Calvert v. Reinisch

218 F.R.D. 497, 2003 U.S. Dist. LEXIS 24282, 2003 WL 22708135
CourtDistrict Court, W.D. Texas
DecidedApril 21, 2003
DocketNo. CIV.SA-03-CA-68-FB
StatusPublished
Cited by2 cases

This text of 218 F.R.D. 497 (Calvert v. Reinisch) is published on Counsel Stack Legal Research, covering District Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Calvert v. Reinisch, 218 F.R.D. 497, 2003 U.S. Dist. LEXIS 24282, 2003 WL 22708135 (W.D. Tex. 2003).

Opinion

ORDER

MATHY, United States Magistrate Judge.

Came on this day to be considered plaintiffs “motion to compel third party Southwest Research Institute (‘SWRI’) to allow copying of documents already produced by SWRI for inspection” filed April 7, 2003 (docket no. 5), referred to the undersigned on April 14, 2003 (docket no. 6), as well as Southwest Research Institute’s response filed April 17, 2003 (docket no. 7).

Procedural Background

This miscellaneous civil case initially was opened in this Court on January 30, 2003, when plaintiff and each defendant jointly moved the District Court to enter a protective Order. On February 4, 2003, the District Court entered an agreed protective Order. On March 10, 2003 and April 2, 2003, certain sealed advisements pursuant to the protective Order were filed.

No further action was undertaken in this Court until April 7, 2003, when plaintiff filed a motion to compel SwRI to allow the copying of certain documents, inspected by counsel for plaintiff by permission of SwRI, but, thereafter, refused to be made available for copying for plaintiff. On April 14, 2003, the motion was referred to the undersigned. On April 17, 2003, SwRI filed its response to the motion.

Based upon information proffered and submitted by plaintiff and SwRI in connection with the instant discovery dispute, it is represented that plaintiff sued defendants Bodo W. Reinisch (“Reinisch”), who is affiliated with the University of Massachusetts, and James L. Burch (“Burch”), who is affiliated with SwRI. The pending lawsuit was filed in the United States District Court for the District of Massachusetts on or about February 21, 2002.1 Generally, the lawsuit concerns an alleged oral contract among plaintiff, [499]*499Reinisch and Burch to jointly work on the IMAGE research project. Plaintiff complaint alleges three causes of action: breach of contract, relating to the breach of a general partnership agreement; breach of contract; and for attorney’s fee. The complaint alleges that there is a written contraet(s) between the National Aeronautics and Space Administration (“NASA”) and SwRI regarding the IMAGE research project as well as written subcontracts between SwRI and others, such as the University of Massachusetts and the University of Iowa. Plaintiff alleges that, although the subcontracts were between SwRI and institutions, it was “anticipated” and was the “customs and practices of the scientific community concerning contracts, particularly NASA contracts” that the individual scientist, such as plaintiff, “can take [the subcontract] with him to another institution and he can take millions of dollars in work with him.”2 Nevertheless, plaintiff alleges that — after plaintiff left the University of Iowa, after plaintiff apparently agreed to an employment agreement with the University of Massachusetts so that funding could be directed through the University of Massachusetts to plaintiff, and after plaintiff and Reinisch orally agreed to a consulting agreement — in 1998, defendants Reinisch and Burch “acted in consort and excluded plaintiff from participating in and receiving funds from the project from 1998 and thereafter.”3 Plaintiff alleges that the effect of defendants’ action was “to deprive plaintiff or participating in the mission for the remaining five years, for which he would have been paid over $400,000 from the NASA award.” 4

On July 11, 2002, the District Court in the District of Massachusetts has entered into a scheduling Order which established a discovery deadline of January 31, 2003 and a dis-positive motion deadline of July 1, 2003.5 The Order states that “any requests for extension will be granted only for good cause shown supported by affidavits, other evident tiary material, or reference to pertinent portions f the record.”6

On or about January 15, 2003, plaintiff served non-party SwRI with a Fed.R.Civ.P. 45 subpoena duces tecum and notice of intent to depose a corporate representative of SwRI on January 28, 2003.7 On January 28, 2003, counsel for SwRI served objections to certain of the subpoena requests.8 SwRI’s January 28, 2003 objections included a general objection to producing information not relevant to a claim or defense or reasonably calculated to lead to the discovery of admissible evidence, privileged information, and information which is an expert opinion.9 SwRI also generally objected to the lack of sufficient time — between January 15 and January 28, 2003 — to comply with subpoena.10

After reaching an agreement on a protective Order, many documents were made available to counsel for plaintiff for inspection. After several hours of inspection, the deposition commenced and was concluded.

Motion to Compel — Summary of the Arguments

On April 7, 2003, plaintiff filed the instant motion to compel. In sum, plaintiff argues that on the morning of January 28, 2003, in connection with the noticed Rule 30(b)(6) deposition and Rule 45 subpoena, SwRI made a large number of documents available for inspection and also served its objections to the documents requests. Plaintiff relates that “in spite of the objections lodged by SwRI, most of the documents requested would be produced as long as the parties could agree to the terms of a Protective Order....”11 Following review and discussions, the parties entered into an agreed protective order and the deposition began. During the deposition, [500]*500counsel for SwRI indicated that not all documents responsive to the subpoena had been located and there would need to be a subsequent document production of the additional documents.12 The additional production occurred on February 24, 2003 and plaintiff reviewed a “huge amount of files,”13 which plaintiff estimated to comprise approximately twenty feet.14 Plaintiff agrees that the “files produced exceeded the scope of the documents requested in the subpoena, but all were relevant.”15 Plaintiff “did not mind going through all of the documents,” and “discovered many more documents, in addition to those requested in plaintiffs subpoena, that were clearly relevant to the case.”16 From time to time, according to plaintiff, counsel for SwRI indicated that certain documents viewed by plaintiffs counsel would not be copied for plaintiff because they were not covered by the subpoena. Plaintiffs counsel reviewed the additional files in one day, and marked the files or papers he wanted copied, totaling the approximate equivalent of one and one-half banker boxes.17

Three days later, plaintiffs counsel states he received a letter from counsel for SwRI which said that all documents selected for copying by plaintiffs counsel would be reviewed by counsel for SwRI and those documents which fell within the scope of the subpoena would be copied; but those that were determined to be “outside the scope of the subpoena and for which SwRI has objected to producing” would not be copied and would not be available for further inspection.18

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Cite This Page — Counsel Stack

Bluebook (online)
218 F.R.D. 497, 2003 U.S. Dist. LEXIS 24282, 2003 WL 22708135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calvert-v-reinisch-txwd-2003.