eDiscovery Daily Blog

Plaintiffs’ Failure to “Hurry” Leads to Denial of Motion to Compel: eDiscovery Case Law

Sorry, I couldn’t resist… ;o)

In Hurry Family Revocable Trust, et al. v. Frankel, No. 8:18-cv-2869-T-33CPT (M.D. Fla. Jan. 14, 2020), the Florida District Court judge denied the Plaintiffs’ Motion to Compel Production of Documents and Request for Sanctions, ruling the motion to be untimely, given that the extended discovery deadline had passed, and also rejected the plaintiffs’ argument that the defendant had willfully avoided producing certain emails.

Case Background

In this dispute involving a former employee of the plaintiffs and claims that he used their confidential information and trade secrets, the Court entered a Case Management and Scheduling Order (CMSO) in January 2019 establishing various deadlines, including a discovery deadline of July 26, 2019, and a trial date of February 3, 2020.  The CMSO warned the parties that “[t]he Court may deny as untimely all motions to compel filed after the discovery deadline.”  In May 2019, the plaintiffs filed a motion to modify the CMSO and the Court extended the discovery deadline to August 9, 2019, but also cautioned the parties, however, that it would “be disinclined to extend…the [discovery] deadline[ ] further.”  Nonetheless, the plaintiffs sought to modify the CMSO two more times – the second time after the discovery deadline on August 12, 2019 – but the court denied both motions, stating after the second one:

“The Court has already extended the discovery deadline in this case to August 9, 2019, at the Plaintiffs’ request. The Court has also repeatedly warned Plaintiffs that it would be disinclined to extend deadlines further. Yet Plaintiffs filed this third motion to modify the Case Management and Scheduling Order on August 12, 2019, after the extended discovery deadline had passed…..As for the documents that Plaintiffs claim Defendant has failed to produce, Plaintiffs were aware of those missing documents since August 6 and/or 7, 2019, and failed to file a motion to compel prior to the discovery deadline. As the Court advised in its Case Management and Scheduling Order, ‘[f]ailure to complete discovery within the time established by this Order shall not constitute cause for a continuance.’”

Roughly four months after the Court’s August 20 Order, the plaintiffs filed an instant motion to compel after the plaintiffs received five emails from third parties that were not produced by the plaintiff.  The plaintiff requested an order directing that: (1) the defendant’s “email accounts, cloud storage, and digital devices” be subjected to a “third party search” for responsive documents at his expense; (2) “[Frankel] be precluded from testifying or offering evidence on issues related to categories of discovery withheld by [Frankel];” and (3) “adverse inferences be made against [Frankel] related to categories of discovery withheld by [Frankel].”

Judge’s Ruling

Noting that “Hurry waited to submit the instant motion until four months after the discovery deadline and only two months before trial”, the court stated: “Hurry’s proffered excuse for this extended delay is unpersuasive. When pressed on the matter at the hearing, Hurry conceded that it knew about the Koonce and FINRA emails by no later than early August 2019. It also admitted that it elected to place the instant motion on the ‘backburner’ while it dealt with its motion for summary judgment. Hurry’s evident lack of diligence in pursuing its motion to compel alone is fatal to that request.”

Continuing, the court stated: “Even were that not the case, Hurry has not shown that it is entitled to the relief it seeks. The central premise of its motion is that Frankel willfully avoided producing the Koonce and FINRA emails. In both his response and at the hearing, however, Frankel persuasively argued that his failure to produce these emails was not purposeful, but stemmed from the fact that the emails were not detected during the search Frankel conducted in connection with Hurry’s production requests. Frankel also noted he informed Hurry of the parameters of that search in advance, and Hurry did not object to those parameters.”

So, what do you think?  Should identification of new emails from third parties justify re-opening discovery?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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