“[I]f the conduct of a respondent to discovery necessitates a motion to compel, the requester of the discovery must protect himself by timely proceeding with the motion to compel. If he fails to do so, he acts at his own peril.”
How later courts described this case
- “[I]f the conduct of a respondent to discovery necessitates a motion to compel, the requester of the discovery must protect himself by timely proceeding with the motion to compel. If he fails to do so, he acts at his own peril.”
- “Here, Plaintiff timely propounded interrogatories and requests for production to Defendant on April 10, 2001. However, Plaintiff did not file his motion to compel until September 17, 2001. This length of delay is not acceptable.”
- plaintiff's conduct was “inexcusably dilatory” where it waited 9 months after receiving allegedly deficient responses to file its motion to compel
- “In numerous cases, courts have denied tardy discovery motions that were filed after the close of discovery, especially where the moving party had all the information it needed to timely file the discovery motion.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JOSEPH SAVOY CIVIL ACTION
VERSUS NO. 18-463-BAJ-SDJ
LT. COL. DOUGLAS
STROUGHTER, et al.
ORDER
Before the Court is Plaintiff’s Motion to Compel (R. Doc. 35), filed on February 17, 2020.
Defendants responded on March 9, 2020, by filing a Memorandum in Opposition. (R. Doc. 37).
Two months later, Plaintiff filed a Reply Memorandum (R. Doc. 53), addressing the
representations made by Defendants. For the reasons given below, Plaintiff’s Motion to Compel
(R. Doc. 35) is DENIED.
A. Background
In this lawsuit, Plaintiff claims he was attacked by 2 prison guards while incarcerated at
Dixon Correctional Institute on July 31, 2017. (R. Doc. 1). Based on deadlines proposed by the
parties, the Court entered a Scheduling Order on September 10, 2018, requiring the parties to
complete fact discovery and file any related motions by July 31, 2019. (R. Doc. 17).
Plaintiff propounded his first set of discovery requests, at issue here, on August 30, 2018.
(R. Doc. 35 at 1). On April 10, 2019, in its supplemental Response to Request for Production No.
21, Defendant produced the surveillance video of the July 31, 2017 incident, which was broken
into 9 clips. (R. Doc. 35 at 2). According to Plaintiff, the “video was immediately reviewed.” (R.
Doc. 35 at 2). Nonetheless, Plaintiff claims it was not until February 11, 2020, when his attorney
“began writing out the exact timeline of events on the video, [that] Plaintiff noticed there w[ere]
minutes missing from the end of two of the video clips.” (R. Doc. 35 at 2).1 On February 17, 2020
— over 6 months after the close of discovery and more than 10 months after the video was
produced — Plaintiff filed this Motion to Compel (R. Doc. 35), seeking production of “the entire
video.” (R. Doc. 35 at 3).
B. Plaintiff’s Motion to Compel is Untimely
Local Rule 26(d)(1) makes clear that: “Absent exceptional circumstances, no motions [to
compel] . . . shall be filed after the expiration of the discovery deadline, unless they are filed within
seven days after the discovery deadline and pertain to conduct during the final seven days of
discovery.” Here, the deadline for completing fact discovery expired on July 31, 2019. (R. Doc.
17). Plaintiff filed his Motion to Compel on February 17, 2020 — over 6 months after the close of
discovery. What’s more, the video at issue was produced on April 10, 2019 — more than 2 months
before the discovery deadline. The exception outlined in Local Rule 26(d)(1) therefore does not
apply, and Plaintiff must show that “exceptional circumstances” warrant his untimely filing.
Critically, Plaintiff’s Motion fails to even acknowledge its untimeliness.
Without addressing the issue, Plaintiff has made no effort to show “exceptional
circumstances,” and his Motion to Compel must be denied as untimely. See Bryant v. State Farm
Mut. Auto. Ins. Co., 2018 WL 3869981, at *1 (M.D. La. Aug. 14, 2018) (denying untimely filed
motion to compel an independent medical examination and holding: “Having found no exceptional
circumstances to order an untimely Rule 35 examination based on the assertions in the instant
motion, the Court will deny the instant motion as untimely.”); Rollins v. St. Jude Med., Inc., 2010
1 “Specifically, video [clip] #5 ends at 32:59 then video [clip] #6 starts at 33:20, there is 21 seconds of missing video.
Then, video [clip] #6 ends at 34:38 and video [clip] #7 starts at 35:57, there is over a minute of missing video.” (R.
Doc. 35 at 2).
WL 1751822, at *3 (W.D. La. Apr. 28, 2010) (motion to compel struck as untimely, in part,
because plaintiff did not “provide the court with an explanation for the delay in her memorandum
in support of her own motion to compel”); Days Inn Worldwide, Inc. v. Sonia Investments, 237
F.R.D. 395, 396-99 (N.D. Tex. 2006) (motion to compel was untimely filed two weeks after the
discovery deadline; motion should have been filed within discovery deadline); Wells v. Sears
Roebuck and Co., 203 F.R.D. 240, 241 (S.D. Miss. 2001) (“[I]f the conduct of a respondent to
discovery necessitates a motion to compel, the requester of the discovery must protect himself by
timely proceeding with the motion to compel. If he fails to do so, he acts at his own peril.”).
While Plaintiff makes no effort to show exceptional circumstances, he does claim that his
attorney only noticed the missing portions of the video on February 11, 2020 — just 6 days before
his February 17, 2020 Motion to Compel. But even if Plaintiff had pointed to his lawyer’s February
11, 2020 realization to establish exceptional circumstances, the Court would still find his Motion
untimely. Rather than excuse Plaintiff’s untimeliness, his lawyer’s late realization simply
demonstrates a lack of diligence in discovery.
Plaintiff received the video on April 10, 2019. (R. Doc. 35 at 2). And while Plaintiff claims
the “video was immediately reviewed,” a thorough review was clearly not conducted until his
attorney began making a timeline of the video on February 11, 2020 — 10 months after it was
produced and 6 months after the close of discovery. (R. Doc. 35 at 2).
Plaintiff’s failure to sufficiently review the video for 10 months precludes any finding of
“exceptional circumstances” that might warrant consideration of his untimely Motion.2 See Ginett
2 It is worth noting that on July 23, 2019, Plaintiff timely filed a Motion to Compel in connection with Defendants’
responses to his 4 sets of written discovery requests. (R. Doc. 22). The video at issue here was produced in response
to Plaintiff’s first set of discovery requests. Plaintiff states that his attorney reviewed the video in April of 2019. He
therefore had an opportunity to request its complete production in his July 23, 2019 Motion to Compel (R. Doc. 22).
See Ginett v. Fed. Express Corp., 166 F.3d 1213, at *5 (6th Cir. 1998) (“[B]ecause Ginett was aware of the Summary
in March 1996 and therefore had an opportunity to move to compel its production in his [previous] motion of October
18, 1996, we cannot conclude that he was prejudiced by the district court's denial of his untimely request.”).
v. Federal Express Corp., 166 F.3d 1213, at *5 (6th Cir. 1998) (district court properly denied
motion to compel filed two months after the discovery deadline where plaintiff knew of the
document at issue 7 months before the discovery deadline); Tim W. Koerner & Associates, Inc. v.
Aspen Labs, Inc., 492 F. Supp. 294, 297-98 (S.D. Tex. 1980) (plaintiff's conduct was “inexcusably
dilatory” where it waited 9 months after receiving allegedly deficient responses to file its motion
to compel); Days Inn Worldwide, Inc. v. Sonia Investments, 237 F.R.D. 395, 399 (N.D. Tex. 2006)
(denying motion to compel filed 2 weeks after discovery deadline and where documents at issue
were produced 9 months before the motion to compel); Wells v. Sears Roebuck & Co., 203 F.R.D.
240, 241 (S.D. Miss. 2001) (“Here, Plaintiff timely propounded interrogatories and requests for
production to Defendant on April 10, 2001. However, Plaintiff did not file his motion to compel
until September 17, 2001. This length of delay is not acceptable.”); Mash Enterprises, Inc. v.
Prolease Atlantic Corp., 2003 WL 251944, at *3 (E.D. Pa. Jan. 31, 2003) (denying plaintiff’s
untimely motion to compel filed “approximately two months after the close of discovery and
nearly six months after receiving Defendants' responsive production” where the “only explanation
offered by Plaintiffs' counsel” was that he “inadvertently overlooked” the production).
Because Plaintiff’s failure to thoroughly review the video is the only thing that prevented
the timely filing of his Motion to Compel, there are no ‘exceptional circumstances’ justifying
Plaintiff’s late filing and it must be denied. See Suntrust Bank v. Blue Water Fiber, L.P., 210 F.R.D.
196, 200-01 (E.D. Mich. 2002) (“In numerous cases, courts have denied tardy discovery motions
that were filed after the close of discovery, especially where the moving party had all the
information it needed to timely file the discovery motion.”).
C. The Court Cannot Compel Discovery that Does Not Exist
Even if Plaintiff had timely moved to compel the complete video, his Motion would still
be denied. Defendants have made clear that they have produced all of the video footage recorded
by the camera system at Dixon Correctional Institute on July 31, 2017.3 Put simply, “No additional
video footage exists.” (R. Doc. 37 at 4). They have likewise sufficiently explained the gaps in the
video, and nothing in the record sheds doubt on that explanation. (R. Doc. 37 at 3); (R. Doc. 53 at
3).
While the Court understands Plaintiff's frustration, “it cannot compel Defendant[s] to
produce [video surveillance] that do[es] not exist.” Butler v. La. Dep't of Pub. Safety & Corr., 2014
WL 3867552, at *1 (M.D. La. Aug. 6, 2014); see also Payne v. Forest River, Inc., 2015 WL
1912851, at *4 (M.D. La. Apr. 22, 2015) (“The court cannot order the production of documents
that no longer exist or, despite a diligent search, cannot be found in the possession, custody, or
control of a party.”); Callais v. United Rentals N. Am., Inc., 2018 WL 6517446, at *7 (M.D. La.
Dec. 11, 2018) (“Should there be any video recordings, they could be relevant and discoverable,
but the Court cannot order the production of something the producing party suggests does not
exist.”); Terral v. Ducote, 2016 WL 5017328, at *2 (W.D. La. Sept. 19, 2016) (“The court cannot
order respondents to produce [surveillance footage from within the prison] that does not exist.”).
Under these circumstances, courts often find the requesting party is entitled to
“confirm[ation]” that the discovery at issue does not exist. Nguyen v. Louisiana State Bd. of
Cosmetology, 2016 WL 67253, at *2 (M.D. La. Jan. 5, 2016) (court would require plaintiff to
3 In their Opposition, Defendants “acknowledge that . . . there are some portions of the July 31, 2017 video” that are
missing, based on the video’s time stamp. (R. Doc. 37 at 3). However, they provide 2 affidavits from prison
personnel explaining that the prison’s recording system was motion-activated, which sometimes caused the video to
skip or jump. (R. Doc. 37 at 3). The missing portions therefore resulted from the recording system, and not “anyone
tampering” with the video. (R. Doc. 37 at 3). The affiants also confirm that the recording system separated the video
into 9 clips when it was downloaded and that “whatever [was] downloaded is what the camera recorded.” (R. Doc.
37 at 2). In other words, there is nothing more to produce.
“confirm that the requested information does not exist”); see also Callais, 2018 WL 6517446, at
*7 (M.D. La. Dec. 11, 2018) (“To satisfy Plaintiff and provide a foundation should any responsive
video recordings later be found to exist, the Court will order a qualified representative of United
Rentals to provide a sworn certification . . . that no responsive video recordings exist.”); Brookshire
v. Jackson Pub. Sch., 2015 WL 11018443, at *1 (S.D. Miss. May 8, 2015) (“If the document does
not exist, then Defendants are to certify that the document does not exist.”); Beasley v. First
American Real Estate Information Services, Inc., 2005 WL 1017818, at *4 (N.D. Tex. Apr. 27,
2005) (“[D]efendant is entitled to an unequivocal representation . . . that the documents specified
in this request . . . do not exist. . . . [D]efendant will be granted leave to propound an appropriate
interrogatory which must be answered by plaintiff under oath.”).
Here, Defendants have already met this obligation. In response to Plaintiff’s Motion,
Defendants submitted sworn affidavits confirming that the surveillance video was produced in full;
it was not “altered in any way”; and prison personnel “did not delete [or] . . . remove any footage.”
(Tate Aff., R. Doc. 37-2 at 3).
Because Defendants have confirmed that nothing more exists to produce, the Court would
deny Plaintiff’s Motion to Compel even if it were timely. See Kipp v. Laubach, 2019 WL 3219801,
at *2 (N.D. Tex. July 17, 2019) (Defendant’s “sworn declaration” stating that it “does not have
responsive documents” was sufficient confirmation); Evans v. Toyota Motor Corp., 2005 WL
8167144, at *1 (S.D. Tex. Feb. 4, 2005) (“[B]ecause Defendants have represented . . . that the
documents do not exist, and have provided their explanation as to why, in a written response to a
motion signed and submitted to the Court, the Court does not see the additional necessity of
requiring . . . an affidavit restating their position.”).
D. Conclusion
For the reasons given above, Plaintiff’s Motion to Compel (R. Doc. 35) “the entire video”
of the July 31, 2017 incident is DENIED.
Signed in Baton Rouge, Louisiana, on July 15, 2020.
S
SCOTT D. JOHNSON
UNITED STATES MAGISTRATE JUDGE