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Blackard v. Hercules, Inc.

United States District Court, S.D. Mississippi, Eastern Division

June 4, 2014

MARY FRANCES BLACKARD, ET AL., Plaintiffs,
v.
HERCULES, INC., ET AL., Defendants.

ORDER

MICHAEL T. PARKER, Magistrate Judge.

THIS MATTER is before the Court on Plaintiffs' Motion to Compel [321] and Defendants' Motion to Strike [335]. Having considered the submissions of the parties, the Court finds that Plaintiffs' Motion to Compel [321] should be granted in part and denied in part and that Defendants' Motion to Strike [335] should be denied.

BACKGROUND

On April 18, 2014, Plaintiffs filed their Motion to Compel seeking an order from this Court compelling the production of documents found in two separate privilege logs: Defendants' privilege log and the ARCADIS privilege log. Plaintiffs' memorandum brief [322] and amended memorandum brief [323] exceeded the page limit set forth in Local Rule 7(b)(5). Plaintiffs did not seek leave to file excess pages. Accordingly, on April 24, 2014, the Court enter an Order requiring Plaintiffs to show cause why their briefs should not be stricken. (Order [328].) On April 29, 2014, Plaintiffs filed their response to the Court's Order. (Response [329].)

Defendants did not respond to Plaintiffs' Motion to Compel. Instead, Defendants filed a Motion to Strike the Motion to Compel, arguing that the Motion to Compel is untimely under Local Rule 7(b)(2)(B) and exceeds the page limit set forth in Local Rule 7(b)(5). Plaintiffs responded, arguing that the circumstances of this case justify the timing of their Motion and the length of their briefs. (Response [370].)

ANALYSIS

Excessive Pages

As set forth in the Court's Order to Show Cause [328], Plaintiffs' briefs exceeding the Local Rule's page limitation. Plaintiffs' justification for the length of their briefs is that they chose to address both Defendants' privilege log and the ARCADIS privilege log in the same motion because the two privilege logs involve similar alleged deficiencies that are largely governed by a singular body of law. The Court reminds Plaintiffs that a request for leave of Court to exceed the Local Rule's page limitation should be filed and granted by the Court before a party submits a document that exceeds the page limitation. The Court, however, will not strike Plaintiffs' motion or briefs based on the circumstances presented.

Defendants' Privilege Log

On September 13, 2013, Defendants served their privilege log in response to Plaintiffs' discovery requests. (Motion [321] Ex. C.) On October 25, 2013, Defendants served their first amended privilege log. (Motion [321] Ex. D.) Plaintiffs first raised concerns regarding the privilege log in a letter dated January 10, 2014. (Motion [321] Ex. J.) On February 13 and February 26, 2014, Plaintiffs contacted Defendants regarding the privilege log and their concerns. (Motion [321] Exs. L & M.) On February 26, 2014, Defendants responded with a letter and a third amended privilege log. (Motion [321] Exs. F & M.) On March 11, 2014, the parties corresponded regarding the privilege log and Plaintiffs' intention to file a motion to compel. (Response [370] Ex. B.) In a letter dated March 12, 2014, Plaintiffs again raised concerns regarding the privilege log. (Motion [321] Ex. O.) On March 19, 2014, Defendants responded with a letter and a sixth amended privilege log.[1] (Motion [321] Ex. I; Motion [335] Ex. D.) On April 18, 2014, Plaintiffs filed their Motion to Compel.

Plaintiffs' Motion to Compel was filed 21 days after the discovery deadline. The Case Management Order originally set October 1, 2013, as the discovery deadline. (Order [22].) On September 6, 2013, the Court granted Plaintiff's request to reset the case deadlines and set a discovery deadline of March 3, 2014. (Order [172].) On February 13, 2014, the Court again granted Plaintiff's request to reset certain case deadlines. (Text Order dated February 13, 2014.) The Court set March 28, 2014, as the discovery deadline. Id.

"A party must file a discovery motion sufficiently in advance of the discovery deadline to allow response to the motion, ruling by the court and time to effectuate the court's order before the discovery deadline." L.U. Civ. R. 7(b)(2)(B). Plaintiffs assert that the timing of their Motion to Compel was the result of good faith efforts to resolve the parties disputes without the Court's involvement. Indeed, it is apparent from the record that the parties, starting on January 10, 2014, were engaged in efforts to resolve their disputes regarding Defendants' privilege log and that Defendants urged further discussions without the Court's involvement.

However, the parties also have a duty to timely follow-up on discovery requests and timely move to compel when necessary. This Court has previously explained,

Obviously, problems can arise and the Court should be reasonable in working with the attorneys where necessary. However, if 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. He must not expect the Court to extend discovery and/or the ...

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