United States District Court, D. Maine
DAVID J. WIDI, JR., Plaintiff,
PAUL MCNEIL, et al., Defendants.
ORDER ON MOTION FOR DISCOVERY AND MOTION FOR
RECONSIDERATION OF DISCOVERY ORDER
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
Court defers ruling on a plaintiff's motion to compel
discovery in order to give the defendants an opportunity to
respond to the issues raised in his motion. The Court denies
the plaintiff's separately-filed motion for
reconsideration of the discovery order because the plaintiff
is entitled to only limited discovery under Federal Rule of
Civil Procedure 56(d) in response to the defendants'
filing of a motion for summary judgment.
October 13, 2017, the Court issued an order on discovery
motions, deferring final ruling on the motion until the
parties conferred pursuant to Local Rule 26(b) and reported
to the Court. Order on Disc. Mot. (ECF No. 510). The
genesis of this motion is a motion for summary judgment that
Agents Hickey and Grasso filed on April 18, 2017. Stephen
E. Hickey and Michael Grasso's Mot. for Summ. J. on Count
VII of the Second Am. Compl. (ECF No. 428). In response,
after getting an extension of time within which to respond to
the motion, Mr. Widi requested that Agents Hickey and Grasso
respond to a pending discovery request before he responded to
the pending motion. Second Mot. to Enlarge Time to File
Opp'n to Defs. Hickey and Grasso's Mot. for Summ. J.
on Count VII (ECF No. 457). The Agents objected to
responding to discovery until Mr. Widi complied with Federal
Rule of Civil Procedure 56(d). Stephen E. Hickey and
Michael Grasso's Status Report Regarding Pl.'s
Purported Disc. Reqs. (ECF No. 461). Mr. Widi filed a
motion to compel discovery to which he attached a discovery
request for an extensive list of documents and other
information. Mot. to Compel Disc. (ECF No. 462).
Agents Hickey and Grasso objected to Mr. Widi's discovery
request. Stephen E. Hickey and Michael Grasso's
Opp'n to Pl.'s Mot. to Compel Disc. (ECF No.
464). On September 5, 2017, Mr. Widi replied to the
Agents' response. Reply to Hickey and Grasso's
Opp'n to Pl.'s Mot. to Compel Disc. (ECF No.
28, 2017, Mr. Widi responded to the Agents' motion for
summary judgment and on August 7, 2017, the Agents replied to
Mr. Widi's response to their motion for summary judgment.
Opp'n to Hickey and Grasso's Mot. for Summ. J. on
Count VII of the Second Am. Compl. (ECF No. 473);
Stephen E. Hickey and Michael Grasso's Reply Br. in
Support of Their Mot. for Summ. J. on Count VII of the Second
Am. Compl. (ECF No. 479).
October 13, 2017, the Court issued an order, deferring a
final ruling on Mr. Widi's motion to compel discovery
until the parties had conferred about discovery and reported
back to the Court. Order on Disc. Mot. at 12 (ECF
No. 510). On October 18, 2017, the Agents' counsel filed
a joint motion to extend the time to file a report to the
Court for one week. Jt. Mot. for a One-Week Extension of
the Deadline for Submitting a Report of Local Rule 26(b)
Conf. (ECF No. 514). Mr. Widi contacted the Clerk's
Office and objected to the joint nature of the motion,
leading the Court to issue yet another order, noting that
“the upshot is that Mr. Widi agreed to the filing of a
joint motion, and, once filed, decided to oppose it.”
Order on Jt. Mot. to Extend (ECF No. 515). On
October 26, 2017, the Court reset the due date at November 3,
2017 for the report of counsel regarding the Local Rule 26(b)
conference. Id. at 3.
November 3, 2017, Agents Hickey and Grasso complied with the
Court's order and filed a report of the Local Rule 26(b)
conference. Defs.' Report of Local Rule 26(b)
Conf. (ECF No. 519) (Defs.' Report). Mr.
Widi did not comply in a timely fashion. Instead, after being
granted an extension of time, Mr. Widi prepared and filed a
motion for reconsideration of the discovery order. Mot.
for Recons. of Order on Disc. Mot. (ECF # 510) (ECF No.
518) (Mot. for Recons.). Finally, on November 5,
2017, Mr. Widi filed his report of the Local Rule 26(b)
conference. Pl.'s Report of Local Rule 26(b)
Conf. (ECF No. 521) (Pl.'s Report).
Motion to Compel Discovery
their report of the results of the Local Rule 26(b)
conference, Agents Hickey and Grasso noted that they assumed
Mr. Widi had already been provided with documentation during
his criminal case and they inquired of Mr. Widi what
documents he already possessed. Defs.' Report at
2. After some delay, Mr. Widi asked them to assume he had no
documents. Id. Counsel for Agents Hickey and Grasso
produced two hundred and ten pages of documents to Mr. Widi
on November 3, 2017. Id.
late-filed report, Mr. Widi complains that the Defendants
“have not disclosed anything other than what was
already provided to Mr. Widi during his criminal case.”
Pl.'s Report at 2. He asserts that the existence
of other relevant reports that had been produced by ATF was
discussed during the FOIA litigation. Id. (citing
ECF No. 370:2). Mr. Widi also objects to the Defendants'
claim that they “do not have” any other
documents. Id. In his view, he is entitled to
documents from others if the Agents were “in
privity” with other people or institutions who possess
the documents. Id. He urges the Court to revisit its
January 10, 2017 order in which it dismissed without
prejudice a series of subpoenas that Mr. Widi moved to have
issued against a number of third parties, including the town
of Eliot. Id. at 2; see Mot. for Issuance of
Subpoena (ECF No. 362); Order on Mot. for
Recons. at 31 (ECF No. 392).
Widi disputes the Agents' assertion that they did not
author any reports because he contends ATF regulations
require agents to file reports of any criminal
investigations. Id. at 3. Mr. Widi contends that the
photo log submitted by the Defendants in this case differs
from the photo log generated during the search. Id.
(citing ECF No. 429-5:11 and ECF No. 473-4). Mr. Widi says
that one of the photographs taken during the search shows a
photo log with entirely different entries than the one now
proffered by the defendants and accuses the Agents of making
“patently false” representations. Id.
Widi maintains that the Agents have not attempted to resolve
the discovery issues in good faith and argues that this Court
should grant the motion to compel discovery and any further
relief deemed just including the issuance of third party
subpoenas against the town of Eliot and the United States.
Motion for ...