Waiting To Bring Motion To Compel After Fact Discovery Ends Carries Risk

In a case involving the disputed safety of a medical device in the U.S District Court for the Eastern District of North Carolina, the parties encountered multiple discovery disputes.  Following the close of the discovery period, the plaintiff filed a motion to compel asking the court, among other things, to order the defendant medical device manufacturer to provide an index for documents it produced in discovery indicating by Bates Number the documents responsive to each particular request.  The court concluded that the motion to compel was untimely.

Here, fact discovery ended on December 16, 2014 and the plaintiff brought the motion to compel three days later.  The plaintiff, however, served her first set of discovery requests in March 2014 and the defendant manufacturer had responded in April by producing documents as they were maintained in the usual course of business.  The defendant manufacturer explained where the documents had been maintained, who maintained them, and specified the custodian from which the documents arose.  In May, the parties exchanged letters articulating disagreements about the comprehensiveness and details of the defendant’s responses.  Defendant’s counsel stated in May, “we will not provide a comprehensive document index, which you requested only after we made our first document production.”

The court reasoned that the issues raised in the plaintiff’s motion to compel were ripe as early as May and it was evident soon thereafter that the defendant would not change its position with respect to the requested index.  “Yet, Plaintiff did not bring the motion to compel for nearly six months, while Defendants continued to produce nearly 500,000 pages in the same manner.”  The court concluded, “Now with fact discovery completed, it would be unreasonable to require Defendants to go back and index nearly 500,000 pages and to find their privileges waived when these issues could have been addressed early on in discovery.”