Smith v. Pergola 36 LLC

Background

On October 13, 2022, the plaintiffs moved to compel discovery, deem Pergola 36 LLC’s objections to the plaintiffs’ discovery requests and electronically stored information protocols waived, and require revised initial disclosures complying with Federal Rule of Civil Procedure 26(a). Pergola 36 LLC separately requested additional time to respond to the second amended complaint and to the plaintiffs’ discovery requests.

The plaintiffs had served document requests and a proposed electronically stored information protocol on August 31, 2022. Pergola 36 LLC did not respond within the initial 30-day period. During that period, new counsel was substituted as the company’s counsel of record. The new counsel requested additional time to respond to the discovery and to the amended complaint. The plaintiffs agreed to some additional time but not to the full extension requested by Pergola 36 LLC. As of October 14, 2022, the company had not responded to the discovery requests or protocols.

Discovery objections and deadlines

The court explained that a party generally waives objections by failing to respond to discovery requests on time, but courts generally impose that consequence when there is no good cause for the delay, when the party still has not responded after court intervention, or when the party has failed entirely to respond. The court found that none of those circumstances applied. This was the plaintiffs’ first request for court intervention, Pergola 36 LLC had offered a valid explanation for the delay, and its new counsel had promptly and timely requested a modest extension. The court also found that the plaintiffs had not shown that further extending written discovery would prejudice them.

The court therefore denied the plaintiffs’ motion to compel discovery and to deem Pergola 36 LLC’s objections waived. The court granted the agreed request to extend the deadline for Pergola 36 LLC to respond to the second amended complaint until October 28, 2022. It also ordered the company to serve responses to the pending discovery requests by October 31, 2022, adopting the compromise deadline proposed by the plaintiffs. The court stated that if Pergola 36 LLC failed to respond by October 31, it would deem any objections to the discovery requests waived.

Initial disclosures and disposition

The court denied the request for an order requiring revised initial disclosures because the disclosures were not before the court, preventing it from determining whether they violated Rule 26(a). The court nevertheless reminded counsel of the duty to update initial disclosures on time. The court stated that the plaintiffs’ motion was granted in part and denied in part, directed the Clerk of Court to close Docket Number 26, and entered the order on October 17, 2022. Judge Lewis J. Liman signed the order.