Moody et al v. Michigan Gaming Control Board et al
Filing
227
OPINION and ORDER Denying Plaintiffs' 221 MOTION to Compel. Signed by District Judge Gershwin A. Drain. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN MOODY, ET AL.,
Plaintiffs,
Case No. 12-cv-13593
v.
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
MICHIGAN GAMING CONTROL
BOARD, ET AL.,
UNITED STATES MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS
Defendants.
/
OPINION AND ORDER DENYING PLAINTIFFS’ MOTION TO COMPEL
[#221]
I. INTRODUCTION
On June 18, 2013, this Court entered an Order Denying in part Plaintiffs’
Motion to Compel Discovery. Dkt. 92. At issue in that Motion was whether
Defendants were required to turn over certain criminal investigation records and a
copy of the recording and/or transcript of a sworn statement that Plaintiff John
Moody gave to Special Assistant Attorney General (“SAAG”) Doug Baker in
March 2012. Id. Defendants objected to these discovery requests, arguing the
materials were privileged. Id.
In its June 18, 2013 Order, the Court ruled that the recording and/or
transcript of Plaintiff Moody’s sworn statement were protected by the Prosecutor’s
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Investigative Subpoena Act, as codified under Michigan state law.
Id.
Accordingly, it Denied Plaintiff’s Motion to Compel these materials. Id. With
respect to the criminal investigation records, the Court conducted an in-camera
review of the materials and determined that only a portion of the records were
protected by privilege. Id.; Dkt. 126, pp. 3-4 (Pg. ID 3494-95). Hence, the Court
directed Defendants to turn over only those records that were not within the
protected privilege. Dkt. No. 126, pp. 3-4 (Pg. ID 3494-95).
Present before the Court is Plaintiffs’ Motion to Compel pursuant to Federal
Rules of Civil Procedure 34 and 45, filed on November 30, 2018. Dkt. No. 221.
Within the Motion, Plaintiffs request discovery of several documents, the majority
of which were the subject of the Court’s June 18, 2013 Order. Id. No hearing is
necessary to resolve the issues within this Motion. See E.D. Mich, LR 7.1(f)(2).
For the reasons set forth below, the Court will DENY Plaintiffs’ Motion [#221].
II. DISCUSSION
Plaintiffs seek a Court Order requiring non-party Michigan Attorney
General’s Office to produce (1) any and all reports, transcripts, or additional
documentation of the interview that SAAG Baker conducted with Plaintiff Moody
in March 2012, and (2) an immunity petition that the Attorney General filed with
the state court related to Plaintiff Moody’s March 2012 sworn statement. Id. at p.
2 (Pg. ID 4545). In addition, Plaintiffs request Defendants to produce the criminal
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investigation records that the Court previously ruled were protected by privilege
under Michigan state law. Id. The Court will address each of these requests
separately.
A. Transcript of Plaintiff John Moody’s March 2012 Sworn Statement
and Related Materials
Plaintiffs acknowledge that their request for the transcript of Plaintiff
Moody’s March 2012 sworn statement was addressed by the Court’s June 18, 2013
Order. Id. at p. 17 (Pg. ID 4560). Still, Plaintiffs argue that the Court erred in its
decision. Id. The Court will thus construe this as a Motion for Reconsideration,
which is governed by Local Rule 7.1(h).
Local Rule 7.1(h) provides that a motion for reconsideration must be filed
within 14 days after entry of the judgment or order. E.D. Mich. LR 7.1(h)(1).
Generally, “the Court will not grant motions for rehearing or reconsideration that
merely present the same issues ruled upon by the Court, either expressly or by
reasonable implication.” E.D. Mic. LR 7.1(h)(3). Rather, to prevail, “[t]he movant
must not only demonstrate a palpable defect by which the Court and the parties and
other persons entitled to be heard on the motion have been misled but also show
that correcting the defect will result in a different disposition of the case.” Id.
Importantly, a palpable defect is “a defect which is obvious, clear, unmistakable,
manifest, or plain.” Ososki v. St. Paul Surplus Lines Ins. Co., 162 F. Supp. 2d 714,
718 (E.D. Mich. 2001).
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Here, the Court will deny Plaintiffs’ Motion for two reasons.
First,
Plaintiffs’ Motion cannot be considered timely under any sense of the word. Any
challenge to the Court’s June 18, 2013 Order would have needed to be filed by
July 2, 2013. Plaintiffs did not file the instant Motion until November 30, 2018,
over five years later.
Second, Plaintiffs present the same arguments already ruled upon by the
Court. Plaintiffs have not shown a palpable defect by which the Court was misled.
Instead, Plaintiffs simply disagree with the Court’s prior interpretation of Michigan
statutory and case law. This is not the type of defect that warrants reversing the
Court’s prior decision.
Moreover, even if the Court were to reach the merits of Plaintiffs’ Motion to
Compel, the discovery cut-off date in this case was May 1, 2013. See Dkt. No. 43.
Finding no good reason to reopen discovery at this juncture, the Court will DENY
Plaintiffs’ discovery request. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be
modified only for good cause and with the judge’s consent.”).
B. Petition for Immunity
Plaintiffs next ask the Court for an Order directing non-party Michigan
Attorney General’s Office to produce the petition for immunity related to Plaintiff
Moody’s March 2012 sworn statement. Dkt. No. 221, p. 2 (Pg. ID 4545). It does
not appear that this request was contemplated by the Court’s June 18, 2013 Order.
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Hence, the Court will construe this as a brand-new discovery request, but one that
must be denied for untimeliness. As already stated, the discovery cut-off date in
this case was May 1, 2013. See Dkt. No. 43. Because the Court finds no good
cause to reopen discovery, the Court will DENY Plaintiffs’ discovery request.
C. Previously Withheld Criminal Investigation Records
Last, Plaintiffs ask the Court for an order requiring Defendants to produce
several criminal investigation records that the Court previously held were protected
by privilege. Dkt. No. 221, pp. 2-4 (Pg. ID 4545-47). Plaintiffs argue that the
grounds for the privilege -- an ongoing criminal investigation -- no longer exist.
Id. Therefore, Plaintiffs suggest that Defendants are obligated by Federal Rule of
Civil Procedure 26(e) to supplement their responses to Plaintiffs’ earlier request for
documents. See id. The Court will disagree.
Rule 26(e), in relevant part, provides that a party who has responded to a
request for production must supplement or correct its disclosure or response in a
timely manner if “the party learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties during the discovery
process or in writing.” Fed. R. Civ. P. 26(e).
Here, Defendants’ discovery responses do not appear incomplete or
incorrect. Over four years ago, the Court conducted an in-camera review of the
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documents at issue and ruled that the withheld documents were protected by
privilege. See Dkt. No. 92; Dkt. No. 126. Hence, the Court finds no support for
the argument that Defendants have an ongoing duty to supplement these
disclosures.
To the extent Plaintiffs are attempting to relitigate whether the documents at
issue are privileged, the Court will again remind Plaintiffs that the discovery cutoff date in this case was May 1, 2013. See Dkt. No. 43. Finding no good cause to
reopen discovery, the Court will DENY Plaintiffs’ discovery request.
V. CONCLUSION
For the reasons stated herein, the Court will DENY Plaintiffs’ Motion to
Compel [#221].
IT IS SO ORDERED.
Dated:
January 29, 2019
s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, January 29, 2019, by electronic and/or ordinary mail.
s/Teresa McGovern
Case Manager
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