KELLY v. ATLANTIC CAPE FISHERIES, INC. et al

Filing 58

MEMORANDUM OPINION AND ORDER, Plaintiff's "late notice" objections to defendants' late produced emails (KK4524 - 4797 and K5033 - 5152) are OVERRULED. This Order is entered without prejudice to plaintiff's right to assert all other appropriate objections to the use of the exhibits at trial, etc. Signed by Magistrate Judge Joel Schneider on 10/30/17. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
KIERAN KELLY,
Plaintiff,
Civil No. 15-6926 (NLH/JS)
v.
ATLANTIC CAPE FISHERIES, INC.,
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This
notice”

matter

is

objections

before
to

the

Court

defendants’

on

plaintiff’s

proposed

trial

“late

exhibits

(KK4524 – 4797 and KK 5033 – 5152) that defendants recently
produced. 1 [Doc. No. 50]. The Court received the parties’ written
submissions

[Doc.

Nos.

46,

53,

54]

and

recently

held

oral

argument. For the reasons to be discussed, plaintiff’s “late
notice” objections are OVERRULED.
Background
The parties are familiar with the background of this matter
so

a

detailed

summary

will

not

be

provided.

Plaintiff’s

complaint was filed on September 17, 2015. Briefly, plaintiff
claims he was injured on defendants’ vessel on June 13, 2013.
Defendants vigorously deny responsibility for plaintiff’s injury
1

Plaintiff does not assert “late notice” objections to KK4798 –
5032.
1

and claim plaintiff was not injured on their vessel. Discovery
in the case has been extensive and contentious. Amongst the most
prominent issues are whether plaintiff was injured on the vessel
or

somewhere

else,

and

whether

the

vessel

regularly

leaked

hydraulic oil. At the present time all fact and expert discovery
is complete and a trial date has been set in January 2018. The
parties

are

in

the

process

of

finalizing

the

Joint

Final

Pretrial Order which should be entered shortly.
Defendants recently produced emails that were requested in
the case long ago. The emails date from late 2012 to January
2014, and include communications between plaintiff and Atlantic
Cape Fisheries’ President and Vice-President. The parties do not
dispute

the

emails

are

relevant

to

the

case

and

they

were

requested long ago in discovery. The parties also do not dispute
that in January, 2017, defense counsel assured plaintiff that
defendants would search for all relevant emails. Nevertheless,
despite this assurance the emails were only recently produced.
According to defense counsel, after his client recently sent him
an email that was not previously produced in discovery, he asked
his client to search for and identify all of plaintiff’s emails.
This resulted in the cache recently produced. Defense counsel
represents,
produced

and

their

it

has

emails

to

not

been

plaintiff

discovered.
2

disputed,

that

defendants

promptly

after

they

were

Plaintiff now wants to exclude the recently produced emails
on the ground they were produced late and because plaintiff will
be prejudiced by their use. Plaintiff claims he did not have the
benefit of the emails when he deposed key witnesses, the emails
may

open

the

door

to

more

discovery,

and

the

emails

will

distract from counsel’s trial preparation. Plaintiff also argues
the amount of insurance available to plaintiff will be decreased
because of the transaction costs defense counsel will incur from
use of the emails. In response, defendants argue plaintiff will
not be prejudiced because plaintiff sent or received most of the
emails at issue. Further, defendants agree to pay the cost of
any additional discovery plaintiff will take because of their
late production. Also, if plaintiff’s “late notice” objections
are

overruled

defendants

will

agree

to

withdraw

their

“late

notice” objections to plaintiff’s trial exhibits.
Discussion
As to the applicable law to apply, there is no dispute. The
Third

Circuit

has

identified

five

factors

to

analyze

to

determine whether late produced evidence should be precluded as
a sanction pursuant to Fed. R. Civ. P. 37(c). These factors are:
(1)

the

prejudice

or

surprise

to

a

party

against

whom

the

evidence is offered; (2) the ability of the injured party to
cure the prejudice; (3) the likelihood the admission of the late
evidence would disrupt the orderly and efficient trial of the
3

case

or

of

other

cases

in

the

court;

(4)

bad

faith

or

willfulness in failing to comply with the Court’s Orders; and
(5) the importance of the evidence to the proffering party. See
Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894,
904 (3d Cir. 1977); In re Mercedes-Benz Anti-Trust Litig., 225
F.R.D. 498, 506 (D.N.J. 2005). In addition, as set forth in ABB
Air Preheater, Inc. v. Regenerative Environmental Equipment Co.,
Inc.,

167

F.R.D.

omitted),“[t]he

668,

Third

671

Circuit

(D.N.J.

has,

on

1996)(citations

several

occasions,

manifested a distinct aversion to the exclusion of important
testimony absent evidence of extreme neglect or bad faith on the
part of the proponent of the testimony.”
Applying
Circuit’s

the

Meyers

reluctance

to

factors,
exclude

and

recognizing

relevant

the
the

evidence,

Third
Court

overrules plaintiff’s late notice objections. The Court finds
that the Meyers factors weigh in defendants’ favor.
As

to

factor

number

counsel

is

“surprised”

one,

by

it

is

defendants’

true

that

emails.

plaintiff’s

However,

this

surprise is tempered by the fact that plaintiff sent or received
most of the emails. Thus, it is not completely accurate to argue
plaintiff

is

surprised

by

the

emails.

Further,

although

defendants are certainly to blame for not producing their emails
earlier, plaintiff is not blameless. At one time plaintiff had
to have copies of the emails available to him on his phone or
4

computer. Plaintiff, therefore, could have discovered the emails
himself and produced them to defendants in discovery. Further,
plaintiff denied at his deposition that he communicated with
defendants
answer,

by

it

email.

would

If

have

plaintiff
alerted

gave

defendants

defendants

to

the

a

correct

fact

that

relevant emails existed and it is possible they would have been
produced earlier. By no means does the Court intend to sidestep
defendants’ transgressions. However, the Court simply points out
that

not

all

equities

weigh

in

plaintiff’s

favor.

The

first

Meyers factor, therefore, is neutral.
As to the second Meyers factor, the Court finds that the
prejudice to plaintiff from defendants’ late production can be
cured. The Court will grant plaintiff leave to take the relevant
discovery he reasonably needs to address the prejudice caused by
defendants’

late

production.

At

a

minimum

this

includes

re-

deposing Messrs. Martin and Cohen, Atlantic Fisheries’ President
and Vice-President, and Capt. Tasker who took over as Captain of
defendants’ vessel after plaintiff left. 2 Nonetheless, the Court
makes it clear it is not giving plaintiff a “blank check” to
take any discovery he wants. At this time the Court is not
convinced

plaintiff

legitimately

needs

any

other

depositions.

Nevertheless, if plaintiff shows good cause the Court will grant
plaintiff

leave

to

take

additional

2

discovery.

The

additional

The Court is not certain of the spelling of the new Captain’s
name.
5

cost

to

re-depose

defendants’

witnesses

is

a

non-issue.

Defendants have already agreed to pay these costs, including
plaintiff’s attorney’s fees. As to plaintiff’s claim that he is
distracted from his trial preparation, the Court does not give
the

argument

months

much

away.

litigator

weight.

Two,

who

is

One,

plaintiff’s
undoubtedly

trial

is

counsel
familiar

still
is

at

an

with

least

two

experienced
dealing

with

unforeseen events shortly before trial. Since any prejudice to
plaintiff

can

be

cured,

the

second

Meyers

factor

weighs

in

defendants’ favor.
The

third

Meyers

factor

examines

whether

trial

will

be

disrupted if the late evidence is used. This will not occur here
since trial is not scheduled to start until January 2018 at the
earliest. 3 Thus, the third factor weighs in defendants’ favor.
The fourth Meyers factor examines if defendants acted in bad
faith

or

willfully.

Although

there

is

little

question

defendants’ actions in failing to identify and produce their
emails earlier were negligent, there is no evidence defendants
acted with subjective bad faith. In other words, defendants did
not

purposely

conceal

documents

from

plaintiff.

According

to

defendants this is nonsensical since defendants believe their
emails

help

their

case.

The

fourth

Meyers

factor

weighs

in

defendants’ favor.
3

Defense counsel recently asked the Court to move the start of
trial to the week of February 19, 2018. [Doc. No. 57].
6

The

last

Meyers

factor

examines

the

importance

of

the

evidence to the proffering party. As to this factor the equities
weigh

in

defendants’

favor.

Defendants’

key

defense

is

that

plaintiff was not injured on their vessel as claimed and the
vessel did not leak hydraulic fluid as much as plaintiff claims.
Defendants’

emails

are

important

to

this

issue

because,

according to defendants, the emails do not mention plaintiff’s
physical

complaints

and

the

alleged

oil

leaks.

Given

this

absence, defendants view the emails as crucial to impeaching
plaintiff’s credibility. In view of the Third Circuit’s aversion
to

excluding

record

on

relevant

which

evidence,

to

weigh

in

the
on

jury

should

plaintiff’s

have

a

full

credibility.

Plaintiff will have a full and fair opportunity at trial to
explain why certain items were or were not mentioned in his
emails. Thus, the fifth Meyers factor also weighs in defendants’
favor.
Conclusion
For

all

plaintiff’s

the

foregoing

“late

notice”

reasons,

the

objections

Court
to

will

overrule

defendants’

late

produced emails (KK4524 – 4797 and KK5033 - 5152). The Court
finds

that

the

Meyers

factors

weigh

in

defendants’

favor.

Although there is no question defendants should have produced
their emails earlier, plaintiff should have already known about
them because he sent or received the emails at issue. Further,
7

any prejudice to plaintiff from the use of the emails can be
cured. Moreover, there is no evidence defendants acted in bad
faith. Last, the interest of justice compels that the case be
decided

on

a

full

record,

especially

where

any

prejudice

to

plaintiff from the use of defendants’ late produced emails can
be cured.
O R D E R
Accordingly, for all the foregoing reasons, it is hereby
ORDERED this 30th day of October, 2017, as follows:
1.
late

Plaintiff’s

produced

OVERRULED.

emails

This

“late

notice”

(KK4524

Order

is

-

objections

4797

entered

and

to

K5033

defendants’
5152)

are

prejudice

without

-

to

plaintiff’s right to assert all other appropriate objections to
the use of the exhibits at trial.
2.

Plaintiff is granted leave to re-depose Messrs. Martin

and Cohen and Capt. Tasker. The depositions shall be taken on a
date and at a place chosen by plaintiff.
3.

Plaintiff

is

granted

leave

to

move

for

good

cause

shown to take additional discovery to cure any alleged prejudice
caused by defendants’ late production. All additional discovery
shall be completed by December 1, 2017.
4.

After

receiving

plaintiff’s

invoice

supported

by

an

affidavit that complies with L. Civ. R. 54.2, defendants shall
promptly

pay

plaintiff

the

reasonable
8

cost

of

the

foregoing

discovery,

including

plaintiff’s

attorney’s

fees

and

court

reporter and transcript costs.
5.

Defendants’

“late

notice”

objections

to

plaintiff’s

trial exhibits are denied as moot, defendants representing their
objections

would

be

withdrawn

if

plaintiff’s

“late

notice”

objections addressed herein are OVERRULED.
6.
a

If requested by plaintiff, defendants shall undertake

forensic

review

of

their

computers

by

a

qualified

disinterested third-party to assure that all relevant ESI has
been produced. Defendants shall pay the cost of the review.
7.

The final executed version of the Joint Final Pretrial

Order shall be served by December 11, 2017. 4
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

4

The Court is not keeping a copy of the complete set of late
produced emails that defendants forwarded.
9