 31 at 1-2 (i.e., exhibits

referenced in “notes and related documents” a SAC manager had
provided to plaintiff). Plaintiff’s counsel agreed in April that she would
produce any missing exhibits within a few days, but she has gone radio
silent despite defendant’s requests (both formal and informal) that she
either produce the remaining exhibits or affirm she doesn’t have any
additional exhibits. Id., Exhs. E, F & M. Plaintiff responds that she
has “produced or offered” every “reasonably relevant” document in her
possession, doc. 38 at 1, rendering the dispute moot.

That she had

produced all the discoverable material she had, of course, could have

been communicated to defense counsel long before plaintiff filed her
opposition brief.

That sort of forthright candor would have enabled

defendant to request a privilege log be prepared of all the documents
plaintiff believed ought not be produced.
Defendant served plaintiff with supplemental discovery requests
to suss out the missing exhibits issue, which have gone unanswered.
Doc. 31 at 3; see id., Exhs. D, E, H, I & J. It also served supplemental
discovery requests to investigate some of plaintiff’s litigation theories,
which have similarly gone unanswered. Id., Exh. G. Plaintiff argues
that she “is in compliance with discovery,” doc. 38 at 4, but does not
dispute that she has not actually responded (either formally or
informally) to those supplemental discovery requests. 1 Indeed, she is

1

Oddly, plaintiff appears to list her objections to the requests within the body of her
opposition brief. Doc. 38 at 4-5. That is not how discovery works in this Court.
Counsel do not receive discovery requests, watch the clock run down on the deadline,
ignore all inquiries about the status of their answers, and then tell the Court what
they think about those requests in their opposition papers.
Further, though defendant does not make the argument, it bears noting that
failure to raise objections in a timely response waives them.
Rule 33(b)(4) of the Federal Rules of Civil Procedure provides that “[a]ny
ground [for an objection to an interrogatory] not stated in a timely objection
[i.e., thirty days] is waived unless the court, for good cause, excuses the
failure” (emphasis added). Rule 34 contains a similar requirement that
objections to requests for production be timely and stated with reasons, and
the Advisory Committee Notes to the 1970 Amendment state that this
subdivision “is essentially the same as that in Rule 33 . . . .” Thus, as a general
2

still bogged down in document review, trudging through the “50,000
documents” timely produced by defendant in response to her own
discovery requests. Doc. 38 at 6. Thus ensues her request to reopen
discovery so that she has time to fully investigate her own case (e.g.,
reviewing those documents and deposing a witness), with no mention of
defendant’s impaired ability to fully mount a defense2 and nary a peep
about why it took her more than a month after the close of discovery to
realize she needed more time. Doc. 32; see also docs. 41 & 43
(amended/supplemented motions). Put simply, time was ticking and

rule, when a party fails to timely object to interrogatories, production requests,
or other discovery efforts, the objections are deemed waived. See In re United
States, 864 F.2d 1153, 1156 (5th Cir.1989). This is so even though a party had
an objection to make. See Jaffe v. Grant, 793 F.2d 1182, 1190 n. 6 (11th Cir.
1986) (objection based on Fifth Amendment waived by failure to timely assert
such privilege in response to discovery); Peat, Marwick, Mitchell & Co. v. West,
748 F.2d 540, 542 (10th Cir. 1984) (same as to work product).
Deforest v. Johnny Chisholm Glob. Events, LLC, 2009 WL 1660137 at *4 (N.D. Fla.
June 15, 2009).
2

After all, plaintiff filed her motion less than 24 hours before defendant filed its
motion for summary judgment. See, e.g., Sweet v. Lockheed Martin Corp., 2009 WL
10664952 at *3 (N.D. Ga. Aug. 21, 2009) (denying plaintiff’s request to reopen
discovery filed one day before defendant’s motion for summary judgment because
“[r]eopening discovery so Plaintiff could take additional depositions would result in
additional costs and fees for Defendant relating to the taking of the depositions, and
might create a need for Defendant to make revisions to its summary judgment
motion and supporting documentation, causing additional expense to Defendant and
creating delay in consideration of the motion by the court.”), cited in doc. 38 at 4-5.
This case has been progressing, regardless of whether plaintiff has been asleep at the
wheel.
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plaintiff failed to request more of it to accommodate the apparently
Herculean task of reviewing everything defendant produced in response
to her requests for discovery. A temporal quagmire, of plaintiff’s own
design, is not “good cause” warranting reopening discovery under the
Rules. Fed. R. Civ. P. 16(b)(4); see also S.D. Ga. L. R. 26.2.
Accordingly, defendant’s motion to compel (doc. 31) is GRANTED
as it is meaningfully unopposed. Plaintiff is ORDERED to respond to
defendant’s supplemental discovery requests seeking information on the
exhibits and elucidation of her litigation theories within 7 days of
service of this Order.

Any documents she believes ought not be

produced, either on relevance or privilege grounds, shall be identified in
a privilege log produced along with her responses to the exhibit
discovery. Plaintiff’s motion to reopen discovery (docs. 32, 41 & 43) is
further DENIED for lack of good cause.
SO ORDERED, this 19th

day of June, 2018.

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