Precourt et al v. Fairbank Reconstruction Corp. et al
Filing
113
ORDER granting in part and denying in part 87 Motion to Compel. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lori Precourt, Administrator
of the Estate of Carolyn Black
v.
Civil No. 10-cv-337-LM
Fairbank Reconstruction Corp.,
d/b/a Fairbank Farms; Greater
Omaha Packing Company, Inc.; and
Shaw’s Supermarkets, Inc.
O R D E R
Before the court is a motion to compel filed by Greater
Omaha Packing Company, Inc. (“GOPAC”).
Specifically, GOPAC asks
the court to compel
Defendant-Cross Plaintiff Fairbank to produce
electronic data responsive to discovery requests made
in this matter, compel Defendant Shaw’s to produce all
documents, electronic or otherwise, of inventory
tracking and shipments to its stores for September
2009, the deposition of Mr. Dennis Kwider and permit
GOPAC to conduct a trial deposition of Mr. Thomas
Hoffman.
Def.’s Mot. to Compel (doc. no. 87), at 1.
Fairbank
Reconstruction Corp. and Shaw’s Supermarkets, Inc. (collectively
“Fairbank”) object.
For the reasons that follow, GOPAC’s motion
to compel is granted in part and denied in part.
The Legal Standard
“Unless otherwise limited by court order, the scope of
discovery . . . [extends to] any nonprivileged matter that is
relevant to any party’s claim or defense – including the
existence, description, nature, custody, condition, and location
of any documents . . . .
Relevant information need not be
admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.”
Fed. R. Civ. P. 26(b)(1).
The court “must limit the frequency
or extent of discovery otherwise allowed” if and when it
determines that:
(i) the discovery sought is unreasonably cumulative
or duplicative, or can be obtained from some
other source that is more convenient, less
burdensome, or less expensive;
(ii) the party seeking discovery has had ample
opportunity to obtain the information by
discovery in the action; or
(iii) the burden or expense of the proposed discovery
outweighs its likely benefit . . . .
Fed. R. Civ. P. 26(b)(2)(C).
The Federal Rules of Civil
Procedure (“Federal Rules”) permit a party to “move for an order
compelling disclosure or discovery.”
Fed. R. Civ. P. 37(a)(1).
“[T]he purpose of pretrial discovery is to ‘make trial less
a game of blindman’s bluff and more a fair contest with the
basic issues and facts disclosed to the fullest practicable
2
extent.’”
Wamala v. City of Nashua, No. 09-cv-304-JD, 2010 WL
3746008, at *1 (D.N.H. Sept. 20, 2010) (quoting Macaulay v.
Anas, 321 F.3d 45, 53 (1st Cir. 2003)).
In this court, the
party moving to compel discovery over an adversary’s objection
bears the burden of showing that the information he seeks is
relevant and not privileged.
Id. at *2; see also Saalfrank v.
Town of Alton, No. 08-cv-46-JL, 2009 3578459, at *3 (D.N.H. Oct.
27, 2009).
With the foregoing principles as a backdrop, the court
turns to the specific discovery requests at issue.
A. Electronic Data from Fairbank
GOPAC first asks the court to compel Fairbank to produce
electronic data it used to create various records that it did
produce in response to three discovery requests that GOPAC
recited in its motion, as required by Local Rule 37.1.
objects on several grounds, including timeliness.
Fairbank
The court
agrees that GOPAC’s motion to compel should be denied as
untimely.
GOPAC propounded discovery requests on Fairbank in March of
2011.
Fairbank responded on April 6.
October 14.
Discovery closed on
GOPAC waited more than three months after that to
ask Fairbank for the electronic data it now asks the court to
3
compel Fairbank to produce.
of 2012.
Trial is scheduled for early April
As noted, Fairbank raised the timeliness issue in its
objection to GOPAC’s motion to compel.
GOPAC does not even
address that issue, with respect to Fairbank, in its reply
brief.
Under the Federal Rules, the court “must limit the
frequency or extent of discovery” upon a determination that “the
party seeking discovery has had ample opportunity to obtain the
information by discovery in the action.”
26(b)(2)(C)(ii).
Fed. R. Civ. P.
Moreover, it is appropriate to deny a motion
to compel based on the untimeliness of the underlying discovery
request.
See Wells Real Estate Inv. Trust II, Inc. v.
Chardon/Hato Rey P’ship, S.E., 615 F.3d 45, 58-59 (1st Cir.
2010).
Here, GOPAC received responses to its requests for
discovery from Fairbank six months before the close of
discovery.
According to GOPAC, “[w]hile Fairbank did produce
some records responding to the foregoing requests . . . it has
become apparent that it has not produced any electronic data
entered, stored and used to generate the records produced.”
Def.’s Mot. to Compel (doc. no 87), at 2.
That may be, but
GOPAC has given the court no reason why the alleged deficiency
of Fairbank’s production was not apparent in April of 2011, at
4
the very latest.
In other words, GOPAC had ample opportunity to
seek the information at issue before the close of discovery.
Because GOPAC waited several months after the close of discovery
to ask Fairbank for the evidence it now seeks, its request was
untimely.
Accordingly, as to Fairbank’s electronic data,
GOPAC’s motion to compel is denied.
B. Electronic Data from Shaw’s
GOPAC’s motion is also denied as to electronic data from
Shaw’s.
That category of information is mentioned in the first
paragraph of GOPAC’s motion, quoted above, and also in the last
paragraph of the motion, see Def.’s Mot. to Compel (doc. no.
87), at 8.
While GOPAC asks Shaw’s to “produce electronic data
responsive to GOPAC’s production requests,” GOPAC does not
clearly identify any production request for the data it now
seeks from Shaw’s.
That is a problem.
See LR 37.1(a)
(requiring motions to compel to include either a verbatim
recitation of the discovery request(s) at issue or a copy of the
actual discovery document).
Moreover, discovery from Shaw’s is
mentioned in the first and last paragraphs of GOPAC’s motion,
but is mentioned nowhere else, and GOPAC develops no argument on
that issue.
In any event, because GOPAC has not quoted from or
produced the production request(s) to which, in its view, Shaw’s
5
has not properly responded, GOPAC’s motion to compel, as to
electronic data from Shaw’s, is denied.
C. Kwider Deposition
It appears to be undisputed that GOPAC propounded a request
for production on Shaw’s in June of 2011, and that Shaw’s did
not produce the requested documents until December.
Shortly
thereafter, GOPAC noticed a deposition of Dennis Kwider, the
former head of food safety at Shaw’s.
Fairbank and/or Shaw’s
declined to make Kwider available for deposition, noting that
discovery had closed in October.
In light of Shaw’s untimely
production of documents, Shaw’s is not in the strongest position
to argue that GOPAC’s request to depose Kwider is untimely.
Beyond that, it is reasonable to assume that information in the
documents Shaw’s produced in December might be useful for
deposing Kwider.
Obviously, GOPAC could not use those documents
to depose Kwider until Shaw’s produced them.
Fairbank concedes
that Shaw’s document production is untimely, but argues that if
those documents were really necessary, GOPAC should have raised
its concerns before the end of discovery.
All things
considered, and especially in light of Shaw’s tardy document
production, GOPAC’s motion to compel is granted as to the Kwider
deposition.
6
D. Hoffman Deposition
The final issue is GOPAC’s proposed deposition of Thomas
Hoffman.
Fairbank retained Hoffman as an expert witness for
both this case and for its claims against GOPAC in the District
of Maine.
However, Hoffman did not testify in the Maine case,
and his expert report was never entered into evidence in that
case.
GOPAC did, however, depose Hoffman in connection with the
Maine case.
In this case, Hoffman has been withdrawn as an
expert witness, and his report will not be entered into
evidence.
Still, GOPAC asks this court to “permit [it] to
conduct a trial deposition of . . . Hoffman.”
Def.’s Mot. to
Compel (doc. no. 87), at 1.
GOPAC now characterizes the deposition it wishes to take as
a trial deposition, presumably in response to Fairbank’s refusal
to make Hoffman available for a discovery deposition, on grounds
that discovery closed in October.
The parties devote
considerable attention to GOPAC’s proposed deposition of Hoffman
– going so far as to skirmish over the correct interpretation of
an office note authored by Hoffman’s cardiologist in Maryland –
but that issue may be disposed of in relatively short order.
If
what GOPAC seeks is a trial deposition, and there is no reason
not to take GOPAC’s motion at face value, there is no action for
this court to take, especially not in the context of a motion to
7
compel.
Obviously, Rule 37 permits the court to issue orders
compelling parties to fulfill their discovery obligations.
But,
if GOPAC is seeking to conduct a trial deposition, rather than a
discovery deposition, Rule 37 does not apply.
Moreover, GOPAC
does not explain how this court has any authority to “permit” it
to proceed with a trial deposition of a third-party witness who
resides outside the court’s subpoena power.
Similarly, Fairbank
does not explain how: (1) it has standing to object to the
deposition of a third-party witness, which is Hoffman’s current
status since Fairbank withdrew him as an expert; or (2) this
court has any authority to block GOPAC’s deposition of a thirdparty witness who resides outside the court’s subpoena power.
As things stand, GOPAC seeks to conduct a trial deposition
of Hoffman.
Because Fairbank will not be calling Hoffman as an
expert, whether he may be deposed is a matter between GOPAC and
Hoffman, to be resolved in a forum that has subpoena power over
Hoffman.
Thus, to the extent GOPAC asks this court to permit it
to depose Hoffman, GOPAC’s motion to compel is denied.
Conclusion
For the reasons described above, GOPAC’s motion to compel,
document no. 87, is granted in part and denied in part.
Specifically, the court orders Fairbank and Shaw’s to make
8
Kwider available for deposition.
GOPAC’s other requests for
relief, however, are denied.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
March 5, 2012
Cc:
Paula J. Clifford, Esq.
Christopher P. Dombrowicki, Esq.
Andrew D. Dunn, Esq.
Stephen P. Ellenbecker, Esq.
D. Patterson Gloor, Esq.
Robert E. Mazow, Esq.
Brian D. Nolan, Esq.
Stephen J. Schulthess, Esq.
Shawn K. Stevens, Esq.
Ralph A. Weber, Esq.
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?