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
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