Lebenns v. Frost Productions
- Barbara Moses
- 1:21-cv-11155
- U.S. District Court · Southern District of New York
- 4
In Lebenns v. Frost Productions, Judge Willis granted reconsideration barring a forensic examination and kept the discovery-extension request pending further briefing.
The ruling directly affected Andrew Lebenns and the Defendants in the discovery process: it eliminated the proposed forensic examination of Brendan McCarrick’s electronic devices and required additional briefing before ruling on Lebenns’s request to extend discovery.
What happened
In Lebenns v. Frost Productions, Defendants asked the court to reconsider its earlier permission for Andrew Lebenns to hire a forensic expert to examine Brendan McCarrick’s electronics. Lebenns asked the court to reconsider its decision closing discovery and extend the deadlines for additional discovery and a damages expert.
The court granted Defendants’ reconsideration request. It explained that McCarrick is not a party to the case and that the earlier decision had mistakenly treated him as one; the court therefore found that no forensic examination was warranted. The court did not yet decide Lebenns’s request to extend discovery. Instead, it ordered both sides to submit short letters about outstanding documents and the timing of Lebenns’s damages-expert disclosure, and postponed its ruling.
Judge Jennifer E. Willis issued the October 5, 2023 order.
The detailed version
- Lebenns v. Frost Productions · No. 1:21-cv-11155
- Barbara Moses
- Oct. 5, 2023
Background
The court considered two requests to reconsider earlier discovery-related rulings. Defendants asked the court to reconsider its order allowing Andrew Lebenns to retain a forensic expert to examine Brendan McCarrick’s electronic devices. Lebenns asked the court to reconsider an earlier ruling closing discovery and to extend the discovery deadlines.
The opinion states that an earlier order said Lebenns could retain a forensic expert at his own expense because the record did not support sanctions. A later order stated that the only evidence of possible misconduct concerned McCarrick. Defendants argued that the court had mistakenly treated McCarrick as a defendant, even though he was not a party to the action and Defendants did not control his personal device. Lebenns said that referring to McCarrick as a defendant was an error in his submission and asked the court to maintain the earlier permission for a forensic examination.
Rulings on Reconsideration
The court granted Defendants’ request to reconsider. It concluded that, had it understood McCarrick’s role correctly, it would have reached a different result regarding inspection of his devices. Because McCarrick was not a party and the court had previously identified the only evidence of possible misconduct as concerning him, the court found that no forensic expert examination was warranted.
The court did not rule immediately on Lebenns’s request to reconsider the closing of discovery. The request cited the proposed forensic examination, allegedly outstanding documents, incomplete depositions, and Lebenns’s damages expert. The court stated that reversing its earlier forensic-examination ruling made further discussion of that issue unnecessary.
Further Briefing
The court directed Lebenns to file a letter of no more than three pages by October 11, 2023, identifying documents still allegedly outstanding concerning data underlying the Sales Credit Report. The letter was also to address the volume and location of those documents, to the extent known, and Lebenns’s response to Defendants’ allegation that he disclosed a damages expert too late under Federal Rule of Civil Procedure 26(a)(2). Defendants were directed to respond in a letter of no more than three pages by October 16, 2023, and were invited to discuss the burden involved. The court stayed its ruling on Lebenns’s reconsideration request pending that briefing.
Disposition
Defendants’ request to reconsider was granted. The court postponed its ruling on Lebenns’s request to reconsider the discovery deadline ruling pending further briefing; the opinion does not state a final disposition of that request.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.