Plaintiffs Raised This Issue With the Court Too Late.
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October 8, 2024Sometimes, timing is everything. In Kadrey v. Meta Platforms, Inc., 2024 WL 4362744 (N.D. Cal. Oct. 1, 2024), it was dispositive.
“Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.” Another Cinderella Situation –Motion Denied as Untimely? (May 31, 2024), quoting Tom Donlon, Silly Lawyer Tricks XXX (americanbar.org)(Mar. 14, 2023); Better Late Than Never? Case Dismissed for Filing 16 Minutes After Midnight (Mar. 17, 2023); When Must a Motion to Compel Be Filed? (Sep. 6, 2024); When Must a Motion to Compel Be Filed? (Aug. 26, 2024); Another Spoliation Motion Denied as Untimely (Mar. 14, 2024).
In Kadrey, the plaintiffs asked the court to order the addition of five document custodians. Fact discovery closed a day before the court’s opinion; however, it had been extended for 14 days “for the purpose of taking depositions that couldn’t be scheduled before the discovery cut-off.” Id. at *1.
Noting that a motion to modify the schedule was pending, the court wrote:
The stipulated ESI Order… states: “If, after the Parties identify Document Custodians, a requesting Party believes that additional Document Custodians should be added, then the requesting Party shall advise the producing Party in writing of the proposed additional Document Custodians and the basis for the request. If the Parties have not agreed whether to add the Document Custodian within 30 days of the requesting Party’s request, then the matter may be brought to the Court in accordance with the procedures required by Magistrate Judge Hixson.”
Plaintiffs’ made their proposal to Meta on August 23rd, prior to the September 30th milestone cutting off discovery. They raised the issue with the court five days before the close of fact discovery. Id. at *1.
The request was deemed untimely:
Plaintiffs raised this issue with the Court too late. Identifying document custodians is supposed to be one of the first things litigants do in discovery, not one of the last. While the ESI Order does contemplate the potential addition of other document custodians, it does not relieve the parties of the obligation to act diligently and at least attempt to complete fact discovery by the fact discovery cutoff.
Noting that it had the power to grant the request, the court wrote: “But eleventh hour motions to compel should be for wrap-up items, not for major changes to the scope of discovery. Adding five document custodians is a big change, not a small change, to the scope of Meta’s document production obligations in this case. The document productions for these new proposed custodians would also likely all take place after depositions had concluded, which is not a logical way of structuring discovery.” Id.
There was an additional reason to deny the request: “Plaintiffs’ section of the letter brief is silent about when they received the documents that led them to conclude they want these custodians’ documents. The Court is skeptical that Plaintiffs had no reason to think they wanted Zuckerberg’s documents before August 2024, in particular because they keep citing an April 6, 2024 New York Times article… as evidence of his personal knowledge of and involvement in Meta’s AI initiatives.” Id. at *2.
“The Court accordingly DENIES Plaintiffs’ request for additional custodians on the ground that it is untimely and incompatible with the existing case schedule. As noted above, Plaintiffs have a pending motion to extend the case schedule. If the fact discovery cutoff changes in a meaningful way, the Court will sua sponte revisit the issue of adding these proposed custodians.” Id. at *2.
For additional analysis of the issue, see generally Is a Court-Ordered ESI Protocol a Trap? (Sep. 14, 2024).
The Kadrey court also ordered Meta to produce additional documents: “Meta is not supposed to produce documents that are cut-off and illegible…. The Court ORDERS Meta to reproduce documents that have been incorrectly imaged.”
Additionally, it addressed the question of how many hours of deposition time were permitted when a single witness was identified under both Fed.R.Civ.P. 30(b)(1) [fact witness] and (b)(6) [corporate designee].
