Case 1:04-cv-00343-JJF Document 625-4 Filed O4/O9/2007 Page 2 of 4
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193 F.R.D. 664 Page 1
193 F.R.D. 664
(Cite as: 193 F.R.D. 664)
F, A party cannot ignore available discovery remedies
United States Disttiet Ct-mit, for months and then, on the eve of trial, move the
D_ Cdietedd court for an order compelling production.
Terrence A. BUTTLER, Plaintiffs,
v. Q] Federal Civil Procedure 1636.1
Stuart BENSON; Kelly’s Franchising of America, l70Akl636.l Most Cited Cases
Inc.; Keri Benson; Gladys Plaintiffs motion to compel and associated request
Benson; Gladys Benson as Trustee ofthe TRS Trust; for sanctions would be denied, where plaintiffs
and Keri Benson as trustee unexplained delay in seeking court assistance to
of the SRT Trust, Defendants. obtain the documents at issue, coupled with his
No. CIV.A. 97-B-609. request for sanctions in the form of an order
precluding defendants from opposing his damage
June 16, 2000. claims and from offering evidence at trial, raised the
inference that plaintiff held alleged discovery
Plaintiff tiled motion to compel production of violation in abeyance for strategic purpose.
documents, motion for sanctions, and certificate of
compliance with local rule, and amended motion for mFederg| Civi| Procedure ]637
leave to endorse expert witness and certificate of ]7()Ak1637 MogtCited Cages
compliance. The DiStfiCt COUIT, BQLQLQ, Unit€d Plaintiffs request for reimbursement of costs
States Magistrate Judge, held that: (1) plaintiffs associated with sorting through documents produced
in0ii0n to sanctions would be denied, Where plaintiffs the records kept in the usual course of business were
unexplained delay in seeking court assistance to not produced, or that the plaintiff actually expended
obtain the d0CuIn€I1tS at issue, COL1pl€d with his any money to have the documents sorted. Fed.Rules
request for sanctions in the form of an order Civ_Pro(;_Ru]e 34ib) 28 U_$_C_A_
precluding defendants from opposing his damage
claims and from offering evidence at trial, raised iiipedemicivii Procedure €,.“.:,o1636_1
inference that plaintiff held alleged discovery i7tiAk 1636v] Mdst Cited Cases
vi¤1¤ii<>¤ in nbeynnee ini siidiegie Pnipnsei (2) Plaintiff did not show good cause to endorse
Pininiiiiis ieduesi ini ieinibnisemeni di eesis accountant as expert witness on damages after
nssneinied with sniiing ininngn ddeninenis Piedueed deadline for such designation had passed, based on
by defendants would denied, absent evidence that the defendants idte production df tiiisiieiai ieedidst
records which were kept in the usual eeuise of where plaintiff had discovery remedies available to
business Weie net Pindueeda ei digi Pininiiii neinniiy compel defendants to produce the records earlier, but
expended any innney in have die dnennienis seiied9 failed to resort to those remedies. Fed.Rules
and (3) plaintiff did not show good cause to endorse CiV_pit,e_Riiie dtbi 28 U_S_C_A_
21CCOL11’1tZ-mt EIS €Xp€t‘t witness OH damages after *665 Kirk B_ Hoiieiimtm Kirk B_ Hoiieymtms P_C_,
deadline for such designation had passed. Deiiveti CO, tot piaiiitiit
Meiinns denied- Harold R. Bruno, Ill, Smith McCullough, P.C.,
Denver, CO, for Defendant.
West Headnotes
ORDER
il] Federal Civil Procedure €·`··:’1278
170Akl 278 Most Cited Cases BOLAND, United States Magistrate Judge.
Ordinarily, if a failure to make discovery comes to
light, the I'€Il‘1€dy is to Ol'd€1' pI'OdL1CtlOI1 and to take This matter is before me on Plaintiffs Motion to
any Oinei steps necessniy to Cure any Pi€ln
QiFederal Civil Procedure °e>`:°1278 Pursuant to D.C.COLO.LR 7.1 (the "Motion to
l70Akl278 Most Cited Cases Compel"), Bled April 21, 2000, and Plaintiff's
© 2007 Thomson/W est. No Claim to Orig. U.S. Govt. Works.
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193 F.R.D. 664 Page 2
193 F.R.D. 664
(Cite as: 193 F.R.D. 664)
Amended Motion for Leave to Endorse Expert 9, 1999, and again there is no record that any
Witness and Certificate of Compliance Pursuant discovery issues were raised. Finally, with the trial
to D.C.COLO.LR 7.1 (the "Motion to Endorse set to begin on July 6, 2000, the plaintiff in late April
Expert Witness"), filed April 21, 2000. For the filed the instant Motion to Compel. PNZ! There is
following reasons, the motions are DENIED. no explanation for why the plaintiff did not seek
further assistance of the court to obtain production of
1. PLAlNTIFF'S MOTION TO COMPEL these documents during discovery or why he waited
until one and one half years after Judge Abram's
The plaintiff served his initial requests for Order to file this Motion to Compel.
production of documents on defendants Stanley
Benson, Gladys Benson, and Gladys Benson as LN; Defendants' Opposition to Motion to
Trustee of the TRS Trust on May 21, 1998. On Compel Production of Documents and
September 8, 1998, the plaintiff filed his first motion Opposition to Motion for Sanctions was
to compel production of certain documents. On filed May 9, 2000, and defendants
October 9, 1998, Magistrate Judge Donald E. Abram Supplement to Opposition to Motion to
issued an Order directing defendants to produce Compel Production of Documents was filed
relevant financial records on or before October 20, May 30, 2000.
1998.
Q1 A party cannot ignore available discovery
The plaintiff asserts that "in late 1998" defendants remedies for months and then, on the eve of trial,
made an incomplete production of the records move the court for an order compelling production.
ordered by Judge Abram. The plaintiff then The DesR0siers case is illustrative. There, as in this
provided defendants with a written list of the case: .
documents which defendants failed to produce. [T]he plaintiff knew, well in advance of trial, that
More than one year passed. Then, on April 4, 2000, [requested but unproduced documents] existed.
defendants made a second incomplete production. Yet, he failed to bring the matter of non—production
The plaintiff now seeks (1) an order compelling to the court's attention at the pretrial hearing or in
production of the remaining documents, (2) an order some other timely fashion. In similar
prohibiting defendants from opposing his damage circumstances, courts have often deemed discovery
claims and from offering evidence at trial, FNl and violations waived.
(3) an order requiring defendants to reimburse the 949 F.2cl at 22 n. 8. See also JOM, Inc. v. Adell
plaintiff for monies expended sorting through Pla.rtic.r. Inc., 193 F.3d 47,51 (lst Cir.1999)(noting a
documents produced by defendants. party’s obligation to move to compel production
"well in advance of trial").
@ Pursuant to Orders dated June 30,
1997, and February 12, 1998, default [gl The plaintiffs unexplained delay in seeking court
entered against all defendants. Thus, the assistance to obtain the documents now at issue,
only issue for trial is damages. coupled with his request for sanctions in the form of
an order precluding defendants from opposing his
ll] Ordinarily, if a failure to make discovery comes damage claims and from offering evidence at trial,
to light, the remedy is to order production and to take raises the inference that the plaintiff is not as
any other steps necessary *666 to cure any prejudice. concerned with obtaining the documents as he is with
DesR0siers v. Moran. 949 F.2d 15, 22 ( lst Cir.199l). "holdling] in abeyance a putative discovery
In this case, however, the plaintiff has failed to seek violation" for the strategic purpose of using it late in
judicial relief for an unreasonably long period of the proceedings as a basis to prevent defendants from
time. defending the claims against them. See id. at 52.
For these reasons, the plaintiffs Motion to Compel
Specifically, Judge Abram required defendants to and associated request for sanctions are denied.
produce the financial records on or before October
20, 1998. After that order, and more than a year ago, lg] Plaintiffs request for reimbursement of costs
the plaintiff identified documents which he believed associated with sorting through the documents
should be produced but had not been. Discovery produced by defendants also is denied. There is no
closed on March 26, 1999, but the plaintiff did not evidence that these records were not produced as they
raise any issue concerning the documents it now were kept in the usual course of business, see
seeks. Apretrial conference was held on December Fed.R.Civ.P. 34gb), or that the plaintiff actually
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193 F.R.D. 664
(Cite as: 193 F.R.D. 664)
expended any money to have the documents sorted.
IT IS FURTHER ORDERED that defendants
2. PLAINTIFF'S MOTION TO ENDORSE request for attomeys' fees and costs is DENIED.
EXPERT WITNESS
END OF DOCUMENT
l§_l The plaintiff seeks to endorse Gregory Taylor,
Certified Public Accountant, as an expert witness on
the damages he claims to have suffered. The plaintiff
bases this late request on defendants' failure to
produce documents until April 4, 2000. The plaintiff
also asserts that a CPA would be of great assistance
to the Court in tracing the complex financial
transactions undertaken by defendants.
A Scheduling Order "shall not be modified except
upon a showing of good cause." Fed.R.Civ.P.
l6ga)g6). In addition,
[w]hen by order of court an act is required or
allowed to be done at or within a specified time,
the court for cause shown may at any time in its
discretion upon motion made after the expiration
of the specpfed period permit the act to be done
where the failure to act was the result of excusable
neglect ....
Fed.R.Civ.P. 6g b )(emphasis added).
Here, although a CPA might be helpful at trial, the
plaintiffs request comes too late. Pursuant to Judge
Abram's Order dated *667 February 9, 1999, the
plaintiff received an extension of time until March 1,
1999, to designate his expert witnesses. At that time,
Judge Abram admonished that "[nlo further
extensions of time [would] be granted."
Further, to the extent plaintiffs Motion to Endorse
Expert Witness is based upon defendants' late
production of financial records, as discussed supra,
plaintiff had discovery remedies available to compel
defendants to produce the records earlier than April
4, 2000. For these reasons, I find that the plaintiff
has not shown good cause, and certainly not
excusable neglect, to support his request to endorse
an expert witness at this late date. Accordingly,
IT IS ORDERED that Plaintiffs Motion to Compel
Production of Documents, Motion for Sanctions,
and Certificate of Compliance Pursuant to
D.C.COLO.LR 7.1, filed April 21, 2000, is
DENIED.
IT IS FURTHER ORDERED that Plaintiffs
Amended Motion for Leave to Endorse Expert
Witness and Certificate of Compliance Pursuant
to D.C.COLO.LR 7.1, filed April 21, 2000, is
DENIED.
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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