HIBBERT v. BELLMAWR PARK MUTUAL HOUSING CORPORATION et al

Filing 64

MEMORANDUM OPINION AND ORDER granting 60 Motion to Amend/Correct Discovery. Signed by Magistrate Judge Joel Schneider on 8/1/13. (js)

[Doc. No. 60]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
MARK E. HIBBERT, SR.,
Plaintiff,
Civil No. 10-5386 (NLH/JS)
v.
BELLMAWR PARK MUTUAL HOUSING
CORPORATION, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on defendants’ “Joint Motion
to Amend/Correct Discovery Under Rule 26(e).”

[Doc. No. 60].

Defendants ask for leave to supplement their discovery responses
and

to

re-depose

plaintiff.

The

Court

received

plaintiff’s

response and defendants’ reply [Doc. Nos. 61, 62], and exercises
its discretion to decide defendants’ motion without oral argument.
L.

Civ.

R.

37.1(b)(4).

For

the

reasons

to

be

discussed,

defendants’ motion is GRANTED.
Background
Plaintiff

Mark H.

Hibbert’s

discrimination

removed to this Court on October 18, 2010.

complaint was

Hibbert is deaf and

unable to communicate except through sign language.

Hibbert v.

Bellmawr Park Mut. Housing Corp., C.A. No. 10-5386 (NLH/JS), 2013
WL 1314395, at *1 (D.N.J. March 28, 2013).

Plaintiff alleges that

on March 7, 2010, he lived at 506 West Browning Road, Bellmawr
Park, and he was unlawfully evicted and forced to move out of his

home.

Bob McCormick now lives in the home.

Plaintiff alleges,

inter alia, defendants “took advantage of his disability and
engaged in some sort of scheme to acquire his property.”
*2.

Id. at

Defendants contend Hibbert knowingly and voluntarily sold

McCormick his home.
Much has been done since the case was filed.

All discovery is

complete, Bellmawr’s motion for summary judgment was granted in
part and denied in part [Doc. Nos. 38, 39], and the Joint Final
Pretrial Order is close to being finalized.1 Until just recently
defendant McCormick represented himself in the case.

Joseph M.

Feeney, Esquire, entered his appearance for McCormick on May 3,
2013. [Doc. No. 43].

With leave of Court McCormick filed his

motion for summary judgment on May 22, 2013. [Doc. No. 44].

The

motion has not yet been decided.
Defendants represent that on April 29, 2013, Feeney sent a
request for public records to the Maine Human Rights Commission
(“MHRC”) requesting records regarding three (3) claims plaintiff
made.

July 12, 2013 Letter Brief (“LB”) at 3.

Feeney received the

documents on July 1, 2013, and produced them to plaintiff on July
3, 2013. Id.

The documents include 750 pages related to Hibbert’s

discrimination complaints made in Maine.

Feeney also produced

additional documents on July 9, 2013, regarding Hibbert’s real

1

Defendants Bellmawr Park Mutual Housing Corporation and Pat
Levin (property manager of Bellmawr Park) will be collectively
referred to as “Bellmawr.”
2

estate transactions in Maine.

Id. at 2.

Defendants seek to supplement their discovery responses to
include the documents they received from Maine.

Defendants argue

they only recently received these documents which should have been
produced with plaintiff’s Fed. R. Civ. P. 26 disclosures and
answers to interrogatories and document requests.

Defendants also

want to re-depose plaintiff about the recently produced documents.
Hibbert opposes defendants’ motion and argues defendants should
have obtained the new documents earlier.
documents

show

plaintiff

lied

at

his

Hibbert denies the

deposition

and

argues

defendants can cross-examine him at trial.
Discussion
Pursuant to Rule 26(e) a party is under a duty to supplement
its disclosures and discovery responses if its original response is
incomplete.

Rule 37(c)(1) provides that if a party fails to

provide information as required by Rules 26(a) or (e), the party is
not allowed to use that information to supply evidence unless the
failure was “substantially justified.”
obvious,

plaintiff’s

failure

to

For reasons that are

produce

relevant

requested

documents substantially justifies defendants’ failure to identify
the documents earlier.
Plaintiff argues defendants’ supplement is late.
disagrees.
received the

The Court

It is not disputed that defendants only recently
documents

at

issue

3

and

that

they

were produced

immediately after they were received.

Hibbert alleges defendants

should have obtained the documents earlier.

He argues, “[a]

cursory internet search or simple letter request to the MHRC by any
of the defendants would have provided defendants in a timely manner
with

all

of

the

information

and

documentation

requesting be included in their case.”

Therefore,

his

of

the

failure

available
to

discovery

produce

now

Until just recently

McCormick was proceeding pro se in the case.
knew

are

July 19, 2013 LB at 1.

There are several responses to this argument.

McCormick

they

the

It is unlikely
tools

documents

in

Maine.

earlier

was

substantially justified. Immediately after McCormick’s counsel was
engaged he requested records from Maine and they were produced
right

after

they

were

received.

McCormick’s

counsel

acted

diligently and promptly. Plaintiff ignores the fact that he should
have produced in discovery most if not all of the documents
defendants recently learned about.

For example, plaintiff did not

produce requested contracts and HUD documents, and in response to
interrogatories he did not identify the lawsuits or complaints he
made in Maine.

See July 12, 2013 LB at 2-3.

This information is

unquestionably relevant to perhaps the key issue in the case;
namely,

whether

plaintiff

knowingly

and

residence to McCormick and moved to Maine.2

2

voluntarily

sold

his

Hibbert’s failure to

For example, according to defendants the documents show
that plaintiff had to bring $16,184.70 to the closing in Maine on
March 8, 2010. July 22, 2013 LB at 2. McCormick paid plaintiff
4

produce relevant and requested discovery excuses defendants’ late
document production. A party cannot withhold relevant documents in
discovery and then complain when a defendant discovers them and
seeks to use them to support its defense.
Another
because

it

reason
furthers

why
the

defendants’
interests

supplement
of

justice.

is

granted

The

is

recently

discovered documents are unquestionably relevant to claims in the
case and defendants’ defenses. Hibbert should not benefit from his
failure to produce relevant and requested discovery.

Otherwise,

parties would be encouraged to “hide the ball” and hope that
diligent opposing counsel do not discover documents that should
have been produced in discovery.3

Further, the supplement is

especially appropriate in this case since the Honorable Noel L.
Hillman noted in his March 28, 2013 Opinion that it was a “close
call” when he denied Bellmawr Park’s motion for summary judgment.

$20,000 on March 7, 2010. Id. A fair inference is that
plaintiff used McCormick’s money for the March 8, 2010 closing.
Nevertheless, defendants represent that plaintiff testified he
did not know what McCormick’s money was for, he was “just
holding” the payment, and he did not use McCormick’s money at the
March 8, 2010 closing. Id.
3

Plaintiff argues the produced documents are “incoherent and
are replete with erasures and redactions, making it virtually
impossible to properly discern their subject matter.” July 19,
2013 LB at 1. He also argues the documents are “inherently
incompetent” and he objects to their authenticity. Id. These
arguments are directed to the admissibility of the documents at
trial, not whether they are discoverable. Discovery is obviously
broader than the standard for the admissibility of evidence at
trial. Hite v. Peters, C.A. No. 07-4492 (RMB/AMD), 2009 WL
1748860, at *3 (D.N.J. June 19, 2009)(citation omitted).
5

Hibbert, 2013 WL 1314395, at *11.

This Court does not know if the

new documents will “tip the scales” in Bellmawr Park’s favor.
Nonetheless, the new documents are unquestionably relevant and when
the case is ultimately decided on the merits the fact finder should
have

all

relevant

information

before

prejudiced by defendants’ supplement.

it.4

Plaintiff

is

not

It is likely that plaintiff

already had or has copies of the documents from Maine. In addition,
plaintiff cannot be surprised by the documents because they either
were prepared by or for him, and/or they were sent to him.
The Court will now turn to defendants’ request to re-open
plaintiff’s deposition.

In other words, to re-depose plaintiff.

This request is also granted.

Pursuant to Rule 30(a)(2)(A)(ii),

leave of Court is required to take a deponent’s deposition twice.
The Court weighs the factors in Rule 26(b)(2)(i-iii) to determine
if leave should be granted.

V. Mane Fils, S.A. v. International

Flavors and Fragrances, Inc., C.A. 06-2304 (FLW), 2010 WL 1855873,
at *8 (D.N.J. May 6, 2010).

These factors include whether the

discovery is unreasonably cumulative or duplicative, whether the

4

For example, Judge Hillman’s Opinion denying Bellmawr’s
motion for summary judgment noted that plaintiff testified at his
deposition “that he is unable to understand and communicate
proficiently in the English language....” 2013 WL 1314395, at
*9. Given the nature of the documents plaintiff executed in
Maine, defendants may want to refer to the documents to impeach
plaintiff. Judge Hillman also noted that it was not clear from
the record if plaintiff planned to move out of his home. Id. at
*11. The new documents are unquestionably relevant to this
issue.
6

party has had ample opportunity to obtain the information in
discovery, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.

The Court finds that all

of these factors weigh in defendants’ favor.

The majority of the

information in the new documents is new, the documents at issue
were not previously produced, and the new information is relevant
to

perhaps

the

key

issue

in

the

case.

Although

defendants

generally knew about plaintiff’s relocation efforts in Maine, they
did

not

know

all

the

important

details

revealed

in

the

new

documents.
The importance of the information to be addressed at Hibbert’s
second deposition outweighs Hibbert’s minimal inconvenience of
having to be deposed twice.

Having not read the entirely of

Hibbert’s deposition, the Court is not at this time deciding
whether Hibbert did or did not tell the truth and/or was deceptive
at his July 6, 2011 deposition.
deposition

transcript

However, from the portions of the

defendants

Hibbert’s testimony was incomplete.

provided,

it

appears

that

See July 12, 2013 LB at 4-6.

Given this showing defendants should have an opportunity to explore
the new documents with plaintiff at his pre-trial deposition.

If

the new documents had been timely produced by plaintiff, defendants
would have undoubtedly questioned plaintiff about them at his
deposition.
recently

Defendants should not be prejudiced because they only

learned

of

relevant

documents

7

plaintiff

should

have

produced before his deposition.

Again, plaintiff should not

benefit from his failure to timely produce relevant

discovery.

Because of the late production defendants have shown good cause to
re-depose

plaintiff

documents.5

but

only

about

the

recently

produced

See Miller v. Federal Express Corp., 186 F.R.D. 376,

389 (W.D. Tenn. 1999)(“Although the re-opening of depositions is
disfavored as a general rule, existing case law, as well as common
sense, supports allowing redeposal where a party fails to disclose
relevant

information

...

which

it

intervening deposition has occurred.”).

later

reveals

after

an

See also All Star Seed v.

Nationwide Agribusiness Ins. Co., No. 12CV146-L (BLM), 2013 WL
1882260, at *7 (S.D. Cal. May 3, 2013)(granting motion to re-open
depositions because of late produced documents); Syncora Guarantee
Inc. v. EMC Mortg. Corp., No. MC 13-80037 SI, 2013 WL 1208936, at
*3 (N.D. Cal. March 25, 2013).
Conclusion
Accordingly, for all the foregoing reasons, it is hereby
ORDERED this 1st day of August, 2013, that defendants “Joint Motion

5

In Kleppinger v. Texas Department of Transportation, 283
F.R.D. 330, 336 n. 7 (S.D. Tex. 2012), the Court noted that even
though Rule 30(a)(2) does not mention “good cause,” most courts
use a good cause standard when deciding whether a witness may be
re-deposed. For the reasons discussed herein, the Court finds
good cause for all defendants to re-depose plaintiff. Although
Bellmawr did not obtain the documents at issue, it would be
anomalous to permit McCormick to re-depose Hibbert about the
documents but to deny Bellmawr the same opportunity. Bellmawr
was equally prejudiced by Hibbert’s failure to timely produce
relevant and requested discovery.
8

to Amend/Correct Discovery Under Rule 26(e)” is GRANTED; and it is
further
ORDERED that defendants are granted leave to supplement their
disclosures and answers to interrogatories and document requests,
and their portion of the Joint Final Pretrial Order, to include the
recently produced documents referred to herein; and it is further
ORDERED

that

defendants

are

granted

leave

to

re-depose

plaintiff but only concerning the recently produced documents and
information. The deposition shall be completed by August 30, 2013;
and it is further
ORDERED that the Court will separately schedule a status
conference in September 2013 to address any requests for additional
discovery and/or sanctions.6

s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

6

This Order is entered without prejudice to defendants’
right to move for sanctions and/or dismissal based on plaintiff’s
deposition testimony. The Court is not presently weighing in on
whether the relief is appropriate.
9