WIDI v. MCNEIL et al

Filing 530

ORDER dismissing without prejudice 462 Motion to Compel Discovery. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID J. WIDI, JR.,
Plaintiff,
v.
PAUL MCNEIL, et al.,
Defendants.

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2:12-cv-00188-JAW

ORDER ON MOTION FOR DISCOVERY
The Court denies plaintiff’s motion to compel discovery because the plaintiff
has failed to present a plausible basis for believing that additional facts exist and can
readily be retrieved together with an explanation of how those facts will defeat
summary judgment.
I.

BACKGROUND
On October 13, 2017, the Court issued an order on discovery motions, deferring

final ruling on the motion until the parties conferred pursuant to Local Rule 26(b)
and reported to the Court. Order on Disc. Mot. (ECF No. 510) (First Disc. Order).
The genesis of this motion is a motion for summary judgment that Agents Hickey and
Grasso filed on April 18, 2017. Stephen E. Hickey and Michael Grasso’s Mot. for
Summ. J. on Count VII of the Second Am. Compl. (ECF No. 428). In response, after
getting an extension of time within which to respond to the motion, Mr. Widi
requested that Agents Hickey and Grasso respond to a pending discovery request
before he responded to the pending motion. Second Mot. to Enlarge Time to File Opp’n

to Defs. Hickey and Grasso’s Mot. for Summ. J. on Count VII (ECF No. 457). The
Agents objected to responding to discovery until Mr. Widi complied with Federal Rule
of Civil Procedure 56(d). Stephen E. Hickey and Michael Grasso’s Status Report
Regarding Pl.’s Purported Disc. Reqs. (ECF No. 461). On July 10, 2017, Mr. Widi
filed a motion to compel discovery to which he attached a discovery request for an
extensive list of documents and other information. Mot. to Compel Disc. (ECF No.
462) (Mot. to Compel). Agents Hickey and Grasso objected to Mr. Widi’s discovery
request. Stephen E. Hickey and Michael Grasso’s Opp’n to Pl.’s Mot. to Compel Disc.
(ECF No. 464). On September 5, 2017, Mr. Widi replied to the Agents’ response.
Reply to Hickey and Grasso’s Opp’n to Pl.’s Mot. to Compel Disc. (ECF No. 488).
Meanwhile, on July 28, 2017, Mr. Widi responded to the Agents’ motion for
summary judgment and on August 7, 2017, the Agents replied to Mr. Widi’s response
to their motion for summary judgment. Opp’n to Hickey and Grasso’s Mot. for Summ.
J. on Count VII of the Second Am. Compl. (ECF No. 473); Stephen E. Hickey and
Michael Grasso’s Reply Br. in Support of Their Mot. for Summ. J. on Count VII of the
Second Am. Compl. (ECF No. 479).
On October 13, 2017, the Court issued an order deferring a final ruling on Mr.
Widi’s motion to compel discovery until the parties conferred about discovery and
reported back to the Court. First Disc. Order at 12. On October 18, 2017, the Agents’
counsel filed a joint motion to extend the time to file a report to the Court for one
week. Jt. Mot. for a One-Week Extension of the Deadline for Submitting a Report of
Local Rule 26(b) Conf. (ECF No. 514). Mr. Widi contacted the Clerk’s Office and

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objected to the joint nature of the motion, leading the Court to issue yet another order,
noting that “the upshot is that Mr. Widi agreed to the filing of a joint motion, and,
once filed, decided to oppose it.” Order on Jt. Mot. to Extend (ECF No. 515). On
October 26, 2017, the Court reset the due date to November 3, 2017 for the report of
counsel regarding the Local Rule 26(b) conference. Id. at 3.
On November 3, 2017, Agents Hickey and Grasso complied with the Court’s
order and filed a report of the Local Rule 26(b) conference. Defs.’ Report of Local Rule
26(b) Conf. (ECF No. 519) (Defs.’ Report). Mr. Widi did not comply in a timely fashion.
Instead, after being granted an extension of time, Mr. Widi prepared and filed a
motion for reconsideration of the discovery order. Mot. for Recons. of Order on Disc.
Mot. (ECF # 510) (ECF No. 518) (Mot. for Recons.). Finally, on November 5, 2017,
Mr. Widi filed his report of the Local Rule 26(b) conference. Pl.’s Report of Local Rule
26(b) Conf. (ECF No. 521) (Pl.’s Report).
On November 15, 2017, the Court issued an order, again deferring action on
Mr. Widi’s motion to compel discovery, but denying his motion for reconsideration.
Order on Mot. for Disc. and Mot. for Recons. of Disc. Order (ECF No. 528) (Second
Disc. Order). In response, Agents Hickey and Grasso replied to Mr. Widi’s report of
the Local Rule 26(b) conference on November 15, 2017. Stephen E. Hickey and
Michael Grasso’s Resp. to Pl.’s Report of Local Rule 26(b) Conf. (ECF No. 529) (Defs.’
Disc. Reply).

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II.

THE PARTIES’ POSITIONS
A.

The Defendants’ Local Rule 26(b) Report

In their initial report of the results of the Local Rule 26(b) conference, Agents
Hickey and Grasso noted that they assumed Mr. Widi had already been provided with
documentation during his criminal case and they asked Mr. Widi what documents he
already possessed. Defs.’ Report at 2. After some delay, Mr. Widi told them to assume
he had no documents. Id. Counsel for Agents Hickey and Grasso produced two
hundred and ten pages of documents to Mr. Widi on November 3, 2017. Id. at 3.
B.

David Widi’s Local Rule 26(b) Report

In his late-filed report, Mr. Widi complains that the Defendants “have not
disclosed anything other than what was already provided to Mr. Widi during his
criminal case.” Pl.’s Report at 2. He asserts that the existence of other relevant
reports that had been produced by ATF was discussed during the FOIA litigation. Id.
(citing ECF No. 370:2). Mr. Widi also objects to the Defendants’ claim that they “do
not have” any other documents. Id. In his view, he is entitled to documents from
others if the Agents were “in privity” with other people or institutions who possess
the documents. Id. He urges the Court to revisit its January 10, 2017 order in which
it dismissed without prejudice a series of subpoenas that Mr. Widi moved to have
issued against a number of third parties, including the town of Eliot. Id. at 2; see
Mot. for Issuance of Subpoena (ECF No. 362); Order on Mot. for Recons. at 31 (ECF
No. 392).

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Mr. Widi disputes the Agents’ assertion that they did not author any reports
because he contends ATF regulations require agents to file reports of any criminal
investigations. Pl.’s Report at 3. Mr. Widi contends that the photo log submitted by
the Defendants in this case differs from the photo log generated during the search.
Id. (citing ECF No. 429-5:11 and ECF No. 473-4). Mr. Widi says that one of the
photographs taken during the search shows a photo log with entirely different entries
than the one now proffered by the defendants and accuses the Agents of making
“patently false” representations. Id.
Mr. Widi maintains that the Agents have not attempted to resolve the
discovery issues in good faith and argues that this Court should grant the motion to
compel discovery and any further relief deemed just including the issuance of third
party subpoenas against the town of Eliot and the United States. Id.
C.

The Defendants’ Response to David Widi’s Report

In their further response of November 15, 2017, Defendants note that they had
endeavored to produce for Mr. Widi any documents that had a bearing on the narrow
issue that the Court identified, namely whether the Defendants opened the door of
Mr. Widi’s grey utility trailer on the day of the search. Defs.’ Disc. Reply at 1-2. The
Defendants informed the Court that they have confirmed to Mr. Widi that they “had
no other reports of documents describing their actions on the day of the search other
than what had already been produced, and therefore had nothing else further to
produce in discovery.” Id. The Defendants point out that Mr. Widi already has a
voluminous set of documents arising from the search and he has transcripts of the

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agents’ testimony about the search. Id. at 3. They say that “[t]he simple truth of the
matter is there is no evidence to support Widi’s baseless assertions against
Defendants because they are just that—baseless.” Id. They argue that “[n]o amount
of additional discovery will change those basic facts, nor has Widi offered any
plausible basis for believing that additional discovery has any reasonable likelihood
of yielding information sufficient to defeat summary judgment.” Id. at 4.
III.

DISCUSSION
A.

Legal Standards

The general standard for allowing discovery is set forth in Federal Rule of Civil
Procedure 26(b):
Parties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense and proportional to the needs
of the case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs the likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
FED. R. CIV. P. 26(b). In addition to this general standard, as the Court explained in
its November 15, 2017 order, the right to discovery in this case has been narrowed by
Federal Rule of Civil Procedure 56(d), which provides:
If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the
court may: (1) defer considering the motion or deny it; (2) allow time to
obtain affidavits or declarations or to take discovery; or (3) issue any
other appropriate order.
FED. R. CIV. P. 56(d).

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The Court earlier quoted the First Circuit’s interpretation of Rule 56(d). First
Disc. Order at 5, 9-10. Under Rule 56(d), Mr. Widi has the burden to “make an
authoritative and timely proffer showing ‘(1) good cause for his inability to have
discovered or marshaled the necessary facts earlier in the proceedings; (ii) a plausible
basis for believing that additional facts probably exist and can be retrieved within a
reasonable time; and (iii) an explanation of how those facts, if collected, will suffice
to defeat the pending summary judgment motion.’” Id. (quoting Donovan v. Fowle,
No. 1:09-cv-00328-JAW, 2010 U.S. Dist. LEXIS 43674 (D. Me. May 3, 2010) (quoting
Rivera-Torres v. Rey-Hernandez, 502 F.3d 7, 10 (1st Cir. 2007)).
B.

Application of the Legal Standards to David Widi’s Motion

In his Second Amended Complaint, specifically Count VII, Mr. Widi claims
that Agents Hickey and Grasso opened up a grey trailer on his property and
photographed its contents, and in doing so, they violated his constitutional rights.
Second Am. Compl. at 30 (ECF No. 191). On April 18, 2017, Agents Hickey and
Grasso moved for summary judgment and submitted a statement of undisputed
material facts. Stephen E. Hickey and Michael Grasso’s Mot. for Summ. J. on Count
VII of the Second Am. Compl. (ECF No. 428); Statement of Undisputed Material Facts
(ECF No. 429). The basis of the motion for summary judgment is the Agents’ sworn
declarations that when they came upon Mr. Widi’s grey trailer, the door was opened,
and they merely photographed what was there to be seen. Statement of Undisputed
Material Facts Attach 5 Decl. of Stephen E. Hickey ¶ 9 (ECF No. 429) (“I am aware
that Widi has accused me of violating his Fourth Amendment rights by ‘searching’

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that trailer. That allegation is false. I specifically recall the trailer and the Harley
Davidson motorcycle, and I can state unequivocally that I did not ‘open’ that trailer
on the day of the search. To the contrary, the trailer was already open when I first
encountered it and when I took the picture attached as Exhibit B”); Id. Attach 2 Decl.
of Michael Grasso ¶ 7 (“I am aware that Widi has accused me of violating his Fourth
Amendment rights by ‘searching’ that trailer. That allegation is false. I specifically
recall the trailer and the Harley Davidson motorcycle, and I can state unequivocally
that I did not ‘open’ that trailer on the day of the search”).
In response to the Agents’ motion, Mr. Widi filed a motion to compel discovery
from them. Mot. to Compel at 1-5. In his motion, Mr. Widi asked that Agents Hickey
and Grasso be compelled to produce documents that he had requested in his
Discovery Request dated March 6, 2017. See id. Attach. 1 Disc. Req. at 1-3. Following
the Court’s orders, Agents Hickey and Grasso sent Mr. Widi two hundred and ten
pages of documents. Defs.’ Report at 3. In response, Mr. Widi protested that the
produced documents were the same documents he received during his criminal case,
Pl.’s Report at 1-2, that Agents Hickey and Grasso should be required to produce
documents in the possession of other individuals and agencies because they are “in
privity” with them, id. at 2, and that a discrepancy between the photo log that was
produced and a photo of another photo log made contemporaneously with the grey
trailer search establishes that the Agents are lying about the reports they generated.
Id. at 3.

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In all his filings, Mr. Widi has not provided the Court with a response to the
question now before the Court: skipping over the good cause requirement under
Rivera-Torres, Mr. Widi has not attempted to demonstrate either (1) a plausible basis
for believing that additional facts probably exist and can be retrieved within a
reasonable time, or (2) an explanation of how those facts, if collected, will suffice to
defeat the pending summary judgment motion. Rivera-Torres, 502 F.3d at 10. In
other words, Mr. Widi failed to address what specific discovery he requires to defend
against the pending motion for summary judgment; namely, what discovery will
reveal that either Agent Hickey or Agent Grasso, or both of them opened the door of
the grey trailer.
The Court informed Mr. Widi in its October 13, 2017 order and in its November
15, 2017 order that it was open to allowing him some limited discovery on the narrow
factual issue before the Court in the pending motion for summary judgment. First
Disc. Order at 10-12; Second Disc. Order at 7-9. Even so, in the October 13, 2017
order, the Court observed that “Mr. Widi has come up with a minimal explanation for
why he needs discovery.” First Disc. Order at 10. The Court rejected Mr. Widi’s
demand that he be allowed to conduct discovery on Agents Hickey and Grasso in order
to obtain information against other defendants. Id. at 10-11. It also warned Mr. Widi
that it would not allow him to engage in a fishing expedition. Id. at 11. Expressing
its view that Mr. Widi could be entitled to some discovery, the Court still wrote that
it was “mystified as to how [Mr. Widi] intends to disprove what these Agents
represented under oath.” Id. The Court speculated that there “may be a limited

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number of other reports and similar documents” that could be responsive to the
narrow issue before the Court. Id. at 11-12. In its November 15, 2017 order, the
Court reiterated that it would “allow Mr. Widi some discovery on the narrow factual
issue presented by the motion.” Second Disc. Order at 9.
Despite the Court’s invitations to Mr. Widi to comply with Rule 56(d), its
quoting the tripartite standard under Rivera-Torres, its quoting the Rule itself
(“show[] by affidavit or declaration that, for specified reasons, he cannot present facts
essential to justify [his] opposition”, FED. R. CIV. P. 56(d)), and its urging Mr. Widi to
describe a narrow set of required discovery, the Court only has his insistence that
“general discovery should be allowed,” that he should be allowed to engage in
discovery of these Agents to assist his case against other defendants, and that the
Court is itself at fault for not being concerned about “getting to the truth of the
matter.” Mot. for Recons. at 9-10.
Given the state of the record before the Court, the fact that the Agents have
turned over two hundred and ten pages of documents to Mr. Widi, that it is not
appropriate to allow Mr. Widi to force Agents Hickey and Grasso to undergo the
expense and trouble of discovery in order to obtain information in Mr. Widi’s case
against other defendants, and that Mr. Widi failed to comply with Rule 56(d), the
Court dismisses without prejudice his Motion to Compel Discovery. The Court will
turn to the merits of the pending motion for summary judgment.

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IV.

CONCLUSION
The Court DISMISSES without prejudice David J. Widi, Jr.’s Motion to

Compel Discovery (ECF No. 462).
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 6th day of December, 2017

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