Thanh v. Ngo

Filing 72

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 5/9/2013. (kns, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

HOAI THANH,

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Plaintiff
v.
HIEN T. NGO,

Defendant.

Civil No. PJM 11-1992

MEMORANDUM OPINION
This false light and defamation case is the latest in the long history of litigation between
Plaintiff Hoai Thanh and Defendant Hien T. Ngo.
Discovery in the case, which began in early 2012, has been characterized by several
motions. In December 2012 and January 2013, Thanh filed a “Motion to Enforce Discovery
Settlement Agreement” (Dkt. 58) (seeking primarily to obtain court orders to have three Internet
Service Providers (ISPS) provide content information) and a “Motion to Compel” (Dkt. 60)
(complaining about discovery disputes in general and seeking to have Ngo produce a tape
recording). Ngo, partially at least, opposes Thanh’s Motions. The Court referred these
discovery issues and related scheduling matters to Magistrate Judge (MJ) Charles B. Day.
Following a hearing on the Motions before MJ Day, in an oral ruling he granted-in-part and
denied-in-part Thanh’s Motion to Enforce Discovery Settlement Agreement but denied his
Motion to Compel. (See Dkts. 68 and 69.)

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Thanh objects to these rulings (see Dkts. 70 and 71). Ngo has not filed a response to this
appeal. The Court reviews the MJ’s rulings for clear error. See Baltimore Line Handling Co. v.
Brophy, 771 F. Supp. 2d 531 (D. Md. 2011).
Having done so, the Court OVERRULES Thanh’s Objections.
I.
Thanh’s Motions and Objections are intertwined, since both relate to discovery disputes
which arose in August 2012. At that time, Thanh served Ngo with an original Motion to Compel
discovery, seeking emails and the tape recording. When counsel for the parties met in August,
defense counsel advised Plaintiff’s counsel that Ngo did not possess a tape, but stated that he
would work on getting the emails from three ISPs. Counsel for the parties labored throughout
the fall to get emails from the ISPs, but, facing resistance from the ISPs, met again in December.
Eventually it became clear that, absent a court order, the ISPs would not turn over the
information. It was at that point that Thanh filed his present “Motion to Enforce Settlement
Agreement,” followed by his “Motion to Compel,” alleging generally obstructionist behavior on
the part of Ngo, and, once again seeking, among other things, to obtain the tape recording. At
oral argument before MJ Day, Thanh concentrated on the issue of the tape recording, alleging,
among other things, that Ngo had deliberately destroyed it.
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Thanh’s original Motion to Compel production of the tape recording was served on Ngo
in August 2012. When counsel met in August, Ngo clearly represented through counsel that Ngo
no longer had the tape. Thereafter, Thanh continued to maintain that he had a right to the tape
while Ngo continued to insist she did not have it. In January 2013, Thanh filed a renewed
Motion to Compel.
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MJ Day determined that Thanh had not filed his renewed Motion to Compel in a
reasonable time after his request was rebuffed—noting that Thanh knew as of August 2012 that
Ngo was asserting she did not have the tape. When Thanh did file, January 2013, some five
months had passed. In addition, MJ Day pointed out that Ngo was not refusing to produce
something within her possession, custody, or control; rather, she was not producing something
she claimed to not possess. MJ Day further stated that the record evidence of spoliation was
insufficient, since it was unclear as to when Ngo may have gotten rid of the tape and as to when
she should have reasonably anticipated litigation. However, MJ Day left open the possibility that
with more evidence, Thanh might possibly set forth a spoliation case in the future. The MJ also
indicated that, if Thanh’s counsel so wished, Ngo’s counsel could set forth in writing that the
tape was not in Ngo’s possession, custody, or control. The Court assumes that either this has
been done, or if it has not been done, and Ngo for any reason declines to furnish the statement
voluntarily, Thanh may return to MJ Day, requesting an order that it be done.
In his Motion to Compel, Thanh argues that the Local Rules of the Court do not set a
time limit for the filing of a motion to compel, that MJ Day completely ignored the spoliation
issue, and that he wrongly imposed sanctions on Thanh in saying that costs associated with
getting ISP information should preliminarily fall on Thanh, whereas spoliation by Ngo should
have required that such costs be borne by Ngo.
II.
While there is no local or federal rule setting a precise deadline for the filing of a motion
to compel, it is clear that any such motion must be filed within a “reasonable” time period. See
8B Charles Alan Wright et al., Federal Practice and Procedure § 2285 (3d ed. 2010) (“the
moving party must seek a Rule 37(a) order in a timely fashion…. long delays in seeking a court
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order may weaken or undermine the argument that the additional discovery is important.”). In
this case, MJ Day committed no clear error in concluding that Thanh’s delay of almost 6 months
from the time he knew he would not get the tape until he sought relief from the Court by Motion
was unreasonable. Nor was MJ Day in error in concluding that the record before him did not
demonstrate spoliation by Ngo. Further, the MJ’s comments that Thanh might need to shoulder
the costs of obtaining discovery from the ISPs in no sense amounted to a “sanction” against
Thanh or an inappropriate response to Thanh’s unproven allegation of spoliation. Finally, as MJ
Day recognized, it was Thanh who was seeking the information from the third-party ISPs, so it
can hardly be erroneous to suggest that the burden, at least, might be borne by him.
III.
Thanh’s second Objection relates to MJ Day’s grant in part and denial in part of Thanh’s
Motion to Enforce Discovery Settlement. This Motion sought to enforce an agreement between
Thanh and Ngo, whereby they agreed to seek discovery, specifically Ngo’s emails, from the
three ISPs: Yahoo, Google, and AOL. Thanh requested and Ngo consented to having MJ Day
sign orders directing the ISPs to turn over the contents of Ngo’s emails, which MJ Day agreed to
do, asking that the parties submit proposed orders. On review of the proposed orders, MJ Day
stated that he was concerned over the scope of the orders, indicating that he was not prepared to
authorize Thanh to go so far as to obtain email information by and between third parties, apart
from any emails third party correspondents may have sent to Ngo and which would be found in
Ngo’s account. And again, MJ Day also stated that in terms of any costs associated with the ISPs
having to respond, his preliminary view was that Thanh was the appropriate party to shoulder
those costs, since he was the one seeking the discovery from the ISPs. But MJ Day also
indicated that, depending on the ultimate costs, it might be appropriate for Thanh and Ngo to
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share them, and, in any event, if the parties could not come to an agreement on the matter, they
could always seek a further ruling from him.
Thanh takes particular issue with MJ Day’s stray remark that he would not allow a “wild
goose chase” after emails that correspondents of Ngo may have exchanged with third parties.
Those three words are patently innocuous, hardly the stuff of a plausible objection to an MJ’s
action or the basis for asking a reviewing Court to address in a written opinion.
IV.
At this juncture, discovery in the case is essentially closed except as to two areas—the
ISP material and Ngo’s deposition (see Dkt. 56). MJ Day appropriately delineated the scope of
the ISP discovery Thanh may undertake. Moreover, Thanh may obtain court orders from MJ
Day directing the ISPs to produce specified emails for review by Ngo and Thanh, as discussed at
the hearing before MJ Day.
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Summing up, the Court finds no error, much less clear error, in any of the rulings of MJ
Day that Thanh complains of.
The Court OVERRULES Plaintiff’s Objections to MJ Day’s Rulings on April 4, 2013.
A separate order will ISSUE.

/s/________________
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
May 9, 2013

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