Bourne v. Arruda

Filing 156

ORDER denying 143 Motion for Sanctions; denying 144 Motion to Continue Discovery Period; and granting Bourne's request to lift the filing restriction originally imposed by the July 16, 2012, Order. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Samuel J. Bourne
v.

Civil No. 10-cv-393-LM

John R. Arruda, Jr., et al.

O R D E R
Before the court is Bourne’s affidavit (doc. no. 145),
which has been construed as a request that the court lift a
filing restriction imposed against him in this case, see Order
(doc. no. 126).

Also before the court is Bourne’s expedited

motion to continue the discovery period (doc. no. 144) and his
motion for sanctions (doc. no. 143).

Defendants have objected

to both motions (doc. nos. 152 and 153), and do not concur in
the request that the filing restriction be lifted (doc. no.
149).
Discussion
I.

Filing Restriction
On July 26, 2012, this court issued an order (doc. no. 126)

precluding Bourne from filing any further motions without the
court’s leave, until either party showed that Bourne had
answered defendants’ Interrogatory No. 16.

Bourne has since

filed an affidavit stating that he served an answer to that

interrogatory as required, and defendants have not contested
that assertion.

See Defs.’s Response (doc. no. 149).

Accordingly, the court lifts the filing restriction, effective
August 27, 2012, the date Bourne filed his affidavit (doc. no.
145).
II.

Motion for Sanctions
In his motion for sanctions, Bourne accuses defendants of

bad faith and discovery misconduct, and seeks sanctions.

Among

other things, Bourne points to Robert King’s privilege log and
an email sent by Robert King to Madison Town Clerk Marcia
Shackford, dated November 27, 2010, asking Shackford to forward
to her husband an email from King and then to delete the
original from her office computer, which Bourne claims proves
that defendants destroyed or otherwise failed to produce
documents he requested through the discovery process.
The court has considered Bourne’s arguments, examined the
documents cited by Bourne, and reviewed defendants’ response.
The court finds Bourne’s claims of bad faith and misconduct to
be generally unsubstantiated.

As to King’s privilege log,

Bourne has not shown that he propounded on defendants any
discovery request encompassing any document listed in King’s
privilege log; nor is it likely that defendants could have

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produced those documents, as defendants are not listed as
senders or recipients of any of them.
With respect to the November 27 email from King to
Shackford, however, Bourne has identified a single document that
was discoverable and not produced, namely, a short cover email
to Shackford from King, asking her to forward a longer email.1
Defendants, in September 2011, did in fact produce to Bourne the
substantive, longer email that King sought to send to the Town
Clerk’s husband, but did not produce the November 27 cover email
to the Town Clerk.
The court finds that the defendants’ failure to produce
this document was an oversight and not misconduct.
finds no evidence of defendants’ bad faith.

The court

The court accepts

as true counsel’s sworn statement that defendants in good faith
searched through their records to find all relevant documents
responsive to Bourne’s discovery requests.

The record presents

no proof that the missing email was willfully withheld, or that
certain files were intentionally omitted from the scope of the
search to stymy Bourne’s discovery.
1

The email missing from defendants’ production states, as
follows,
Hello Marcia:
Please forward this email to your home computer so
that Jesse can read it. Then please delete it from your
office computer. Bob King
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Assuming the email in question was deleted at King’s
request, the record does not suggest that any other discoverable
documents were deleted, or that Shackford or any other Town
agent had a policy or practice of deleting emails relating to
Bourne.

The court finds to be plausible King’s explanation that

he asked Shackford to delete the email because he intended to
send it only to Shackford’s husband, using the Town Clerk’s
computer only as a conduit, and not to have it archived as a
Town record.

Shackford is not named as a defendant, and Bourne

did not respond to counsel’s requests that he identify specific
custodians of Town records whose files should be searched for
responsive documents.

Bourne’s assertion that additional

responsive documents exist, or were likely destroyed, is purely
speculative.
sanctions.

Accordingly, the court denies the motion for
The court declines to award either party its costs.

III. Extension of Discovery Period
The discovery period in this case ended on August 31, 2012,
after delays engendered by discovery disputes had caused the
court to extend an April 2012 discovery deadline.

Bourne

requests an additional extension so that he can obtain documents
“concealed” by defendants and “withheld” by King.
Bourne has not substantiated either accusation.

This court

has generally denied Bourne’s recent discovery motions, with the
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exception of a single sentence in an email sent by King to a
nonparty, which this court ordered King to produce.

Production

of that portion of King’s email is not likely to trigger a need
for further discovery that could not have been foreseen and
scheduled earlier.
The parties have had ample time to conduct discovery and to
investigate issues in this case.

Bourne has not identified any

additional discovery that he would undertake if an extension
were granted, and he has not otherwise shown that an extension
is necessary.
Moreover, extending the discovery period could affect the
timeline for dispositive motions; as such motions may help
refine or resolve the issues in the case, further delays are not
in the interests of justice.

Accordingly, the motion to

continue the discovery period is denied.
Conclusion
For the foregoing reasons, the court DENIES the motion for
sanctions (doc. no. 143), and the motion to continue the
discovery period (doc. no. 144), and GRANTS Bourne’s request to
lift the filing restriction originally imposed by the July 16,

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2012, Order (doc. no. 126).

The parties shall bear their own

costs.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
September 25, 2012
cc:

Samuel J. Bourne, pro se
Brian J.S. Cullen, Esq.

LBM:nmd

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