Colpitts v. Blue Diamond Growers

Filing 60

ORDER: denying without prejudice 59 Letter Motion for Local Rule 37.2 Conference. The request is denied without prejudice for failure to comply with the Court's Individual Rule 5(c), directing parties to "confer in good faith with the op posing party, in person or by telephone, in an effort to resolve the dispute." From the submissions, it appears that discussions between the parties were ongoing at the time of filing, Exh. 2 at 1, and that the discussions occurred exclusively over email, Exh. 5 at 1. The parties are directed to file a joint status letter describing the parties' positions with regard to any remaining dispute, and any extension of discovery, by January 13, 2022. Fact discovery is extended to that date nunc pro tunc. SO ORDERED. (Signed by Judge John P. Cronan on 1/11/2022) (ama)

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DLA Piper LLP (US)
1251 Avenue of the Americas, 27th Floor
New York, New York 10020-1104
www.dlapiper.com

January 10, 2022

Colleen Carey Gulliver
[e-mail]
T 212.335.4737
F 917.778.8037

BY ECF AND E-MAIL
The Honorable John P. Cronan
Southern District of New York
United States Courthouse
500 Pearl Street, Room 1320
New York, New York 10007
[e-mail]
Re:

Colpitts v. Blue Diamond Growers, Case No. 1:20-cv-02487 (S.D.N.Y.)

Dear Judge Cronan:
We represent defendant Blue Diamond Growers (“BDG”) in the above-referenced matter.
We write consistent with Local Rule 37.2 and Sections 3(B) and 5(C) of Your Honor’s Individual
Rules and Practices in Civil Cases to request further relief from the Court as a result of plaintiff
Matthew Colpitts’ failure to comply with the Court’s December 27, 2021 Order (Dkt. No. 58)
granting BDG’s Letter Motion to Compel (Dkt. No. 55).
The Court ordered Mr. Colpitts to, among other things, produce “an affidavit describing
the preservation instructions that were orally transmitted to Plaintiff” by his counsel. (Dkt. No.
58). The Court also extended the fact discovery deadline to January 10, 2022 to allow time for a
continued deposition of the named plaintiff following production of the affidavit and the other
items ordered to be produced. (Id.). The plaintiff’s affidavit is deficient and the plaintiff has
refused to appear for a continued deposition, as outlined below.
Affidavit. The affidavit provided by plaintiff’s counsel states only that he, at some
unknown time, “orally transmitted preservation instructions . . . to not discard from his possession
relevant material to this litigation, including any old receipts he had not thrown away.” (Ex. 1 at
¶ 2). The affidavit fails to state even the most basic facts regarding the instruction, including:
(1) the date the oral instruction was given to Mr. Colpitts; (2) how plaintiff’s counsel defined the
scope of “relevant material to this litigation,” aside from “any old receipts he had not thrown
away,” for Mr. Colpitts; and (3) what categories of documents and information Mr. Colpitts was
instructed to preserve.
BDG repeatedly requested that plaintiff’s counsel correct these deficiencies. (Ex. 2).
Plaintiff’s counsel has not done so, instead taking the position that Mr. Colpitts is only required to
preserve receipts even though the scope of relevancy in a consumer class action far exceeds
receipts and BDG’s document requests sought numerous types of information beyond receipts.
(Compare Ex. 2, with Dkt. No. 55 at Ex. 5). Plaintiff’s baseless position is demonstrated by his

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The Honorable John P. Cronan
January 10, 2022
Page Two
own production of emails and calendar records responsive to BDG’s document requests (see Dkt.
No. 58) only after being ordered by the Court in response to BDG’s first motion to compel.
BDG respectfully requests that the Court issue an order directing plaintiff’s counsel to
provide a revised affidavit1 providing, at minimum: (1) the date when he gave the oral preservation
instruction to the plaintiff; (2) whether he informed the plaintiff that he should retain any other
information beyond receipts; and (3) what sources of information he was obligated to preserve.
Deposition of the Plaintiff. During his December 6, 2021 deposition, the plaintiff testified
that he had not properly preserved or searched for documents responsive to BDG’s discovery
requests. (See generally Dkt. No. 55). And, BDG expressly reserved its right to continue the
deposition following further production. (Ex. 3 at 82:13-19). Thus, in its first motion to compel,
BDG sought a “short extension of the fact discovery deadline to permit . . . a continued deposition
of the named plaintiff, if necessary, after production of the information sought.” (Dkt. No. 55).
Accordingly, after the Court granted BDG’s Motion to Compel and extended the discovery
deadline, BDG requested that plaintiff’s counsel provide plaintiff’s availability for a continued
deposition. (Ex. 4). In response, plaintiff’s counsel repeatedly declined to provide plaintiff’s
availability and claimed that the Court did not explicitly order such relief and demanded that BDG
provide “authority” in order for the plaintiff to appear. (Id.).
BDG explained that it sought a continuation of the deposition in conjunction with its
request for the production of documents and extension of the discovery deadline, that the Court
granted BDG’s motion to compel in full, and again sought the plaintiff’s availability for a
continued deposition before the new fact discovery deadline. (Id.). The plaintiff ignored repeated
requests to expressly respond to BDG’s request for a continued deposition until BDG stated that
it planned to request relief from the Court, at which point plaintiff’s counsel again requested the
“basis” for the continued deposition. (See id.). BDG respectfully requests that the Court issue an
order directing the plaintiff to appear for a continued deposition following his satisfactory
production of the documents described above.
Further Brief Extension of Time for Fact Discovery. As a result of the plaintiff’s repeated
failure to comply with the Court’s Order, BDG requests a further brief extenson of the fact
discovery deadline (currently today) to allow time for resolution of this dispute, the satisfactory
production of the information sought, and to allow BDG to continue its deposition of the plaintiff
following such production. The plaintiff does not consent to this request. No other deadline set
by the Court should be affected by a short extension.
Sanctions. When a party fails to comply with an order compelling the production of
documents, the Court “may issue further just orders.” Fed. R. Civ. P. 37(b)(2)(a)(i), (iii), (v).
“‘Where, as here, the nature of the alleged breach of a discovery obligation is the non-production
1

Following repeated requests, plaintiff’s counsel provided certain additional information regarding the
preservation instruction (see Ex. 2), but he has not provided it in a sworn affidavit as required by the Court’s
Order. (See Dkt. No. 58).

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of evidence,’ Rule 37(b) affords a court ‘broad discretion in fashioning an appropriate sanction.’”
Chevron Corp. v. Donziger, 296 F.R.D. 168, 208 (S.D.N.Y. 2013) (imposing sanctions for failure
to comply with order on motion to compel) (quoting Residential Funding Corp. v. DeGeorge Fin.
Corp., 306 F.3d 99, 107 (2d Cir. 2002)). The Court also “must order the disobedient party, the
attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees.”
Fed. R. Civ. P. 37(b)(2)(C). In accordance with Rule 37,2 BDG respectfully requests an order
awarding BDG its costs, including attorneys’ fees, in having to make this second motion to compel
discovery previously ordered by the Court.
For the reasons above, therefore, BDG respectfully requests a discovery conference and
order compelling the plaintiff to produce a compliant affidavit and to appear for a continued
deposition. BDG also requests a short extension of fact discovery to allow for such production
and the deposition.
Sincerely,
/s/ Colleen Carey Gulliver
Colleen Carey Gulliver
cc:

All counsel of record (by ECF)

The request is denied without prejudice for failure to comply with the Court's Individual Rule 5(c),
directing parties to "confer in good faith with the opposing party, in person or by telephone, in an effort
to resolve the dispute." From the submissions, it appears that discussions between the parties were
ongoing at the time of filing, Exh. 2 at 1, and that the discussions occurred exclusively over email, Exh.
5 at 1. The parties are directed to file a joint status letter describing the parties' positions with regard to
any remaining dispute, and any extension of discovery, by January 13, 2022. Fact discovery is extended
to that date nunc pro tunc.
SO ORDERED.
Date: January 11, 2022
New York, New York

2

______________________
JOHN P. CRONAN
United States District Judge

Just today, plaintiff’s counsel asserted that BDG had failed to meet and confer properly on plaintiff’s
failure to comply with the Order on BDG’s motion to compel. (See Ex. 5). Yet, BDG has exchanged no
fewer than 23 emails with plaintiff’s counsel since December 27, 2021 requesting that plaintiff’s counsel
correct various failures to comply with the Court’s Order. Due to today’s fact discovery deadline, BDG
must move to further compel compliance with the Order, which BDG repeatedly explained to plaintiff’s
counsel would be necessary.