O'Rourke v. Ehsan Food Corp

Background

Christopher O’Rourke served the defendants with a notice for discovery and inspection and a demand for interrogatories on September 23, 2019. The defendants had not responded. O’Rourke also said the defendants ignored requests to meet and confer, including a December 8, 2019 request and a February 3, 2020 attempt to schedule an inspection.

Defense counsel stated that he could not meet and confer after February 2 because his young son, and then counsel and counsel’s wife, were diagnosed with the flu. The opinion states that there was no indication that any of them had COVID-19. The defendants represented that they would attempt to comply with the discovery requests and asked for a 30-day extension of the discovery period.

Rulings on Discovery and Sanctions

The court denied the motion for sanctions under Federal Rule of Civil Procedure 37(b)(2)(A). That rule applies when a party disobeys a discovery order, while O’Rourke complained about the defendants’ failure to respond to discovery requests rather than a discovery order.

The court treated the application as a motion to compel discovery under Rule 37(a) and granted it. The court found it undisputed that the defendants had failed to make required disclosures, answer the interrogatories, and respond to the request for an inspection. The defendants were ordered to serve responses to the interrogatories and document requests by April 24, 2020.

O’Rourke could seek an order allowing the inspection after the current emergency had ended. The court extended the deadline for completing all discovery to May 15, 2020, except that any necessary inspection could occur later. The parties were ordered to submit a status letter by May 18, 2020, stating whether discovery was complete or the inspection remained outstanding. Previously set deadlines for letters before seeking summary judgment were canceled.

Expenses and Fees

Under Rule 37(a)(5), when a motion to compel is granted, the court generally must require payment of the moving party’s reasonable expenses, including attorney’s fees, unless the failure to disclose was substantially justified or other circumstances would make an award unfair. The court concluded that the illness in defense counsel’s family would have justified an extension if one had been requested, but no extension was requested and counsel did not respond to O’Rourke’s attempts to meet and confer.

The court therefore ordered the defendants to pay O’Rourke’s reasonable expenses for making the motion, in an amount not exceeding $500. Because the amount had not yet been established, O’Rourke’s counsel was ordered to submit a two-page letter brief by March 25, 2020, explaining the time spent on the motion and the hourly fee. The clerk was directed to terminate the letter-motion at Docket Number 29.