United States District Court, D. Maine
DAVID J. WIDI, JR., Plaintiff,
PAUL MCNEIL, ET AL., Defendants.
ORDER ON MOTION FOR DISCOVERY
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
Court denies plaintiff's motion to compel discovery
because the plaintiff has failed to present a plausible basis
for believing that additional facts exist and can readily be
retrieved together with an explanation of how those facts
will defeat 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)
(First Disc. Order). 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). On July 10, 2017,
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) (Mot. to Compel). 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.
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).
October 13, 2017, the Court issued an order deferring a final
ruling on Mr. Widi's motion to compel discovery until the
parties conferred about discovery and reported back to the
Court. First Disc. Order at 12. 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
to 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).
November 15, 2017, the Court issued an order, again deferring
action on Mr. Widi's motion to compel discovery, but
denying his motion for reconsideration. Order on Mot. for
Disc. and Mot. for Recons. of Disc. Order (ECF No. 528)
(Second Disc. Order). In response, Agents Hickey and
Grasso replied to Mr. Widi's report of the Local Rule
26(b) conference on November 15, 2017. Stephen E. Hickey
and Michael Grasso's Resp. to Pl.'s Report of Local
Rule 26(b) Conf. (ECF No. 529) (Defs.' Disc.
THE PARTIES' POSITIONS
The Defendants' Local Rule 26(b) Report
their initial 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 asked Mr. Widi what documents he
already possessed. Defs.' Report at 2. After
some delay, Mr. Widi told 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. at 3.
David Widi's Local Rule 26(b) Report
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. Pl.'s Report 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