Martinez v. McGraw et al.

Filing 241

MEMORANDUM AND ORDER: Defts' 170 Motion for Sanctions is DENIED without prejudice to defts right to move to exclude from evidence at trial any responsive document not timely produced by pltf that is the subject of this order. Signed by Magistrate Judge John S. Bryant on 5/16/12. (rd)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JAMES MARTINEZ,
Plaintiff,
v.
SAMUEL TIMOTHY McGRAW, et al.,
Defendants.

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NO. 3:08-0738
Judge Campbell/Bryant
Jury Demand

MEMORANDUM AND ORDER
Defendants have filed their motion for sanctions (Docket
Entry No. 170) based upon plaintiff’s alleged failure to produce
certain documents that plaintiff brought with him to his discovery
deposition on March 19, 2009.

Plaintiff has filed a response in

opposition (Docket Entry No. 171).
For the reasons stated in this memorandum and order, the
undersigned

Magistrate

Judge

denies

defendants’

motion

for

sanctions without prejudice to defendants’ right to move to exclude
from evidence at trial any responsive document not timely produced
by plaintiff that is the subject of this order.
Background
Plaintiff initially filed this case on March 8, 2007,
alleging that defendants had infringed his copyright in a song
written by plaintiff and entitled “Anytime, anywhere, Amanda.”
Plaintiff alleges that the song entitled “Everywhere” recorded by
defendant McGraw was copied from plaintiff’s earlier copyrighted
work.

On March 19, 2009, counsel for defendants took the
discovery deposition of plaintiff Martinez.

Apparently, at that

deposition plaintiff Martinez arrived with a rolling suitcase
containing certain documents. During the course of the deposition,
some of plaintiff’s documents were marked and made part of the
deposition record as Exhibit No. 23 (Docket Entry No. 171-1 at 2930).

It further appears from the record that other documents

brought by plaintiff to his deposition consisted of notes that
plaintiff

had

written

to

his

lawyer

(Id.

at

30-31).

These

documents, and perhaps others, were not produced to defense counsel
at the deposition.
Following remand of this case to this Court from the
Sixth Circuit Court of Appeals, the undersigned Magistrate Judge
conducted a telephone case management conference with the parties
on September 28, 2011.

At that time, plaintiff’s earlier counsel

had withdrawn, and plaintiff was unrepresented. He participated in
the telephone case management conference pro se. During that
telephone conference, the subject of additional documents brought
to plaintiff’s deposition but not produced there was discussed.
Counsel for defendants requested that these documents be turned
over, and plaintiff Martinez agreed to produce on or before
November 12, 2011, any remaining documents in his possession
responsive to defendants’ prior discovery requests. On October 13,
2011, the undersigned Magistrate Judge entered a scheduling order
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in this case which provided, among other things, as follows:
“Plaintiff agrees to produce the remaining responsive documents,
that are in his possession, to Defendants’ prior discovery requests
by November 12, 2011.”
Shortly after entry of this scheduling order, plaintiff
employed Mr. Ramey as his new lawyer (Docket Entry No. 163). After
certain discussions between Mr. Ramey and defendants’ lawyers
concerning documents brought by plaintiff to his deposition but not
produced, defendants filed their current motion for sanctions based
upon plaintiff’s failure to produce the subject documents.
Analysis
In his response (Docket Entry No. 171), plaintiff makes
essentially two arguments.

First, he argues that failure to

produce documents by the deadline contained in the Court’s October
13, 2011, scheduling order cannot be the basis for discovery
sanctions pursuant to Rule 37(b)(2) of the Federal Rules of Civil
Procedure.

Second, plaintiff, through his counsel, Mr. Ramey,

states that plaintiff has, in fact, complied with the Court’s
scheduling

order

and

has

already

produced

privileged documents taken to the deposition.”
171 at 7).

“all

of

the

non-

(Docket Entry No.

Plaintiff further states in his response: “Plaintiff

has produced all responsive documents that were at the Martinez
deposition, exactly as requested by defendants’ counsel.”

(Id.)

Given plaintiff’s representation in this record that he
has produced all responsive, nonprivileged documents that were in
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his possession at his deposition, the undersigned Magistrate Judge
finds

that

defendants’

motion

for

sanctions

must

be

denied.

Defendants also seek as alternative relief an order excluding from
evidence at trial any responsive document that plaintiff has failed
to produce in discovery.
sanctions

provided

in

While such a remedy is among the

Rule

37(b)(2)(A)(ii),

the

undersigned

Magistrate Judge is unwilling at this stage of the proceedings to
enter an order excluding evidence at trial.

The undersigned

considers rulings on admissibility of evidence to be the proper
prerogative of the trial judge.
For the reasons stated in this memorandum and order,
defendants’ motion for sanctions (Docket Entry No. 170) is DENIED
without prejudice to defendants’ right to file a later motion to
prohibit plaintiff from introducing into evidence at trial any
responsive document that he has not produced in discovery.
It is so ORDERED.
s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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