Barnette et al v. Grizzly Processing, LLC et al
Filing
361
MEMORANDUM AND OPINION re reopening discovery. Signed by Judge Amul R. Thapar on 6/22/2012. (RKT) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
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Plaintiffs,
Civil No. 10-77-ART
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v.
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MEMORANDUM OPINION
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GRIZZLY PROCESSING, LLC, et al.,
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Defendants.
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SUSAN BARNETTE, et al.,
According to television shows and movies, justice in the courtroom often hinges on
last-minute surprises. The defendant’s only alibi witness changes his testimony on the stand.
A plaintiff’s attorney asks an unexpected question on cross-examination that forces the
defendant to break down and confess in front of the jury. And right before the prosecution
rests on a weak case, the courtroom doors burst open, and police detectives walk in with
newly discovered evidence in hand.
But the outcomes of trials almost never depend upon such unexpected developments.
Rules exist to ensure that the parties have a thorough opportunity to learn about, investigate,
and prepare for all of the other side’s evidence long before the jurors are seated. And if a
party’s failure to turn over evidence to the other side is not substantially justified or harmless,
then the rules prohibit the party from using that evidence at trial. Fed. R. Civ. P. 37(c)(1).
That is precisely what happened here. Now the Plaintiffs—who did not turn over hundreds
of photographs and coal dust samples before trial—want to reopen discovery to correct their
mistake. Nothing in this case, however, authorizes this sort of time travel back to the
discovery stage. Consequently, the Court denied the Plaintiff’s request to reopen discovery.
R. 349 at 1.
BACKGROUND
This is a new episode in a well-established story. See Barnette v. Grizzly Processing,
LLC, 809 F. Supp. 2d 636, 640 (E.D. Ky. 2011). Briefly, the Plaintiffs in this case all live
near a coal screening plant in Banner, Kentucky. The Plaintiffs claim that coal dust and
noise from the Banner Plant began to interfere with their ability to use and enjoy their
properties. R. 17 at 7. They sued the two companies that have operated the Banner Plant
since the problems allegedly began in 2006: Grizzly Processing, LLC, and Frasure Creek
Mining, LLC. Id. After several rounds of summary judgment, see R. 153; R. 165, the
remaining Plaintiffs were left standing with assault and battery claims for nominal damages,
trespass claims, and nuisance claims, accord Bellwether Information Chart, R. 168-1.
Because of the number of Plaintiffs, the Court divided the case into five trials. See
R. 168; R. 172. At the first trial, the Defendants relied on a common theme: that there was
no photographic evidence of any coal dust damage to the Plaintiffs’ houses. See, e.g., R. 276
at 76, 77–78. The jury returned a verdict in favor of the Defendants on all of the claims.
R. 260. To remedy this deficiency for the second trial, the Plaintiffs tried to introduce
several hundred photographs of the damage to their houses as well as samples of coal dust
from their properties. See R. 278 at 3–23. Because they had not disclosed this evidence to
the Defendants during discovery, though, the Court prohibited the Plaintiffs from introducing
it at trial. R. 322 at 4, 11, 13; R. 330. During the second trial, the Defendants returned to the
same theme, see R. 355 at 105–09, and the jury again found in favor of the Defendants on all
of the Plaintiffs’ claims, R. 341.
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Perhaps not willing to rely solely on the maxim that the “third time is the charm,” the
Plaintiffs moved to reopen discovery for ninety days and continue the third, fourth, and fifth
trials. R. 344. They planned to use this additional discovery period to cure their nondisclosure of the photographs and coal dust samples so that they could introduce this
evidence in the remaining trials. R. 344 at 2. For the following reasons, the Court denied
their motion. R. 349 at 1. At that time, the Court also promised to memorialize its reasons
for the denial in a written opinion, which follows below.
DISCUSSION
District courts have considerable discretion to manage the discovery process,
including “the power to control their dockets by refusing to give ineffective litigants a second
chance to develop their case.” Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d
253, 258 (5th Cir. 1997) (citing Turnage v. Gen. Elec. Co., 953 F.2 206, 208–09 (5th Cir.
1992)). And the Court must now exercise that power by refusing to reopen discovery in this
case. Five factors guide the Court’s decision of whether to reopen or extend discovery: (1)
when the Plaintiffs learned of the issue that is the subject of discovery; (2) how reopening
discovery would affect the ruling at issue; (3) the length of the previous discovery period; (4)
whether the Plaintiffs were dilatory; and (5) whether the Defendants were responsive to prior
discovery requests. Lee v. Metro. Gov’t of Nashville & Davidson Cnty., 432 F. App’x 435,
444–45 (6th Cir. 2011) (citing Audi AG v. D’Amato, 469 F.3d 534, 541 (6th Cir. 2006)).
Here, all but the second factor weigh against reopening discovery.
The Plaintiffs have known of the conditions on their property since the beginning of
this lawsuit.
Indeed, these alleged conditions were what prompted them to sue the
Defendants in the first place. Cf. Plott v. Gen. Motors Corp., Packard Elec. Div., 71 F.3d
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1190, 1197 (6th Cir. 1995) (finding a moving party dilatory because it had knowledge of the
specific evidence three weeks before the discovery deadline and it knew of the need for that
type of evidence much earlier in discovery). Indeed, the Defendants specifically asked the
Plaintiffs to produce any photographs, videos, and other evidence that depicted the damage
to their properties. See R. 271-2 at 10–11, 13. Yet during the nine months of discovery from
August 13, 2010, to May 16, 2011, see R. 13 at 2, the Plaintiffs did not turn over any of these
photographs and coal dust samples, R. 344 at 2. They have not explained why this discovery
period—which was long enough for the parties to conduct nearly 100 depositions and gather
expert reports, see R. 347 at 4—was nonetheless insufficient for the Plaintiffs to photograph
the damage to their homes and collect samples of coal dust. Nor do they claim that the
Defendants were non-responsive to any of their discovery requests. The first, third, fourth,
and fifth factors therefore weigh against reopening discovery.
Of course, reopening discovery and permitting the Plaintiffs to cure their nondisclosure would change the Court’s ruling excluding this evidence (assuming that the
evidence is otherwise admissible). But this factor, standing alone, is not enough to warrant
reopening discovery. If it were, then undisclosed evidence would never be excluded from
trial because the Court could reopen discovery to permit disclosure. This approach would
reduce Rule 37’s automatic exclusion of undisclosed evidence to an elaborate inkblot on the
pages of the Federal Rules of Civil Procedure.
What’s more, the consequences of resurrecting discovery in this case go far beyond
cracking open the door to the discovery tomb, letting the parties in so that the Plaintiffs can
turn over the evidence, and then hurrying everyone back out into the courtroom for trial. If
the Plaintiffs turn over coal dust samples, for example, then the Defendants may need to
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invite experts to examine and report on the samples. If the Plaintiffs turn over photographs,
then each of the Plaintiffs with properties depicted in the photographs may need to be
deposed again by the Defendants. Soon enough, the discovery tomb will be quite crowded,
and this séance with the spirits of discovery will be a more expensive and prolonged
gathering than had the evidence been disclosed in the first place. Allowing such prejudice to
the Defendants and unnecessarily delaying trial would undermine the Court’s duty to “secure
the just, speedy, and inexpensive determination” of this case. Fed. R. Civ. P. 1; cf. Shane v.
Bunzl Distr. USA, Inc., 275 F. App’x 535, 537 (6th Cir. 2008) (holding that attorney neglect
does not satisfy the good cause standard necessary to modify discovery deadlines in a court’s
scheduling order).
The Plaintiffs proclaim that this outcome is unfair—that the “jury may not have
gotten a truthful picture of the damages suffered by the Plaintiffs” without the photographs
and coal dust samples. R. 344 at 2. The legal system, however, does not ferret out the truth
at all costs. Statutes of limitations block meritorious claims that are brought too late. The
Fifth Amendment protects witnesses from being forced to incriminate themselves. The
Speedy Trial Clause permits both guilty and innocent criminal defendants to go free if they
are not tried quickly enough. And the Federal Rules of Evidence often preclude the use of
otherwise-relevant evidence.
Federal Rule of Civil Procedure 37(c)(1) is no different. This rule generally prevents
parties from surprising each other at trial with undisclosed evidence, regardless of its
importance. Because “the position in which the Plaintiffs now find themselves is a product
of their own choices and those of their counsel,” Jackson v. Intern. Fiber Corp., 395 F.
App’x 275, 280 (6th Cir. 2010) (quoting Williams v. Vilsack, 620 F. Supp. 2d 40, 51 (D.D.C.
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2009)), they are not entitled to a do-over. Accord Hussain v. Nicholson, 435 F.3d 359, 364
(D.C. Cir. 2006) (affirming a district court’s denial of a plaintiff’s motion to reopen
discovery to mitigate his former attorney’s failure to conduct any discovery within the
court’s discovery schedule).
This the 22nd day of June, 2012.
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