Opinion
Case No. 2:04 cv 122.
January 13, 2006
OPINION AND ORDER
This matter is before the court on the Motion to Compel filed by the defendant, Universal Steel America, Inc., on January 11, 2006, and the Motion to Compel Production of Documents filed by the plaintiff, Riccardo R. Foggia, Jr., on December 19, 2005. For the reasons set forth below, the motions are DENIED.
This breach of contract claim was filed on March 24, 2004. The first scheduling conference was held on July 2, 2004. Deadlines were set for discovery and dispositive motions, and this matter was set for trial on October 24, 2005. On November 30, 2004, the plaintiff filed a motion to extend the deadlines, and that motion was granted. However, the extended deadlines did not affect the trial date.
On September 16, 2005, the defendant filed a motion to continue the trial date. The plaintiff originally objected to a continuance, but a joint motion to continue the trial was filed on October 5, 2005. This matter became fully consented on October 14, 2005.
A settlement conference was conducted on October 20, 2005. When the settlement conference was unsuccessful, this matter was scheduled as a primary setting for January 23, 2006. On November 3, 2005, a discovery deadline was set for January 6, 2006.
Consistent with the parties' conduct throughout this litigation, discovery related motions were filed in December 2005 and January 2006. In an Order dated February 28, 2005, the parties were ordered to conduct a meaningful discovery conference as required by Local Rule 37.1 and file a joint status report concerning any remaining discovery disputes. Unwilling to change their litigation strategy, the parties failed to resolve the discovery disputes at the required conference.
In the pending motion, the defendant alleges that it served the plaintiff with a request for production on September 24, 2004. The plaintiff responded to that document request on October 26, 2004. The defendant now takes issue with those responses.
The defendant has failed to explain why it has waited almost 15 months to seek production of those documents. With the trial approximately 10 days away, the defendant has waived any right to seek a court order requiring production of those documents.
The pending motion also addresses additional documents requested on December 2, 2005. This request was made over one month after the failed settlement conference and with the 30 day period to respond extending through the Christmas and New Year holidays. The defendant now objects to the responses made by the plaintiff on January 4, 2006.
Under Local Rule 7.1(a), the plaintiff has 15 days to respond to the discovery motion filed on January 11. The defendant has an additional seven days to file a reply. Simple arithmetic indicates that this matter will not be fully briefed until after the scheduled trial date. Once again, the defendant has not explained why it delayed in filing the initial discovery requests or the motion challenging the plaintiff's responses. Therefore, the defendant has waived any right to seek a court order compelling discovery.
In an Order dated December 28, 2005, the plaintiff's motion to compel was taken under advisement. The parties were ordered to conduct a meaningful discovery conference within five business days and to file a joint report of that conference five business days later. The discovery conference was conducted on January 3, 2006, and the plaintiff filed a unilateral report which concluded "the parties could not reach agreement as to the remaining documents listed in the privilege log, as Defendants did not provide any more specific information about said documents and refused to produce them."
On January 10, 2006, a joint report was filed by the parties. According to that report, the defendants provided the plaintiff with an amended privilege log. The plaintiff has not challenged the completeness of the amended privilege log, nor has he requested an in camera review of the documents being withheld as privileged. Any remaining issues cannot be resolved based upon the current state of the pleadings, therefore the plaintiff's motion is DENIED.
For the foregoing reasons, the Motion to Compel filed by the defendant, Universal Steel America, Inc., on January 11, 2006 is DENIED, and the Motion to Compel Production of Documents filed by the plaintiff, Riccardo R. Foggia, Jr., on December 19, 2005 is DENIED.
The parties are WARNED that any documents not produced prior to the January 6, 2006 discovery deadline will be excluded from evidence at trial.