No. 04 Civ. 0627 RCCMHD
United States District Court, S.D. New York
July 07, 2005
MEMORANDUM & ORDER
*1 Plaintiff Papyrus Technology Corporation seeks an order directing defendant New York Stock Exchange to produce certain computer files. (See
June 24, 2005 letter to the Court from Stephen J. Lieb, Esq .). The application is seriously untimely and is denied.
Fact discovery was completed by January 14, 2005, and expert discovery was to end in March 2005. (See
Stipulation & Order dated Dec. 9, 2004). For various reasons, including plaintiff's last-minute disclosure of a supplemental expert report, the parties and the court agreed to a limited reopening of expert discovery to permit defendant to complete depositions of plaintiff's experts. It was not until several weeks after the completion of those depositions that plaintiff demanded additional disclosure by defendant. (See
Lieb letter at Ex. 1 (April 19, 2005 letter from Mr. Lieb to Michael M. Murray, Esq.)). Plaintiff's only explanation for this delay is the general assertion that Papyrus did not learn of the requested files until recently. (See id.
Plaintiff's assertion is disingenuous. Plaintiff served its requests for computer files in April 2004, and defendant objected to the requests as overbroad and burdensome, but it did produce the files that it agreed were relevant, which involved so-called source codes. Moreover, in October 2004, defendant provided to plaintiff's counsel a list of all of its computer files, including the ones now in issue. (See id.
at Ex. 7). Thus plaintiff had ample time to determine whether it needed those files in the months before its attorney represented to the court, on February 23, 2005, that no further issues remained with respect to fact discovery. (See
Feb. 23, 2005 Tr. at 2).
Plaintiff did not pursue its current demand until weeks after completion of expert depositions, thus at least suggesting that it was seeking, post-discovery, to expand the scope of the issues involved in this case. That suggestion is further strengthened by plaintiff's justification for its current request, that “[t]hose files are material to Papyrus's infringement claims because they may provide additional bases for infringement.” (Lieb letter to the Court at 1).
As for plaintiff's suggestion that the untimeliness of its demand is immaterial because defendant has a continuing duty to supplement its discovery responses, we reject that assertion. The continuing duty to which defendant refers is defined by Fed.R.Civ.P. 26(e)(2), which requires supplementation:
if the party learns that the response [to a request for production] is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during discovery or in writing.
Plaintiff makes no showing that this is the case here. Plaintiff sought a broad array of computer data in 2004 and the defendant supplied some, objected to some, and identified all of the files in question. Plaintiff chose not to pursue the matter until now, and offers no basis either for excusing this delay or for deeming the files in question to be so significant as to justify reopening discovery more than five months after its close.
*2 For the reasons noted, plaintiff's demand for additional production of computer files by defendant is denied.
End of Document.