Opinion
Civ. Action No. 02-1426-WEB.
April 4, 2005
Memorandum and Order
This matter is before the court on Claimant Timothy Heffernan's objection to an order of the Magistrate Judge. (Doc. 95). The Magistrate denied claimant's motion for an extension of time to complete discovery, finding that claimant had been given ample opportunity for discovery and that any failure to complete it in a timely manner was attributable to claimant and his counsel. Doc. 91 at 7. The United States has filed a response. Doc. 99. The court finds oral argument would not assist in deciding the issues presented.
I. Background.
A rather extensive history of the case will be set forth to put claimant's objection in context. The United States filed this action on November 27, 2002, seeking to forfeit $49,000 in U.S. Currency seized during a highway traffic stop. Doc. 1. On March 17, 2003, Mr. Heffernan filed an answer and a verified claim asserting an interest in the money. Doc. 6, 7. On June 9, 2003, claimant moved to suppress the evidence and to dismiss the complaint, arguing that the currency was discovered as the result of an unlawful search and seizure by Trooper John D. Rule of the Kansas Highway Patrol. Claimant also moved, without opposition, to stay discovery pending a ruling by the court on that issue. The Magistrate granted the stay. Doc. 26, 31, 32. On November 18, 2003, the court conducted an evidentiary hearing on the motion to suppress — including testimony from Trooper Rule and claimant Timothy Heffernan — and denied the motion on December 2, 2003, finding that the search and seizure were lawful. Doc. 46.
On January 21, 2004, the Magistrate Judge entered a scheduling order with a discovery deadline of July 13, 2004. Doc. 50. On June 28, 2004, the plaintiff, on behalf of both parties, moved for an extension of the deadline, pointing out that claimant's counsel would be out of the country for the next three weeks, which would make it impossible to complete discovery before the deadline. Doc. 55. The Magistrate granted the request and set a new deadline of September 10, 2004. Doc. 56. On September 10, 2004, the United States filed a motion to compel claimant's response to interrogatories, requests for documents, and the taking of his deposition. In a supporting affidavit, plaintiff's counsel stated that he had attempted unsuccessfully on numerous occasions to get claimant's counsel to provide such discovery. Doc. 57. In a subsequent motion, plaintiff stated that the parties had agreed to take Mr. Heffernan's deposition on October 26, 2004. The Magistrate then granted plaintiff's motion to compel as uncontested, ordering claimant to respond to the interrogatory and production requests by October 15, 2004, and to submit to a deposition on October 26, 2004. The order noted that a failure to comply could result in the imposition of sanctions, including the entry of default judgment against claimant. Doc. 60. The Magistrate again extended the discovery deadline to November 1, 2004.
On October 18, 2004, plaintiff moved to strike Mr. Heffernan's claim, alleging that claimant had failed to comply with the court's order directing him to respond to the interrogatories and production requests. On November 1, 2004, claimant (through new local counsel) filed notice that he had belatedly responded to the discovery requests, and argued the motion to strike should be denied. Doc. 64-66. Claimant also moved for a 60-day extension of the discovery deadline to permit the taking of Rule and claimant's depositions. He noted that "counsel for claimant, through his own negligence and difficult schedule, did not comply with this Court's earlier order requiring claimant's responses . . . by the ordered date of 15 October 2004. * * * As a result, the parties had mutually cancelled their scheduled depositions of 26 October 2004" to await the court's ruling on the motion to strike. Doc. 67. On November 22, 2004, after a status conference with the parties, the Magistrate Judge denied the United States' motion to strike the claim. The Magistrate also granted an extension of the discovery deadline to January 21, 2005. Doc. 68. On November 29, 2004, after claimant objected to the United States' request for production of his tax returns, the Magistrate set a deadline for claimant to either: (1) state that he had filed no tax returns, or (2) produce his tax returns as requested in the plaintiff's Request for Production, or (3) provide authority to the court as to why his income tax returns were confidential. Doc. 69. In response, claimant asserted that he was not required to produce his tax returns due to a right of privacy under 26 U.S.C. § 6103(a). Doc. 71. On December 16, 2004, the United States noticed claimant's deposition for February 7, 2005. The United States also served interrogatories and another request for production of documents upon claimant. Doc. 74, 75. On January 7, 2005, based upon counsels' proposals, the Magistrate Judge entered a revised scheduling order which stated that the depositions of Trooper Rule and claimant shall be taken on February 7, 2005, and that all discovery shall be commenced or served in time to be completed by February 28, 2005. Doc. 77.
On January 10, 2005, the Magistrate Judge entered an order denying claimant's objection to producing his tax returns, and ordered him to produce the returns by January 24, 2005. In a footnote the Magistrate declined the United States' request for an order directing claimant to state whether or not he had actually filed tax returns for these years. The Magistrate noted that claimant's assertion of a privilege not to disclose the returns implied that the returns existed, but in any event plaintiff could question the claimant about the matter at his deposition. Doc. 78.
On January 20, 2005, claimant filed notice that Trooper Rule's deposition was to be taken on February 7, 2005, and also caused a subpoena duces tecum to be issued to Trooper Rule. Doc. 79. On February 1, 2005, the United States moved to quash the subpoena duces tecum, arguing that it was improperly served, that claimant already had some of the requested documents, and that claimant had waived any right to seek the remaining documents by not moving to compel their production after the United States had previously objected to a request for them. Plaintiff also argued that production of the documents would be an undue burden on the Trooper, who was not the custodian of the records, and that the documents were irrelevant to the remaining issues in the case. Doc. 80. In response, claimant generally disputed plaintiffs' arguments but conceded the motion to quash should be granted because the Trooper could not produce the records. Doc. 81. On February 10, 2005, the Magistrate granted the motion to quash as uncontested. Doc. 83. Meanwhile, the United States again moved to strike Heffernan's claim, asserting that claimant had willfully failed to obey the court's order of January 10th directing him to produce his tax returns. Doc. 82. In response, claimant asserted that he was not in violation of the Magistrate's order because he was not in the "possession, custody or control" of any such documents. He further argued that he was not obligated to execute a release authorizing the IRS to release the returns. He maintained that he had complied with plaintiff's request for the documents in good faith and that if the court ruled he had to do anything else relating to his tax returns, then he "will consider his options at that time." Doc. 84.
On February 18, 2005, the United States filed notice of its intent to take Mr. Heffernan's deposition on February 28, 2005, the last day for discovery. On February 25, 2005, claimant filed another motion to extend the discovery deadline. Claimant pointed out that counsel had previously agreed to set the depositions of claimant and Trooper John D. Rule for February 7th so as to coincide with another hearing in this district involving claimant's out-of-state counsel, thereby reducing the financial burden on both claimant and his counsel. Claimant alleged that the United States "interfered" with the scheduled deposition of Rule by moving to quash the subpoena duces tecum and by refusing to present Rule with the requested documents, "thereby making a sham out of the [scheduled] deposition of Trooper Rule," and, according to claimant, violating the terms of the parties' coordination agreement. Doc. 86 at 1-2. Claimant said that due to plaintiff's interference, the scheduled depositions on February 7th were canceled, and that the United States' current attempt to notice Heffernan's deposition for February 28th "would effectively deny claimant the opportunity to meaningfully depose Trooper Rule and, at the same time, create great financial hardship on claimant and his counsel, who are unable, in any event, to attend that deposition on such short notice." Id. at 2. In response, counsel for the United States stated that he made several attempts after February 7th to set a new deposition date before the February 28th deadline, but that claimant's counsel had not agreed to a date. He conceded he had previously told claimant's counsel he would not oppose a request to extend the discovery deadline, but that in view of claimant's last-minute request and his assertion that the failure to complete discovery was the fault of the United States, plaintiff now opposed an extension. Doc. 87. In reply, counsel for claimant accused plaintiff's counsel of misrepresenting the relevant facts. Doc. 88.
On March 1, 2005, this court denied the United States' motion to strike Mr. Heffernan's claim on the grounds that not all of the issues relating to production of Mr. Heffernan's tax returns had been presented to the Magistrate Judge. Specifically, it appeared to this court that in his response to the motion to strike, Mr. Heffernan had argued for the first time that he had no tax returns in his possession. The court also noted there were other discovery issues pending before the Magistrate. Doc. 89.
On March 7, 2005, the Magistrate Judge denied claimant's motion to further extend the deadline for discovery. Doc. 91. The Magistrate rejected claimant's assertion that the United States had reneged on the parties' coordination agreement by refusing to produce the documents requested of Trooper Rule, noting that the record suggested the United States had never agreed to production of these documents, and that claimant's issuance of a subpoena duces tecum prior to Rule's deposition was "a belated effort to gather documents that had previously been objected to by plaintiff." Id. at 5. The Magistrate then reviewed the history of the case, including claimant's failures to comply with the court's prior orders and his belated assertion that he had no tax returns in his possession to produce. Id. at 6. The Magistrate concluded that claimant had been granted ample time to conduct discovery and that the failure to complete it in a timely manner was due to claimant and his counsel. Id. at 7.
II. Objection.
Claimant contends the Magistrate erred by finding that the subpoena duces tecum issued to Trooper Rule was inconsistent with the parties' coordination agreement. According to claimant, the Government's opposition to the subpoena was an attempt "to deny Claimant an opportunity to meaningfully examine Trooper Rule," Doc. 95 at 2, and was inconsistent with the Government's agreement to produce Rule for a deposition. Claimant contends the Magistrate further erred by finding that the subpoena was improperly served and that the witness fee should have been included with the subpoena. Id. at 2. Claimant contends the Magistrate "ominously condemned Claimant for transgressions not even litigated, and, by its solicitation to the government to file additional motions, suggests that the Magistrate Court is already predisposed to injure Claimant and favor the government." Id. at 3. He argues the Magistrate's conclusion that he and his counsel were to blame for the failure to complete discovery "completely ignored the great efforts that were made by Claimant and his counsel to arrange the coordinated deposition[s],"and "that it was only the government that thwarted that coordinated schedule by refusing to have Trooper Rule comply with Claimant's deposition request." Id. Claimant contends the Magistrate Judge's order denies him the opportunity to take Rule's deposition and "traps Claimant into a loss of due process rights to fairly litigate this case, thus unreasonably favoring the government's litigation position," and the Magistrate "irreparably and unfairly skewed this case in favor of the government and denied Claimant an opportunity for — indeed his Constitutional due process right to have — a fair hearing." Id. at 7.
III. Discussion.
A party may object to a magistrate judge's order relating to a discovery matter. See Fed.R.Civ.P. 72(a). Upon review, the district court may "modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law."Fed.R.Civ.P.72(a); see also 28 U.S.C. § 636(b)(1)(A). Under this standard, the district court must affirm the magistrate's rulings unless on the entire evidence it is left with the definite and firm conviction that a mistake has been committed. Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). Because a magistrate is afforded broad discretion in the resolution of non-dispositive discovery disputes, the court will overrule the magistrate's determination only if this discretion is abused. Comeau v. Rupp, 762 F.Supp. 1434, 1450 (D.Kan. 1991).
The court's review demonstrates that the Magistrate Judge's ruling is not clearly erroneous or contrary to law, nor does it constitute an abuse of discretion. The record makes clear that claimant has been given more than ample opportunity to complete discovery in a timely manner. The court is thoroughly unpersuaded by claimant's argument that the Magistrate ignored plaintiff's "interference" with Trooper Rule's deposition and thereby deprived claimant of a fair opportunity to conduct discovery. The record indicates that by December 20, 2004, claimant was aware of the United States' position that the requested documents had already been produced or were irrelevant in light of the court's ruling on the motion to suppress. Claimant cannot claim unfair surprise from the fact the United States moved to quash a subpoena for the very same documents, or from the fact that the Magistrate granted what was in actuality an uncontested motion to quash. Nor has any credible showing been made that the United States ever agreed to produce these documents in connection with Trooper Rule's deposition. Nor did claimant make any credible showing that the documents he requested were in fact relevant and material to the issues in controversy or were necessary for a meaningful deposition of the Trooper. Claimant merely asserted that the documents contained "important information needed to conduct the depositions" or were "relevant to the credibility" of the Trooper. In short, claimant failed to show good cause for failing to take Trooper Rule's deposition in a timely manner or for otherwise failing to complete the remainder of discovery within the deadline set by the Magistrate. Claimant was not "forced" to miss these depositions by the plaintiff or the Magistrate; his own conduct was the cause of the failure. The Magistrate's order denying the request to extend the discovery deadline was well within the bounds of her discretion.
The court also rejects claimant's assertion that the Magistrate's order reflects a bias toward the government or otherwise deprives claimant of due process. This contention seems to spring from claimant's interpretation of this court's order denying the United States' motion to dismiss his claim. The court denied that motion primarily because claimant's explanation for not producing his tax returns — i.e., that he had no such documents in his custody — evidently had not been asserted in his previous arguments before the Magistrate. In so ruling, this court in no way intended to convey approval for claimant's apparent strategy of raising piece-meal objections to production of the tax returns. The Magistrate's characterization of claimant's conduct in the course of discovery is supported by the record and does not suggest any bias. Nor has claimant otherwise been deprived of due process. He has been given an adequate opportunity to conduct discovery. There was certainly nothing improper about claimant's attempts to reduce expenses by consolidating discovery, but his preference in that regard does not excuse him from complying with the court's deadline — a deadline that was extended by the Magistrate on several occasions. Moreover, the court notes that claimant has already had one opportunity in this case to cross-examine Trooper Rule in the course of the suppression hearing. He has shown nothing to this court to suggest he has been deprived of due process in connection with discovery.
IV. Conclusion.
Claimant's objection to the Magistrate Judge's Order Denying an Extension of Discovery (Doc.) is DENIED. The Magistrate Judge's Memorandum and Order (Doc.) is AFFIRMED. IT IS SO ORDERED.