Charles v. Pinnacle Too, LLC

Background

Defendants Pinnacle Too, LLC, Agir Electrical, LTD, Antony Gironta, Frank Crum 6, Inc., and Frank Crum, Jr. asked the court for a short extension of the discovery deadline and an order requiring plaintiffs to provide several categories of documents. Discovery is the pretrial process in which parties exchange information and evidence. The requested materials were: (1) notes taken by plaintiff Charles during a virtual deposition; (2) Charles’s unemployment records; and (3) emails, WhatsApp messages, text messages, and other communications sent by plaintiff McIntosh to defendants. Defendants also asked plaintiffs to explain what search efforts they made to find responsive documents.

Plaintiffs opposed the extension. They argued that defendants had waited until March 2024 to raise disputes about documents produced in November 2023 and that plaintiffs had already provided documents and responses. Plaintiffs also characterized requests for phone records and text messages as cumulative and burdensome.

Court’s Analysis

The court held that notes used by a witness to refresh recollection while testifying must generally be produced under Federal Rule of Evidence 612(a)(1). Although defendants had not explained precisely how notes taken during a deposition fit that rule, plaintiffs did not claim that the notes were privileged or otherwise outside the rule. The court therefore required production of Charles’s notes.

The court found the unemployment records relevant to damages mitigation—that is, whether unemployment benefits affected the damages claimed—and noted that defendants requested them before discovery closed. It therefore required plaintiffs to produce those records.

As to McIntosh’s emails and text messages, the court explained that it generally relies on attorneys’ representations about their document searches. Here, however, McIntosh testified that he had emails about applying for leave and had texted a manager, while also indicating that he needed to check whether the text remained on his phone. The court concluded that there were reasons to believe responsive documents might still be in plaintiffs’ possession. Plaintiffs therefore had to produce the records or send defendants a letter explaining why the records were no longer in their possession.

Ruling

Judge Willis granted defendants’ request for a short extension of the discovery deadline until June 24, 2024, but limited the extension to plaintiffs’ production of the requested notes, unemployment forms, emails, and phone records. The court stated that no other discovery requests were permitted and that no further extensions would be granted absent extraordinary purposes. The parties were ordered to provide a status update by June 28, 2024, and the clerk was asked to close docket entry 131.