ORDER

*1 Before the Court are Plaintiff's Motion to Exclude Late Produced Documents, Extend Time for Depositions, and for Sanctions (ECF No. 35), filed November 13, 2023, Defendant's Response (ECF No. 39) and Appendix (ECF No. 40), filed November 16, 2023, and Plaintiff's Reply (ECF No. 41), filed November 19, 2023. Plaintiff moves for exclusion of the late-produced discovery, enlargement of the discovery deadline, and an award of monetary sanctions. Having reviewed the briefing and applicable law, the Court GRANTS in part and DENIES in part Plaintiff's Motion (ECF No. 35). Specifically, the Court GRANTS the request to extend discovery to reschedule the Rule 30(b)(6) deposition of Troy Seeling. However, the Court DENIES the request to exclude the documents produced by Defendant after the discovery cut-off deadline and DENIES the request for monetary sanctions.

Plaintiff first argues that the late-produced documents should be excluded. Under Federal Rule 37, a party who fails to disclose documents in accordance with Rule 26 “shall not, unless such failure is harmless, be permitted to use as evidence at trial ... any ... information not so disclosed.” FED. R. CIV. P. 37(c)(1). A district court has discretion to exclude late-produced documents. Tex. A&M Research Found. v. Magna Transp., Inc. 338 F.3d 394, 402 (5th Cir. 2003). When deciding whether the late production was harmless, and thus whether to exclude the untimely documents, the Court considers: (1) the prejudice to the opposing party of allowing the evidence, (2) the importance of the evidence, (3) the possibility for curing such prejudice by granting a continuance, and (4) the explanation, if any, for the party's failure to comply with the disclosure requirements. Id.

Applying these four factors here, the Court declines to exercise discretion to exclude the documents at issue. To begin, the Court determines that the late-produced documents are relevant to the claims and defenses at issue in this lawsuit, which neither party disputes. Despite the importance of these documents, the explanation offered by Defendant for the late production is justified given the timing of various events in this case—including the September 1, 2023 ruling on Defendant's motion to dismiss (ECF No. 20), the September 8, 2023 issuance of a protective order (ECF No. 22), the September 15, 2023 filing of Defendant's answer (ECF No. 23), Plaintiff serving supplemental discovery requests on October 12, 2023, and the parties' late scheduling of various depositions after the discovery deadline. Defendant explains that it produced the documents at issue as a courtesy in advance of the Rule 30(b)(6) deposition of Troy Seeling, which was set for a date beyond the discovery deadline. Moreover, Defendant notes that even if the documents at issue were specifically produced in response to Plaintiff's untimely October 12, 2023 supplemental discovery requests, the production was still timely since it occurred within the typical 30-day period.[1] Given the timeline of events in this case, the Court finds that Defendant's late production was justified and not an effort to sandbag the opposing party.

*2 Moreover, any prejudice to Plaintiff is minimal and harmless. Plaintiff received the late-produced documents nearly a month before the dispositive motion deadline and close to four months before the trial date.[2] This still allows Plaintiff sufficient time to examine the contested evidence before these important deadlines. Even if the late production prejudiced Plaintiff's ability to prepare for the Rule 30(b)(6) deposition of Mr. Seeling, a continuance is still possible at this stage to cure such prejudice. Accordingly, the Court extends the discovery deadline to December 1, 2023 to allow Plaintiff additional time to review the late-produced documents and supplement its preparation for the Rule 30(b)(6) deposition of Mr. Seeling.

Plaintiff next argues that the time for discovery should be enlarged to reschedule the Rule 30(b)(6) deposition of Mr. Seeling and to schedule the deposition of a new witness, Steven Wooster. A district court has broad discretion to enlarge the time for discovery upon a showing of good cause. Bilbe v. Belsom, 530 F.3d 314, 317 (5th Cir. 2008). Based on the reasons discussed above, the Court finds good cause to enlarge the discovery deadline for the limited purpose of rescheduling Mr. Seeling's Rule 30(b)(6) deposition. This extension will cure any prejudice by allowing Plaintiff sufficient time to supplement the universe of documents previously reviewed in preparation for Mr. Seeling's deposition. Importantly, this discovery extension is limited only for the parties to reschedule Mr. Seeling's deposition and does not authorize further discovery, including the deposition of Mr. Wooster.[3] Any questions Plaintiff has regarding the late-produced documents may be asked of Defendant's corporate representative, Mr. Seeling, during his rescheduled deposition.

Accordingly, the Court orders as follows:

The Court DENIES the request to exclude the late-produced documents.
The Court GRANTS the request to enlarge the discovery deadline. The deadline is extended to December 1, 2023 exclusively for the purpose of rescheduling the deposition of Troy Seeling.
All other deadlines in the Court's March 9, 2023 Scheduling Order (ECF No. 16)—including the March 4, 2024 trial date—remain in place.
The Court DENIES the request to impose monetary sanctions.

SO ORDERED on this 20th day of November, 2023.

Footnotes

[1]

Defendant states that the production was not obviously responsive to Plaintiff's May 15, 2023 discovery requests and that Plaintiff's October 12, 2023 discovery requests were untimely served. Even so, Defendant explains that it understood Plaintiff's October 12, 2023 requests as a supplement to the previous May 15, 2023 requests and, notwithstanding its objection regarding the timeliness of the requests, its production is timely and directly responsive to the October 12, 2023 requests.

[2]

Pursuant to the March 9, 2023 Scheduling Order (ECF No. 16), dispositive motions are due on December 6, 2023 and trial is set for March 4, 2024. Plaintiff received the late production of documents from Defendant on November 7, 2023.

[3]

Based on the Court's review, the email correspondence mentioning Mr. Wooster suggests that he merely helped compile the documents and not that he has specific knowledge to warrant his deposition.

Deep Vision Architects, LLC v. Virtuoso, Ltd.

Citation: 2024 WL 4528736 (N.D. Tex. 2024)

Summary: The court grants the plaintiff's request to extend the discovery deadline to reschedule a deposition, but denies the request to exclude late-produced documents and impose sanctions. The court finds the documents relevant and the defendant's explanation for the late production justified. The court also denies the plaintiff's request to enlarge the time for discovery to schedule a new witness's deposition.

Court: United States District Court, N.D. Texas, Fort Worth Division

Date decided: October 17, 2024

Judge: O'Connor, Reed

DEEP VISION ARCHITECTS, LLC, Plaintiff, v. VIRTUOSO, LTD., Defendant Civil Action No. 4:22-cv-01046-O United States District Court, N.D. Texas, Fort Worth Division Filed October 17, 2024 Counsel Brian Casper, Darin M. Klemchuk, Mandi M. Phillips, Klemchuk PLLC, Dallas, TX, Stevan Lieberman, Pro Hac Vice, Greenberg & Lieberman, Washington, DC, for Plaintiff. Shannon Warren Bates, Jordyn Elizabeth Hendrix, Laura Anne Brock, Scott L. Harper, Harper Bates & Champion LLP, Dallas, TX, for Defendant. O'Connor, Reed, United States District Judge ORDER *1 Before the Court are Plaintiff's Motion to Exclude Late Produced Documents, Extend Time for Depositions, and for Sanctions (ECF No. 35), filed November 13, 2023, Defendant's Response (ECF No. 39) and Appendix (ECF No. 40), filed November 16, 2023, and Plaintiff's Reply (ECF No. 41), filed November 19, 2023. Plaintiff moves for exclusion of the late-produced discovery, enlargement of the discovery deadline, and an award of monetary sanctions. Having reviewed the briefing and applicable law, the Court GRANTS in part and DENIES in part Plaintiff's Motion (ECF No. 35). Specifically, the Court GRANTS the request to extend discovery to reschedule the Rule 30(b)(6) deposition of Troy Seeling. However, the Court DENIES the request to exclude the documents produced by Defendant after the discovery cut-off deadline and DENIES the request for monetary sanctions. Plaintiff first argues that the late-produced documents should be excluded. Under Federal Rule 37, a party who fails to disclose documents in accordance with Rule 26 “shall not, unless such failure is harmless, be permitted to use as evidence at trial ... any ... information not so disclosed.” FED. R. CIV. P. 37(c)(1). A district court has discretion to exclude late-produced documents. Tex. A&M Research Found. v. Magna Transp., Inc. 338 F.3d 394, 402 (5th Cir. 2003). When deciding whether the late production was harmless, and thus whether to exclude the untimely documents, the Court considers: (1) the prejudice to the opposing party of allowing the evidence, (2) the importance of the evidence, (3) the possibility for curing such prejudice by granting a continuance, and (4) the explanation, if any, for the party's failure to comply with the disclosure requirements. Id. Applying these four factors here, the Court declines to exercise discretion to exclude the documents at issue. To begin, the Court determines that the late-produced documents are relevant to the claims and defenses at issue in this lawsuit, which neither party disputes. Despite the importance of these documents, the explanation offered by Defendant for the late production is justified given the timing of various events in this case—including the September 1, 2023 ruling on Defendant's motion to dismiss (ECF No. 20), the September 8, 2023 issuance of a protective order (ECF No. 22), the September 15, 2023 filing of Defendant's answer (ECF No. 23), Plaintiff serving supplemental discovery requests on October 12, 2023, and the parties' late scheduling of various depositions after the discovery deadline. Defendant explains that it produced the documents at issue as a courtesy in advance of the Rule 30(b)(6) deposition of Troy Seeling, which was set for a date beyond the discovery deadline. Moreover, Defendant notes that even if the documents at issue were specifically produced in response to Plaintiff's untimely October 12, 2023 supplemental discovery requests, the production was still timely since it occurred within the typical 30-day period.[1] Given the timeline of events in this case, the Court finds that Defendant's late production was justified and not an effort to sandbag the opposing party. *2 Moreover, any prejudice to Plaintiff is minimal and harmless. Plaintiff received the late-produced documents nearly a month before the dispositive motion deadline and close to four months before the trial date.[2] This still allows Plaintiff sufficient time to examine the contested evidence before these important deadlines. Even if the late production prejudiced Plaintiff's ability to prepare for the Rule 30(b)(6) deposition of Mr. Seeling, a continuance is still possible at this stage to cure such prejudice. Accordingly, the Court extends the discovery deadline to December 1, 2023 to allow Plaintiff additional time to review the late-produced documents and supplement its preparation for the Rule 30(b)(6) deposition of Mr. Seeling. Plaintiff next argues that the time for discovery should be enlarged to reschedule the Rule 30(b)(6) deposition of Mr. Seeling and to schedule the deposition of a new witness, Steven Wooster. A district court has broad discretion to enlarge the time for discovery upon a showing of good cause. Bilbe v. Belsom, 530 F.3d 314, 317 (5th Cir. 2008). Based on the reasons discussed above, the Court finds good cause to enlarge the discovery deadline for the limited purpose of rescheduling Mr. Seeling's Rule 30(b)(6) deposition. This extension will cure any prejudice by allowing Plaintiff sufficient time to supplement the universe of documents previously reviewed in preparation for Mr. Seeling's deposition. Importantly, this discovery extension is limited only for the parties to reschedule Mr. Seeling's deposition and does not authorize further discovery, including the deposition of Mr. Wooster.[3] Any questions Plaintiff has regarding the late-produced documents may be asked of Defendant's corporate representative, Mr. Seeling, during his rescheduled deposition. Accordingly, the Court orders as follows: The Court DENIES the request to exclude the late-produced documents. The Court GRANTS the request to enlarge the discovery deadline. The deadline is extended to December 1, 2023 exclusively for the purpose of rescheduling the deposition of Troy Seeling. All other deadlines in the Court's March 9, 2023 Scheduling Order (ECF No. 16)—including the March 4, 2024 trial date—remain in place. The Court DENIES the request to impose monetary sanctions. SO ORDERED on this 20th day of November, 2023. Footnotes [1] Defendant states that the production was not obviously responsive to Plaintiff's May 15, 2023 discovery requests and that Plaintiff's October 12, 2023 discovery requests were untimely served. Even so, Defendant explains that it understood Plaintiff's October 12, 2023 requests as a supplement to the previous May 15, 2023 requests and, notwithstanding its objection regarding the timeliness of the requests, its production is timely and directly responsive to the October 12, 2023 requests. [2] Pursuant to the March 9, 2023 Scheduling Order (ECF No. 16), dispositive motions are due on December 6, 2023 and trial is set for March 4, 2024. Plaintiff received the late production of documents from Defendant on November 7, 2023. [3] Based on the Court's review, the email correspondence mentioning Mr. Wooster suggests that he merely helped compile the documents and not that he has specific knowledge to warrant his deposition.