PATROSKI v. RIDGE et al
Filing
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MEMORANDUM OPINION AND ORDER denying 30 Plaintiff's Motion for Order Compelling Timely Mailing of Documents; and denying without prejudice 35 Defendants' Motion for Appointment of Special Discovery Master. Signed by Judge Terrence F. McVerry on 11/17/2011. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SUSAN PATROSKI,
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)
)
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)
)
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Plaintiff,
v.
PRESSLEY RIDGE and B. SCOTT FINNELL,
Defendants.
2: 11-cv-1065
MEMORANDUM OPINION AND ORDER OF COURT
Pending before the Court are the following Motions:
• Plaintiff’s MOTION FOR ORDER COMPELLING TIMELY MAILING OF
DOCUMENTS (Document No. 30), the DECLARATION OF VIOLET ELIZABETH
GRAYSON (Document No. 31), PRESSLEY RIDGE’S RESPONSE IN OPPOSITION
(Document No. 34), DEFENDANT FINNELL’S RESPONSE IN OPPOSITION (Document No.
38), and the REPLY DECLARATION OF VIOLET ELIZABETH GRAYSON IN SUPPORT
OF MOTION TO COMPEL TIMELY MAILING OF DOCUMENTS (Document No. 37); and
• Defendants’ MOTION FOR APPOINTMENT OF SPECIAL DISCOVERY MASTER
(Document No. 35) and the DECLARATION OF VIOLET ELIZABETH GRAYSON IN
OPPOSITION TO MOTION TO APPOINT SPECIAL MASTER (Document No. 36).
Both Motions have been fully briefed and are ready for disposition. The Court will
address same seriatim.
A.
Motion for Order Compelling Timely Mailing of Documents
Distilled to its essence, the current dispute is two fold: (i) the first issue involves the
place and manner of production of Defendants’ documents identified pursuant to their Rule
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26(a)(1) disclosures and those documents identified in response to Plaintiff’s discovery requests
and (ii) the second issue involves the date for completion of the production. Oddly, the Court
notes that this motion was filed prior to the deadline Defendants’ written responses to the
document requests were due.
Defendant Pressley Ridge has identified 2000 documents pursuant to its Rule 26(a)(1)
disclosure, and an 400 additional pages in response to the document production. Defendant
represents that these documents are available for review at defense counsel’s office in Pittsburgh.
Defendant Pressley Ridge also represents that because the parties have not agreed upon
search terms for electronic searching, Defendants have not been able to commence electronicsearching and do not know how much time will be needed to conduct those electronic searches.
Defendant Finnell represents that many of the documents requested of him which may be
responsive to Plaintiff’s requests are in the possession of Pressley Ridge and will be produced by
counsel for Pressley Ridge. Additionally, Finnell has agreed to make available for review by
Plaintiff’s counsel certain responsive books in defense counsel’s office in Pittsburgh at the time
of the November 18 case management conference, and has advised that if additional responsive
books are located, those too will be made available for review. Also, like Pressley Ridge,
Finnell contends that the methodology for ESI searching and production has not been agreed
upon by all counsel, and after such methodology is determined, Defendants will need time to
conduct the ESI searches, review the documents resulting from the searches, and produce
discoverable documents.
Defense counsel have also explained to Plaintiff’s counsel that additional responsive
documents might be “unearthed as discovery unfolds” and that, in such case, the document
production would be supplemented as required by Federal Rule of Civil Procedure 26(e).
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Plaintiff contends that because she previously duplicated, at her own expense, and then
mailed her responsive documents to defense counsel, defense counsel should reciprocate and
duplicate and mail to her their responsive documents. At first blush, this seems reasonable. But,
as defense counsel point out, neither defense counsel ever asked Plaintiff to make a copy of any
document at her own expense. Plaintiff’s counsel elected to make copies of the documents and
forwarded those to defense counsel. Defense counsel have informed counsel for Plaintiff that
their documents are available for review in Pittsburgh, or “if she would prefer to have copies
made and shipped to her, she can either: (i) notify defense counsel of a copying service in
Pittsburgh for Defendants to send the documents for copying at Plaintiff’s expense; or (ii) send
defense counsel a check to cover the copy of copying if she would prefer that [Defendants]
undertake the copying for her.”
Ordinarily, where records of a business are to be examined for discovery, they should not
be required to be delivered to the adversary, but to be made available for inspection at the
owner’s place of business, during reasonable business hours, unless the parties mutually agree to
some other place and time. Niagara Duplicator Co. v. Shakleford, 160 F.2d 25, 26-27 (D.C. Cir.
1947).
After careful consideration, the Court finds that Defendants attempts to accommodate
Plaintiff’s request for production of documents is more than reasonable. Accordingly,
Defendants may produce the documents at their respective Pittsburgh attorney’s offices and
permit Plaintiff’s counsel to inspect or copy them, or, at Plaintiff’s election, Plaintiff may
procure copies of such documents at her own cost and expense.
Plaintiff also argues that she cannot produce Plaintiff for her deposition, nor can she
proceed with depositions of Defendants’ witnesses, until the completion of discovery.
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According to Plaintiff’s counsel, she “would be forced to defend Plaintiff’s deposition
blindfolded and choose between deposing adverse witnesses without complete documents or
substantially delaying these depositions.” The Court finds that there is merit to this argument.
Accordingly, it is in the best interest of all parties, to amicably resolve the outstanding issue of
the methodology for ESI searching as expeditiously as possible, so that production can be
completed and that the deposition of Plaintiff and Defendants’ witnesses can commence soon
thereafter.
The Court also finds that there is merit to Defendants’ argument that additional
responsive documents might be “unearthed as discovery unfolds.” The Court is confident that
all counsel are well aware of their continuing obligations to timely supplement document
production and that all counsel take that obligation seriously. At this early stage of the litigation,
it simply is not known to Defendants what additional documents might be unearthed as discovery
unfolds.
For all these reasons, the Motion to Compel Timely Mailing of Documents will be
denied.
B.
Motion for Appointment of Special Discovery Master
Defendants request that the Court appoint a Special Discovery Master in this case
because as Defendants describe it “there are already disputes in this case about the most basic
issues as to which counsel typically cooperate in litigation.” Plaintiff opposes the appointment
of a Special Discovery Master because (1) she cannot afford to pay a special master and (2) she
argues that a Special Discovery Master is not necessary.
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Before getting to the merits of the motion, the Court is compelled to comment on what
appears to be a situation which could easily, if not already, go awry. This lawsuit was
commenced less than three months ago when Plaintiff filed her Complaint on August 16, 2011.
To date, including the instant motions, the parties have filed three discovery motions and,
according to Defendants, Plaintiff’s counsel has “threatened on at least 4 occasions to file
motions to compel regarding her discovery demands.”
As Plaintiff aptly notes, “[t]his chambers has a reputation for ruling promptly on motions,
and moving cases forward.” Decl at ¶ 3(b) (Document No. 36). However, the parties are
forewarned that if the Court continues to be faced with discovery motions like those in the
instant dispute, this case will not be able to quickly move forward, despite the best efforts of the
Court.
The Court is concerned that counsel or the parties, on one or both sides of the suit, may
be taking positions that do not comply with either the letter or spirit of the Federal Rules of Civil
Procedure or the Local Rules of Court regarding discovery. When the Court is confronted with
allegations of continuing discourtesy and the inability of the parties to proceed in an orderly
fashion in conducting discovery, the Court must take action to assure that the case is litigated in a
speedy, efficient, and economic fashion. Fed.R.Civ.P. 1. However, this Court does not referee
discovery bouts between consenting adults. The Court will, though, take full advantage of
sanctions available under the rules of procedure and this Court’s inherent authority to prevent
discovery abuses. If any counsel or party makes excessive demands or insufficient responses
after this cautionary order by the Court, an order may be entered providing for sanctions and/or
more stringent controls over discovery.
The Court notes that at least one court has refused to appoint a special master when
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financial burdens would be imposed on the plaintiff. Fraver v. Studebaker, 11 F.R.D. 94 (W.D.
Pa. 1950). Counsel for Plaintiff has represented that the appointment of a Special Discovery
Master would pose a financial hardship on her client. Therefore, although tempted, the Court
will not at this time appoint a Special Discovery Master. However, the parties are again
cautioned that this Court does not referee discovery bouts between consenting adults. If
discovery disputes continue, the Court may have no option but to appoint a Special Discovery
Master.
Accordingly, the parties and their attorneys are hereby placed on notice that this Court
will not hesitate to exercise its authority under the Federal Rules of Civil Procedure, 28 U.S.C.
§ 1927, and the inherent power of the federal district courts to correct abuses of the judicial
process, Chambers v. Nasco, Inc., 501 U.S. 32 (1992), to impose appropriate sanctions upon
attorneys and litigants who violate the letter and the spirit of our rules of orderly procedure and
professional conduct. Where the record discloses good grounds for sanctions and the violator
has been forewarned, this Court may impose sanctions sua sponte and without further notice.
Turning to the instant motion, although Defendants seem to have a large number of
documents (Pressley Ridge has represented that it alone has 2,400 documents, not including
ESI), and the parties were in disagreement over the place and manner of production, the record
does not reflect that the discovery process is so complicated or complex at this time to require
the aid of a Special Discovery Master. Accordingly, the Motion for Appointment of Special
Discovery Master will be DENIED without prejudice.
An appropriate Order follows.
McVerry, J.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SUSAN PATROSKI,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
PRESSLEY RIDGE and B. SCOTT FINNELL,
Defendants.
2: 11-cv-1065
ORDER OF COURT
AND NOW, this 17th day of November, 2011, in accordance with the foregoing
Memorandum Opinion, is it hereby ORDERED as follows:
1. The Motion to Compel Timely Mailing of Documents is DENIED.
2. The Motion for Appointment of Special Discovery Master is DENIED without
prejudice.
BY THE COURT:
s/ Terrence F. McVerry
United States District Court Judge
cc:
Violet E. Grayson, Esquire
Email: vegrayson@gmail.com
Martha Hartle Munsch, Esquire
Reed Smith
Email: mmunsch@reedsmith.com
Kimberly A. Craver, Esquire
Reed Smith, LLP
Email: kcraver@reedsmith.com
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Kathy K. Condo, Esquire
Babst Calland Clements & Zomnir
Email: kcondo@bccz.com
Mark K. Dausch, Esquire
Babst, Calland, Clements and Zomnir, P.C.
Email: mdausch@bccz.com
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