Beller v. Credit Alliance Corp.

106 F.R.D. 557, 1985 U.S. Dist. LEXIS 17989
CourtDistrict Court, N.D. Georgia
DecidedJuly 11, 1985
DocketCiv. No. C84-553
StatusPublished
Cited by5 cases

This text of 106 F.R.D. 557 (Beller v. Credit Alliance Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beller v. Credit Alliance Corp., 106 F.R.D. 557, 1985 U.S. Dist. LEXIS 17989 (N.D. Ga. 1985).

Opinion

ORDER

ORINDA D. EVANS, District Judge.

This case is before the court on Defendants’ motion to compel and on Plaintiff’s motion to permit late filing of a motion to compel.

This action arose out of a series of transactions among the parties, through which Defendant Credit Alliance and Leasing Service provided financing for a restaurant opened by Plaintiff Beller in early 1981. The relationship between borrower and lender has soured, and Beller now brings this action alleging RICO violations, fraud and breach of contract on the part of Defendants. Beller also seeks to recover certain auction proceeds now held in escrow. Leasing Service has filed a counterclaim against Beller for recovery on a lease of certain restaurant equipment.

Defendants’ Motion to Compel

Defendants maintain that Plaintiff has failed to provide full, complete and proper responses to their interrogatories and requests for production of documents, and should be compelled to do so by the court.' The court agrees with respect to certain of Defendants’ discovery requests, and therefore will grant Defendants’ motion as to First Interrogatories Nos. 3, 8, 11, 12 and 19, and First Document Requests Nos. 8 and 14. Defendants’ motion to compel will be denied as to First Document Request No. 3 and Second Interrogatory No. 7.

As to First Document Request No. 3, the court finds that Plaintiff need not provide the statements or reports themselves. However, Plaintiff must provide the information about such reports which Defendants seek in First Interrogatory No. 3. As to Second Interrogatory No. 7, the court [559]*559finds that Plaintiff has provided an adequate response. Furthermore, the interrogatory apparently seeks information about a hypothetical claim which Plaintiff has not asserted in this case.

As to First Document Request No. 14, the court finds that Plaintiffs tax returns for the years sought are relevant to this action and must be disclosed. Plaintiff has put his own financial condition at issue in this case by claiming that Defendants caused financial hardship for him and for the restaurant by insisting on certain modifications of the financing terms. These changes included an additional $200,000 encumbrance on his Windy Hill property. Plaintiffs financial condition during that time is therefore relevant to Plaintiffs claims.

As to tax returns, this court has stated that “most courts do not recognize the existence of privilege against disclosure, but rather recognize a general federal policy limiting disclosure to appropriate circumstances.” Eglin Federal Credit Union v. Cantor, Fitzgerald Securities Corp., 91 F.R.D. 414, 416 (N.D.Ga.1981). The court finds this to be an appropriate circumstance. Defendants have not requested Plaintiffs current returns, but seek only his returns for the relevant years 1980, 1981, and 1982. Defendants are entitled to discovery of these returns.

In granting Defendants’ motion to compel, the court recognizes that Plaintiff may have supplied additional information in response to some of these requests since Defendants’ motion to compel was filed. Where such is the case, Plaintiff is expected to fully supplement any responses he has already made. Both parties are hereby cautioned that discovery motions are not to be used as a tactical device whereby the parties attempt to give up as little information as possible until compelled to do so. Discovery under the Federal Rules is intended to be open and complete, absent a legitimate claim of burdensomeness or privilege.

Plaintiff’s Motion to Permit Late Filing of Motion to Compel

After several extensions by the court, the time for discovery in this matter expired on December 31, 1984. No motion to compel was filed by Plaintiff on or before that date. On January 31, 1985, Plaintiff filed a motion seeking leave of the court to file a motion to compel. Defendants oppose the late filing on the grounds that Plaintiff’s motion to compel, as well as much of the discovery sought, is untimely.

The local rules of this court provide that no motions to compel discovery may be filed after the close of discovery, “unless otherwise ordered by the Court.” LR 225-4(d), NDGa. It is therefore clearly within the powers of this court to allow Plaintiff’s motion to be filed and considered.

Plaintiff has given several reasons for not filing his motion to compel before discovery closed. First, Plaintiff maintains that he believed in good faith that the requested material would be provided. Second, Plaintiff contends that he was in a “catch-22” situation with regard to discovery requests that he filed on December 14, 1984. Since the Federal Rules of Civil Procedure allow thirty days to respond to interrogatories and document requests,1 Plaintiff asserts that a motion to compel on December 31 would arguably have been premature as to the December 14 discovery, even though the local rules required that such a motion be filed by that day.

Defendants argue that no “eatch-22” existed, because Plaintiff’s December 14 discovery requests were simply untimely. Defendants maintain that Plaintiff should have filed all discovery requests by December 1, which would have allowed Defendants a full thirty days to respond within the discovery period. In support, Defendants cite Local Rule 225-l(a), which states:

All discovery proceedings shall be initiated promptly so that discovery may be initiated and completed within four [560]*560months after the last answer is filed____
Answers and responses to initiated discovery are required to be served within this four-months period.

LR 225-l(a), NDGa. (emphasis added). The final sentence of subpart (a) was also set out in the Court's pretrial instructions to the parties. Defendants therefore contend that they should not be compelled to respond to these untimely discovery requests.

In response, Plaintiff argues that the above-cited rule and the court’s pretrial instructions acted to restrict Defendants’ response time, rather than to limit the time in which he could file discovery requests. Plaintiff emphasizes the final sentence of Rule 225-l(a), which requires that all answers be served within the discovery period. Plaintiff therefore maintains that Defendant should have responded to all discovery by December 31, including Plaintiff’s December 14 requests.

The court does not agree. The local rules of this court supplement the Federal Rules of Civil Procedure, and are to be construed so as to be consistent with the Federal Rules. LR 100-3, NDGa. The local discovery provisions at issue here must therefore be interpreted so as to preserve the Federal Rules’ thirty day response time, and Plaintiff’s argument to the contrary must be rejected.2

Furthermore, the local rules themselves do not suggest an intent to limit response time. Instead, the language of the rules emphasizes the duty of the party seeking discovery to insure that discovery is completed in a timely manner: “All discovery proceedings shall be initiated promptly so that discovery may be initiated and completed within four months____” LR 225-1(a), NDGa. (emphasis added).

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Cite This Page — Counsel Stack

Bluebook (online)
106 F.R.D. 557, 1985 U.S. Dist. LEXIS 17989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beller-v-credit-alliance-corp-gand-1985.