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Peggy Harley v. Ann Nesby

December 12, 2011


The opinion of the court was delivered by: Pitman, United States Magistrate Judge


I. Introduction

By notice of motion dated February 17, 2011 (Docket Item 56), defendants Shanachie Entertainment Corporation and Vaughn Harper ("Shanachie," "Harper," or collectively, the "Moving Defendants") move for an Order pursuant to Rules 16 and 37 of the Federal Rules of Civil Procedure precluding plaintiff from offering at trial or using in connection with any motion all documents that plaintiff has not produced by the date the motion was filed and awarding the Moving Defendants the costs and attorneys' fees they incurred in seeking to compel plaintiff to produce the documents and information on which she bases her claims. For the reasons set forth below, the Moving Defendants' motion is granted; plaintiff is hereby (1) precluded from offering at trial or using in connection with any motion, any documents she had not produced by February 17, 2011 and (2) ordered to pay the Moving Defendants costs and reasonable attorneys' fees the Moving Defendants have incurred in making this motion.

II. Facts

Plaintiff commenced this action on June 27, 2008 and seeks to recover damages related to the alleged theft of plain-tiff's musical work "It Will Never Happen Again." Plaintiff alleges that she provided defendant Vaughn Harper with a copy of her ten-track album which contained "It Will Never Happen Again" and, in retaliation for plaintiff's refusing to work with Harper on a forthcoming production, Harper, together with defendants Ann Nesby, Timothy W. Lee, and several others, "conspired to steal [plaintiff's] [w]ork entitled 'It Will Never Happened Again[,'] dissecting [her] composition, [and] retitling it 'I apologize'" (Amended Complaint (Docket Item 4) at 5). Plaintiff alleges that "Harper's actions counter acted [sic] [plaintiff's] marketing campaign strategy, causing [plaintiff] to lose [her] life['s] savings and audiences by granting 'Access' to Nesby before [plaintiff's] album was nationally released" (Amended Complaint 5-6).

Plaintiff further alleges that Nesby was nominated for a Grammy Award in 2008 for the song that was stolen from plaintiff thereby depriving plaintiff of the award and "all of its benefits" and that plaintiff may be "blackballed" in the music industry as a result of plaintiff's response to defendants' actions (Amended Complaint 7, 10, 11). Plaintiff claims she suffered economic damages and emotional distress as a result of defendants' actions (Amended Complaint 10-11).

By Order dated March 23, 2010, the Honorable William H. Pauley, III, United States District Judge, directed that all discovery in the action should be completed by July 30, 2010 (Scheduling Order No. 5 (Docket Item 27)). On April 9, 2010, Shanachie served interrogatories and requests for production of documents on plaintiff (Ex. A to Declaration of Juan Maldonado, Esq. in Support of Motion to Impose Sanctions, dated Feb. 17, 2011 (Docket Item 59)("Maldonado Decl.")). Shanachie sought, inter alia, all documents concerning the damages plaintiff suffered, a recording of "It Will Never Happen Again," lead sheets for that song, all documents concerning the similarities between plaintiff's song and the song produced by some of the defendants ("I Apologize"), and all other documents concerning her claims (Ex. A to Maldonado Decl. 4-6). By telephone call and a subsequent letter dated May 24, 2010, Shanachie's counsel contacted plaintiff requesting that plaintiff respond to Shanachie's discovery request or "meet and confer" regarding any disputes. The letter also cautioned that if plaintiff did not respond, Shanachie might move to compel plaintiff's response and might request sanctions or attorney's fees for costs incurred in bringing a motion to compel (Ex. B to Maldonado Decl.).

On June 4, 2010, Shanachie's counsel wrote to Judge Pauley, informed Judge Pauley that plaintiff had not responded to Shanachie's discovery request, and sought leave to file a motion to compel plaintiff's response (Ex. C to Maldonado Decl. (Docket Item 37)).

Judge Pauley held a conference on June 24, 2010 and, by an Order dated June 28, 2010, directed plaintiff to serve responses to Shanachie's discovery requests by July 30, 2010 and extended the discovery deadline to November 5, 2010 (Ex. D to Maldonado Decl. (Docket Item 39)). On July 24, 2010, plaintiff served a response to Shanachie's document requests (Ex. E to Maldonado Decl. (Docket Item 40)). Plaintiff did not produce any responsive documents in connection with her July 24, 2010 response; rather, plaintiff responded to nearly every request with some variation of the phrase "information is privileged or subject for trial" (Ex. E to Maldonado Decl. 1-4). On August 16, 2010, Shanachie's counsel wrote to plaintiff and asked her to confirm whether she had in her possession any documents responsive to Shanachie's document request which she intended to use at trial. Shanachie's counsel also informed plaintiff that if she did not respond by August 27, 2010, Shanachie intended to move for an order compelling plaintiff to produce all relevant, non-privileged documents and precluding plaintiff from introducing any documents that she does not produce in discovery (Ex. F to Maldonado Decl.). Shanachie's counsel wrote to me on September 7, 2010, citing the deficiencies in plaintiff's response to their document requests and seeking, pursuant to Rule 2.A*fn1 of my Individual Practice Rules and Local Civil Rule 37.2, an informal conference to resolve the discovery dispute between Shanachie and plaintiff (Ex. G to Maldonado Decl.).

On July 22, 2010, Harper served interrogatories and requests for production of documents on plaintiff (Ex. C to Declaration of Melvin Reddick, Esq. in Support of Motion to Impose Sanctions, dated Feb. 17, 2011 (Docket Item 60)("Reddick Decl.")). Counsel for Harper called and subsequently wrote to plaintiff on September 2, 2010, seeking to resolve any dispute over Harper's discovery requests and informing plaintiff that if she did not respond by September 10, 2010, Harper would ask the Court to compel plaintiff's response (Ex. D to Reddick Decl.). Although plaintiff responded on September 7, 2010 informing Harper that she would respond to his requests by September 17, 2010, plaintiff did not respond on that date and on September 21, 2010, counsel for Harper wrote to me and regarding plaintiff's failure to respond and requested, pursuant to Rule 2.A of my Individual Practice Rules and Local Civil Rule 37.2, an informal conference to resolve the discovery dispute between Harper and plaintiff (Ex. E and F to Reddick Decl.).

On September 24, 2010, plaintiff filed her disclosures pursuant to Rule 26(a)(1); no documents where attached to those disclosures and they largely repeated the allegations made in plaintiff's amended complaint (Ex. H to Maldonado Decl. (Docket Item 41)). Plaintiff also resent to Shanachie her earlier deficient responses to Shanachie's document requests (Ex. H to Maldonado Decl.), and plaintiff responded to Harper's interrogatories,*fn2 but not to his document requests (Ex. G to Reddick Decl. (Docket Item 40)).*fn3

By letter dated October 1, 2010, a telephone conference was scheduled for October 18, 2010 at 12:00 p.m. to resolve the issues raised by counsel for Shanachie and Harper in their letters. On October 18, 2010 I held a conference call; all parties appeared on the teleconference except for plaintiff. My deputy attempted to call plaintiff but was only able to reach her voice mail. In order to give plaintiff, who was and is proceeding pro se, an opportunity to respond as to the deficiencies in her responses to Shanachie's and Harper's document requests, I advised defendants that I would issue an Order to Show Cause which would give plaintiff an opportunity to respond to the Moving Defendants' letters. I also asked the defendants to submit a joint proposal to set an amended discovery schedule because the schedule set by Judge Pauley, which required that all discovery be complete by November 5, 2010, no longer seemed feasible. Later that day, I received a letter from plaintiff dated October 5, 2010, stating that she preferred an in-court conference to resolve the outstanding discovery disputes and, as a pro se litigant, she did not feel comfortable talking about legal matters by way of a conference call (Ex. J to Reddick Decl. (Docket Item 43)).

In an effort to accommodate plaintiff, I issued an Order stating: "In light of plaintiff's submission dated October 5, 2010 concerning the conference call that had been scheduled for today, an in-person conference to address the discovery applications made by Shanachie Entertainment Corporation and Vaughn Harper will be held on October 29, 2010 at 2:00 p.m. in Courtroom 18A" (Order to Show Cause, dated Oct. 18, 2010 (Docket Item 44)).

On October 29, 2010 I held the in-person conference sought by plaintiff. Plaintiff, however, did not appear. Because plaintiff had received notice of the conference, I proceeded without her and noted that plaintiff's responses to the Moving Defendants' document requests seemed to be based on a misconception that all documents she planned to use at trial in furtherance of her claims are somehow privileged and she is entitled to withhold those documents until trial. I also noted that preclusion of documents plaintiff fails to produce during discovery would be an automatic under Rule 37(c) of the Federal Rules of Civil Procedure.

After that conference, I issued the following Order:

By Order dated October 18, 2010, I granted plaintiff's application to resolve a discovery dispute in this matter through an in-person conference rather than by conference call and scheduled the discovery conference for 2:00 p.m. today. At 2:00 p.m., counsel for Shanachie Entertainment Corporation ("Shanachie") and Vaughn Harper were present; plaintiff was not. After waiting one-half hour with no word from plaintiff, a member of my staff called plaintiff but was able to reach only her answering machine. Since it appeared that plaintiff had waived her right to appear and be heard at the conference, I conducted the conference without her and granted the discovery applications of Shanachie and Harper on default.

Accordingly, it is hereby ORDERED that no later than November 12, 2010, plaintiff is to produce all non-privileged documents requested by Shanachie and to provide a schedule of all documents withheld by plaintiff on the ground of privilege. In this regard, plaintiff should note the work-product doctrine protects only documents and other materials that are prepared in contemplation of litigation. It does not ordinarily protect documents prepared in the ordinary course of individual's business or other activities. Plaintiff should also note that a failure to produce a document in discovery that is not protected by a privilege or the work-product doctrine ordinarily results in a prohibition against that document being used at trial or in connection with any motion.

Fed.R.Civ.P. 37(c)(1). In other words, a party cannot hold its evidence in secret and then disclose it ...

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