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Zhao v. United States of America Dep't of Homeland Security

January 10, 2008


The opinion of the court was delivered by: Honorable Hugh B. Scott United States Magistrate Judge

Hon. Hugh B. Scott


Before the Court is defendant's motion to compel or for Order of preclusion and to extend the time for defendant to complete its discovery (Docket No. 25*fn1 ). This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C), but without authority to hear and report upon dispositive motions (Docket No. 13, Sept. 11, 2006).


This is a Federal Torts Claims Act action for the alleged assault upon plaintiff by employees of the defendant U.S. Department of Homeland Security. Defendant moved (Docket Nos. 17, 22) to extend the deadlines within the Scheduling Order (Docket No. 16), which were granted (Docket Nos. 18 (mediation deadlines), 23-24 (discovery deadlines)). Now defendant moves for an Order compelling plaintiff to provide her initial disclosures under Federal Rule of Civil Procedure 26(a)(1), furnish verified and supplemental responses to defense Interrogatories, and furnish supplemental responses to defendant's first notice to produce. Alternatively, defendant moves for an Order of preclusion, both in general and specifically against plaintiff offering expert evidence. Defendant also moves for another extension of time. (Docket No. 25.) Defendant contends that it needs additional time to make its expert disclosure and to complete discovery (Docket No. 26, Def. Atty. Aff. ¶ 38). Defendant seeks "a minimum of three (3) months, from the expiration of plaintiff's time to comply with any Order of this court in regard to outstanding discovery" (id. ¶ 39), in order to secure medical authorizations and medical records (id.). Defendant seeks to adjust the Scheduling Order accordingly.

Responses to this motion were due by December 19, 2007, with any reply due by January 3, 2008, and the motion was to be submitted (without oral argument) on January 3, 2008 (Docket No. 27), but plaintiff did not file a timely response. Thus, the motion was deemed submitted as of December 19, 2007. Defendant then filed an affidavit in further support of its motion, indicating plaintiff's failure to respond (Docket No. 28, Def. Atty. Aff. ¶¶ 4-5 of Jan. 3, 2008). Defense counsel noted that the only communication she received from plaintiff's counsel was sending her medical authorizations (id. ¶¶ 6-7, Ex. A) which had expiration dates in May 2008, limited the release of plaintiff's mental and physical condition, did not authorize release of prescription and employment records (id. ¶¶ 8-11). Defense counsel wrote on January 2, 2008, requesting unrestricted medical authorizations (id. ¶ 12, Ex. B). She reports that plaintiff's counsel wrote, in December 4, 2007, that he was working on the remaining discovery requests and would respond by the end of that week, but had not (id. ¶¶ 13-14).


I. Standards

A. Discovery and Motion to Compel

Discovery under the Federal Rules is intended to reveal relevant documents and testimony, but this process is supposed to occur with a minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 655-65 (Civil 2d ed. 1994). Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an order compelling discovery, with that motion including a certification (also required by this Court's Local Civil Rule 37) that the movant in good faith conferred or attempted to confer with the party not making the disclosure to secure that disclosure without court intervention. Fed. R. Civ. P. 37(a)(2)(A).

Failure to comply with a discovery order would subject the disobedient party to various possible sanctions, Fed. R. Civ. P. 37(b)(2). As with imposition of Rule 37(d) sanctions for failure to comply with discovery demands, Rule 37(b) sanctions must be weighed in light of the full record. See Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures, 602 F.2d 1063, 1068 (2d Cir. 1979). Rule 37(b)(2) lists various sanctions including preclusion or dismissal of claims, Fed. R. Civ. P. 37(b)(2)(A) (facts established), (B) (refusing to allow disobedient party to support claim or defense), (C) (striking pleadings), or (D) (contempt of court for failing to produce witness), as well as payment of opponent's reasonable expenses, and attorneys' fees. The dismissal of a defense or preclusion of evidence for failure to respond to a discovery request is a drastic remedy, Burnett v. Venturi, 903 F. Supp. 304, 309 (N.D.N.Y. 1995); see National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976) (per curiam) (dismissal as severest sanction), the level of sanction is available for flagrant discovery abuses, see Szatanek v. McDonnell Douglas Corp., 109 F.R.D. 37, 41 (W.D.N.Y. 1985) (Elfvin, J.) (harsh discovery sanction to strike an answer) (see Docket No. 39, Def. Memo. at 17). But for sanctions under Rule 37(b)(2), there first needs to be a Court Order compelling discovery that has been ignored. Fed. R. Civ. P. 37(b). Absent such an Order, a movant is not entitled to Rule 37(b) sanctions. See 8A Federal Practice and Procedure, supra, § 2289, at 669; United States v. Kattar, 191 F.R.D. 33, 35 (D.N.H. 1999) (quoting R.W. Int'l Corp. v. Welch Foods, Inc., 937 F.2d 11, 15, 16 (1st Cir. 1991)). The only relief available when a party fails to respond to a discovery demand is an Order to compel and sanctions of the reasonable costs associated with the motion to compel, Fed. R. Civ. P. 37(a)(2)(B), (4)(A). The increased sanction of Rule 37(b) arises because the party disregards both the discovery demand and the Court's Order compelling production. See also Fed. R. Civ. P. 37(b)(2)(D) (in lieu of foregoing order, party could be held in contempt of court for failing to obey discovery order). Plaintiff's request for relief could be construed as anticipating the breach of an Order to compel, but at this stage such anticipatory relief is not available.

If a party fails (without justification) to provide initial disclosure under Rule 26(a), it is not permitted to use the withheld evidence at trial as well as other sanctions, including reasonable motion costs, and Rule 37(b)(2) sanctions, Fed. R. Civ. P. 37(c)(1).

B. Amending the Scheduling Order

Modification of a Scheduling Order is done only upon a showing of good cause. Fed. R. Civ. P. 16(b); see 6A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure ยง 1522.1, at 230-31(Civil 2d ed. 1990). "In the absence of some showing of why an extension is warranted, the scheduling order shall control." Id. at 231. This Court has broad discretion in preserving the integrity of its Scheduling Orders, see Barrett v. Atlantic ...

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