Opinion
No. 00-2559-D/A, No. 01-2033-D/A
May 22, 2003
ORDER ON PENDING DISCOVERY MOTIONS
Before the court are the following motions:
1. The motion by defendants Equity Title Escrow Company ("Equity") and Steven Winkel ("Winkel"), filed on April 11, 2003 (#452 in case number 00-2559, and #373 in case number 01-2033), for an order limiting discovery under Fed.R.Civ.P. 26(b)(2), and an amended motion for a protective order;
2. The motion by plaintiffs, filed on April 29, 2003 (#455 in case number 00-2559, and #376 in case number 01-2033), to strike the above-mentioned motion by defendants Equity and Winkel, and for sanctions; and
3. The motion by defendants Equity and Winkel, filed on May 13, 2003 (#465 in case number 00-2559, and #382 in case number 01-2033), to strike plaintiffs' motion to strike and for sanctions.
For the reasons hereinafter given, the motion by defendants Equity and Winkel for an order limiting discovery and for an amended protective order is DENIED; the motion by plaintiffs to strike the above-mentioned motion by defendants Equity and Winkel and for sanctions is GRANTED; and the motion by defendants Equity and Winkel to strike plaintiffs' motion to strike and for sanctions is DENIED.
The court has carefully examined the motion by defendants Equity and Winkel, filed on April 11, 2003, for a limitation of discovery, and an amended motion for a protective order. This court has, on March 31, 2003, entered an order on plaintiffs' previous motion to compel, and on the motion by defendants Equity and Winkel (related to plaintiffs' motion to compel) for a protective order. Defendants Equity and Winkel, on April 11, 2003, filed their motion (#450 in case number 00-2559, and #371 in cause number 01-2033) for reconsideration (by the United States District Judge) of my March 31, 2003, order. The above-mentioned motion for a limitation of discovery and the amended motion for a protective order was filed on the same date. It is said, in defendants' motion for a limitation of discovery, etc., that it was filed "to incorporate recently obtained evidence supporting that motion. " This "recently obtained evidence" is the affidavit of Cary Califf (the Rule 30(b)(6) representative of defendant Equity), obtained on April 9, 2003.
Defendants again make the claim that the discovery sought is "overbroad and unduly burdensome". Defendants had an opportunity to show specifically how this discovery would be unduly burdensome when they responded to plaintiffs' discovery requests, but did not do so. They had an opportunity to show specifically how this discovery would be unduly burdensome when they responded to plaintiffs' motion to compel, and when they presented their motion for a protective order. Cary Califf is apparently a part owner of defendant Equity, along with defendant Winkel, and presumably knew at both these early times all that is now contained in his affidavit, but chose not to present it at either of these times. Instead, defendants chose to hold this back until an unfavorable ruling was had. The court suspects that, if defendants obtain an unfavorable ruling this time, they will find someone else to execute an affidavit, and call this "recently obtained evidence". However, defendants are not entitled to unlimited bites at the apple.
Defendants' motion for limitation of discovery, and to file an amended motion for a protective order, is DENIED.
Plaintiff's have asserted, in their Motion to Strike, and for Sanctions, filed on April 29, 2003, that sanctions should be imposed against defendants Equity and Winkel for filing this "frivolous and improper" motion. Plaintiff's are justified in seeking sanctions. Defendants have every right to appeal my decision, and this appeal is pending. They do not have the right to file another motion, presenting the same arguments, with proof they should have presented previously, requiring plaintiffs to respond thereto.
Accordingly, plaintiffs' motion for sanctions is GRANTED. Plaintiff's are given FIFTEEN (15) DAYS from the date of docketing of this order in which to submit proofs (in the form of receipts, affidavits, etc.) of their expenses, including attorneys' fees, incurred in defending defendants' motion for limitation of discovery, and for leave to file an amended motion for a protective order. Defendants are given TEN (10) DAYS from receipt of the foregoing proofs of plaintiffs in which to respond (either by asserting that no expenses should be awarded, or that the amounts claimed are excessive). Unless one of the parties requests oral argument or an evidentiary hearing, this matter will be disposed of on the pleadings.
In light of the foregoing, defendants' motion to strike plaintiffs' motion to strike and for sanctions is DENIED.
IT IS SO ORDERED.