Widi v. McNeil

          ORDER ON MOTION FOR DISCOVERY AND MOTION FOR RECONSIDERATION OF DISCOVERY ORDER

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         The 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.

         I. BACKGROUND

         On 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. 488).

         On July 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).

         On 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.

         On 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).

         II. DISCUSSION

         A. Motion to Compel Discovery

         In 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.

         In his 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).

         Mr. 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.

         Mr. 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. Id.

         B. Motion for ...