Thanh v. Ngo

Filing 84

MEMORANDUM OPINION AND ORDER GRANTING 79 Motion for Reconsideration ; and DEFERRING ruling on 82 Motion for Spoliation. Signed by Judge Peter J. Messitte on 7/23/2013. (ebs2, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

HOAI THANH,
Plaintiff
v.
HIEN T. NGO,

Defendant.

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Civil No. PJM 11-1992

MEMORANDUM OPINION & ORDER
In its Opinion & Order dated May 9, 2013 (Papers No. 72 & 73), the Court affirmed
Magistrate Judge (MJ) Day’s overruling of Plaintiff’s Hoai Thanh’s Motion to Compel the
Production of certain items. One of the items sought was a tape recording of a supposed
telephone conversation between Defendant Hien Ngo and a Mrs. Minh, in which Mrs. Minh
allegedly made statements that she had been “conned” or defrauded by Thanh, an item that
thereafter Ngo apparently published. MJ Day determined that Thanh had waited some six
months to file the Motion, too long in his view, and the Motion to Compel was denied as
untimely.
After this Court affirmed MJ Day, Thanh filed a Motion for Reconsideration of the
Court’s Order, arguing that while he had first sought production of the tape from Ngo in August
2012, he did not in fact learn that Ngo’s counsel was claiming the tape did not exist until March
2013. An e-mail from Ngo’s counsel appears to confirm this to have been the case and neither
Ngo nor her counsel has averred to the contrary.
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Meanwhile, according to Thanh’s counsel, he was trying to resolve the matter of
production of the tape informally with Ngo’s counsel, a course very much favored during the
course of discovery. It is unfair, says Thanh, that that delay should be used as a sword against
him.
The Court, on reconsideration, agrees with Thanh. Accordingly, Thanh’s Motion for
Reconsideration (Dkt. 79) is therefore GRANTED.

1) Within 30 days, Ngo and her counsel must produce the tape to Thanh’s counsel or
both Ngo and her counsel must explain, under penalties of perjury:
a. Whether the tape ever existed;
b. Whether Ngo ever told anyone that the tape existed and, if so, who was told
and when;
c. Whether the tape was destroyed and, if so, when, by whom, and why;
d. What, as precisely as possible, was said on the tape.
2) If said tape is not produced, Thanh shall have the right to take additional discovery in
the form of reasonably noticed depositions of both Ngo and Ngo’s counsel, the
subject of which shall be limited to the tape.
3) Further, unless the tape is produced as ordered herein, at trial Thanh may attempt to
demonstrate spoliation of the tape by Ngo, including the right to request that
appropriate negative inferences be drawn against Ngo if spoliation is in fact found.
While the Court anticipates that this evidence would be admissible, it makes no
definitive ruling at this time.

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4) The Court DEFERS ruling on Thanh’s Motion for Spoliation (Dkt. 82).

SO ORDERED this 23rd day of July, 2013.

/s/________________
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE

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