Where a plaintiff and a third-party defendant have moved to
preclude the defendants from using late-produced documents in support of or
opposition to any motion or at trial, the motion should be denied unless the
plaintiff and third-party defendant can identify in writing any deposition
witnesses and topics for examination that they believe are reasonably necessary
to address any potential prejudice arising out of the late production of
documents by the defendants.
“The present dispute concerns a late production of documents
by defendants Plain Avenue Storage, LLC and Malden Storage, LLC to plaintiff
BRT Management LLC and third-party defendant Brian Wallace. BRT and Wallace
have moved under Fed. R. Civ. P. 37 to preclude Plain and Malden from using the
late-produced documents in support or opposition to any motion or at trial. …
“Fact discovery closed on October 10, 2018. On October 17,
seven days after the close of discovery and 71 days after receiving the request
for production, Plain and Malden served additional responsive documents on BRT.
The production consisted of a CD containing 638 pages of documents. The CD and
accompanying cover letter did not contain the necessary attorney certification
under Fed. R. Civ. P. 26(g), or any other language identifying the supplemental
production. Instead, the cover letter stated only that a ‘CD containing Bates
Stamped documents within certain ranges was enclosed.’
“Counsel for BRT and Wallace contend that they mistook the CD
as unrelated to their August 7 requests for production. According to counsel,
it was not until January 29, 2019, during an e-mail exchange with Plain and
Malden’s counsel, that they realized that they had, in fact, received the
supplemental production. …
“The circumstances here are certainly troubling. The
documents were delivered to BRT and Wallace 41 days late, and indeed seven days
after the close of fact discovery. The supplemental production obviously should
have included the required certification, and should have clearly identified
what the documents were and the discovery requests to which they were
responsive. Plain and Malden have not offered a reasonable justification for
the late production. The documents appear to be central to their damages
claims. And production of documents after the fact-discovery deadline has an
obvious impact on the discovery schedule; at a minimum, it precluded the
possibility of taking any depositions as to the subject of those documents
without relief from the court.
“Nonetheless, counsel for BRT and Wallace are hardly free
from blame. …
“In short, counsel for BRT and Wallace have not acted
diligently, which carries substantial weight in the sanctions analysis. Had
they reviewed the documents when they received them, any prejudice caused by
the failure of Plain and Malden to comply with the rules would have been
greatly reduced. Furthermore, the
documents appear to be central to the claims of Plain and Malden, and their
preclusion would likely mean that BRT and Wallace would prevail in the
litigation. For those reasons, the Court is reluctant to preclude Plain and
Malden entirely from relying on the late-produced documents.
“That does not mean, however, that no sanction is required.
Had the issue been timely raised, and had a reasonable request been made, the
Court would likely have permitted discovery to be reopened as necessary in
order to give BRT and Wallace an opportunity to examine witnesses about the
documents. It is unclear whether that is appropriate here, in light of the long
delay of BRT and Wallace in asserting their rights, and in the absence of any
specific information concerning what witnesses would need to be deposed, or on
what topics. In any event, if BRT and Wallace wish to reopen discovery, they
should identify those witnesses, and the relevant topics, so that the Court can
fashion appropriate relief. Furthermore, BRT and Wallace is entitled to an
award of reasonable attorney’s fees and expenses arising out of the litigation
of this issue, and therefore the Court will give them a period of 14 days in
which to seek such a sanction. Otherwise, however, the motion to preclude will
be denied. …
“For the foregoing reasons, the motion in limine of
BRT Management, LLC and Brian Wallace to preclude Plain Avenue Storage, LLC and
Malden Storage, LLC from using certain late-produced documents in support of
any motion or opposition or at trial is denied in part and granted in part. Within
14 days of the date of this order (that is, by September 3, 2019), counsel for
BRT Management, LLC and Brian Wallace shall:
“(1) if they seek to reopen discovery, file an appropriate
motion identifying in writing any deposition witnesses and topics for
examination that they believe are reasonably necessary to address any potential
prejudice arising out of the late production of documents by Plain Avenue
Storage, LLC and Malden Storage, LLC, and
“(2) if they seek to recover reasonable attorneys’ fees and
expenses arising out of the late production, file an appropriate motion with
supporting affidavit(s).”
BRT Management LLC v. Malden Storage, LLC, et al. v.
Wallace (Lawyers Weekly No. 02-385-19) (8 pages) (Saylor, J.) (Civil Action No.
17-10005-FDS) (Aug. 20, 2019).
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