Grant v. Witherspoon

Background

Plaintiff Ronald Grant filed a letter-motion seeking a certification from the defendants about the source of documents produced in discovery. The defendants had amended their responses to identify which defendants produced which documents. The production consisted of approximately 500 pages.

Grant questioned the defendants’ statement that the responsive documents were produced by Angela Robinson Witherspoon or T Boyds Boy Productions, Inc., rather than personally by John Witherspoon. John Witherspoon had been T Boyds’s chief financial officer, although defense counsel explained that he was chief financial officer in name only and that Angela Robinson Witherspoon actually handled the business’s financial operations. John Witherspoon died on October 29, 2019.

Grant asked the court to order the defendants to certify which defendant provided each document and to certify that John Witherspoon had no responsive documents in his possession, custody, or control.

Analysis

The court explained that discovery requests must seek information relevant and proportional to the needs of the case under Federal Rule of Civil Procedure 26(b)(1). When a party seeks additional discovery about how the opposing side conducted its document search—sometimes called “discovery on discovery”—the party must provide an adequate factual basis for that request. Courts must scrutinize such requests because they can extend an already costly and time-consuming discovery process.

The court found that Grant had not provided an adequate factual basis for his suspicion that responsive documents remained undisclosed in John Witherspoon’s possession, custody, or control. The court stated that the defendants’ account was not inherently implausible given the close relationship among the individual defendants and the close corporation owned by one of them. Grant also had not identified any documents or categories of documents that he expected to receive but had not received.

The court further noted that the defendants had already stated in writing through counsel that, before his death, John Witherspoon had no responsive documents in his possession or control. They had also stated that the produced documents were provided solely by Angela Robinson Witherspoon, except for documents identified by Bates number as provided by both Angela Robinson Witherspoon and T Boyds Boy Productions, Inc. The court was not persuaded that ordering the defendants to certify those same facts would provide additional clarity or certainty.

Ruling

Judge Barbara Moses denied the letter-motion at Dkt. No. 81. The court also reminded the parties that initial expert reports were due on January 6, 2020.