UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
DUANE JENKINS,
Plaintiff,
v. Case No. 1:23-cv-629-RCL
MASON HARRIMAN GROUP, INC.,
Defendant.
MEMORANDUM OPINION
Plaintiff Duane Jenkins, a Virginia resident, brought this diversity action against Defendant
Mason Harriman Group, Inc. (MHG), a New Jersey corporation headquartered in Washington,
D.C. In his Complaint, Jenkins alleges one count of breach of contract and one count of unjust
enrichment, seeking $400,000 in damages. Complaint ¶¶ 20–29, ECF No. 2. Before the Court are
Jenkins’ motion to compel discovery from MHG and his motion to extend discovery to retake what
he argues was a deficient third-party deposition. 1 See Jenkins Motion to Compel, ECF No. 49;
Jenkins Motion to Extend Discovery, ECF No. 51. For the reasons explained below, the Court
will GRANT IN PART the motion to compel and DENY the motion to extend discovery to retake
a third-party deposition.
I. BACKGROUND
A. Factual History
Jenkins entered into an agreement (the “Subcontractor Agreement”) in 2020 with MHG,
which specified that Jenkins would provide MHG “with consulting services for business
1 MHG has also filed a motion for summary judgment, see ECF No. 48, which will be the subject of a separate Memorandum Opinion and Order.
1 development activities” for MHG’s clients. Complaint ¶ 10. In particular, the Subcontractor
Agreement stated that Jenkins would provide MHG with consulting services for specific clients as
described in advance within separate task orders, and that MHG’s use of Jenkins’ “pre-existing
proprietary materials is limited to the specific deliverable outlined in such task orders.” Id. ¶¶ 10,
14; Complaint Exhibit A, at 1, 6–7. The parties entered into two task orders for projects relating
to the Department of Homeland Security and the Department of Health and Human Services.
Complaint ¶ 11.
According to Jenkins, before entering into the Subcontractor Agreement, he developed a
cost-management method he calls “Budget, Cost, Performance Integration” (BCPi) and a
derivative method called “Technology Business Management extended” (TBMx)—which are both
“configurations” of a third-party cost-budget modeling software called CostPerform. Jenkins
Depo. at 64:18–65:10, ECF No. 48-2. Jenkins alleges that, after completing the task orders under
the Agreement, he discovered that MHG “had used his work to seek out and obtain a client for
which it had not contracted with [him].” Complaint ¶ 15. Specifically, Jenkins claims that MHG
secured a subcontract with the Sara Software Systems—which in turn secured a separate contract
with the Small Business Administration (SBA)—using his proprietary methods without his
knowledge or approval, in violation of the Subcontractor Agreement. Id. ¶¶ 16–19; Jenkins Opp.
re MSJ at 3, ECF No. 52.
B. Procedural History
In March 2023, Jenkins sued MHG, alleging breach of contract and unjust enrichment
based on MHG’s wrongful use of his intellectual property. After preliminary motions were
resolved, the Court granted the parties’ proposed schedule in May 2024, which set the deadline for
completion of fact discovery on October 4. ECF Nos. 13, 17. In August 2024, the Court granted
2 the parties’ motion to extend the deadline for discovery to December 4. ECF No. 19. About a
month later, Jenkins moved to compel discovery based on MHG’s failure to timely and sufficiently
respond to Jenkins’ production requests. ECF No. 20. After months of protracted briefing and
delay, the Court held a hearing on the motion in July 2025. ECF No. 35. On July 21, the Court
granted the motion to compel as unopposed because MHG’s opposition was untimely and MHG
had not provided a sufficient justification for overcoming the untimeliness. ECF No. 36. Shortly
thereafter, on August 5, the Court granted the parties’ proposed scheduling order, which set the
deadline for the completion of fact discovery and dispositive motions on October 3. ECF No. 38.
In mid-August, Jenkins sought third-party discovery from the SBA regarding its
relationship with MHG and Sara Software. ECF No. 55-2. 2 Jenkins’ counsel indicated that he
planned to take the deposition of the SBA’s representative “the week of Sept 29-Oct 3.” Id.
MHG’s counsel promptly replied that he already had depositions scheduled Monday through
Thursday of that week, so the parties agreed to schedule the deposition for Friday, October 3. Id.
Jenkins then served the SBA a subpoena listing the subject matters of the deposition, including its
familiarity with the BCPi/TBMx methods and any contracts that the SBA had entered into with
MHG. ECF No. 51-1. On October 3, Nauman Ahmad Ansari sat for the deposition as SBA’s
representative. ECF No. 51-2. During the deposition, Ansari testified that he had reviewed and
was prepared to discuss a 2018 contract SBA had with MHG. Id. at 16:21–18:06. However,
Ansari had not reviewed documents relating to Sara Software’s contract with SBA and was not
familiar with BCPi or TBMx. Id. at 18:17–21:17. Upon learning these facts, Jenkins’ counsel
terminated the deposition at 10:03 a.m. Id. at 21:18–22:06, 24:08. On October 9, six days after
2 Jenkins was not able to serve Sara Software; nor could Jenkins find a suitable replacement representative in time to for the witness to prepare before the close of discovery. Jenkins Motion to Extend Discovery at 3, ECF No. 51.
3 the close of discovery, Jenkins moved to extend discovery to re-take the SBA’s deposition. ECF
No. 51.
On September 10, Jenkins’ counsel deposed MHG’s corporate representative, Theodore
Vagias. ECF No. 49-2. On September 12, Jenkins’ counsel sent a letter to MHG’s counsel
requesting follow-up information on questions asked at this deposition—specifically, the
profitability of MHG’s work for the SBA and whether MHG believed it was allowed to use
Jenkins’ propriety information outside the deliverables outlined in the task order. ECF No. 49-5.
Three days later, on September 15, MHG responded to Jenkins’ second set of interrogatories
following up on financial information associated with MHG’s contract with the SBA. ECF No.
49-6. Unsatisfied with Vagias’ testimony and MHG’s responses, Jenkins again moved to compel
on October 3. ECF No. 49.
In light of the November 24, 2025 trial date, the Court expedited briefing on the motions,
which are now ripe. See; MHG Opp. re Motion to Compel, ECF No. 53; MHG Opp. re Motion to
Extend Discovery, ECF No. 55; Jenkins Reply re Motion to Extend Discovery, ECF No. 56;
Jenkins Reply re Motion to Compel, ECF No. 57.
II. DISCUSSION
A. Motion to Extend Discovery to Retake a Third-Party Deposition
“A schedule may be modified only for good cause and with the judge’s consent.” Fed. R.
Civ. P. 16(b)(4). When a motion for an extension is made after the original deadline has passed,
the moving party must also show that the delay in seeking the extension was due to “excusable
neglect.” Id. 6(b)(1)(B). When determining whether a party has demonstrated excusable neglect,
a court considers “the risk of prejudice to the non-movant, the length of delay, the reason for the
delay, including whether it was in control of the movant, and whether the movant acted in good
faith.” FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 447 F.3d 835, 838 (D.C.
4 Cir. 2006) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395–97
(1993)).
Jenkins filed his motion to extend discovery on October 9, six days after discovery closed
on October 3. ECF No. 51. In his motion to extend discovery, Jenkins does not acknowledge the
motion’s untimeliness, much less argue the existence of excusable neglect. While Jenkins attempts
to rectify this mistake in his reply brief, an argument raised “for the first time in [a] reply brief” is
ordinarily deemed “waived,” and Jenkins offers no basis for finding an exception here. Lindsey v.
District of Columbia, 879 F. Supp. 2d 87, 95 (D.D.C. 2012).
In any case, the Court is skeptical that Jenkins can demonstrate good cause or excusable
neglect. To begin, Jenkins waited until the last week of discovery to depose the SBA’s
representative, Ansari. Jenkins claims that the SBA failed to produce a deponent who was
prepared to address all the topics described in the subpoena served to it on August 22, 2025, but
he offers no compelling reason as to why he delayed seeking discovery from the SBA in the first
place. In his initial motion, Jenkins suggests that he did not realize he would need to depose an
SBA representative until MHG “produced additional materials” in response to the Court’s July 21
motion to compel. Jenkins Motion to Extend Discovery at 3 (“It became clear further examination
of the Sara contract and the work provided to MHG was necessary to determine the truth behind
MHG’s use of Mr. Jenkins’ property. To that end, Plaintiff set [out] to serve . . . the Small Business
Association . . . .”). But in his Complaint, filed in March 2023, Jenkins alleged that MHG violated
the Subcontractor Agreement through its dealings with the SBA. It should have therefore been
apparent from the get-go that Jenkins would need discovery from the SBA in this case.
In his reply, Jenkins states that he delayed because he did not have enough information to
craft a subpoena that would allow an SBA representative to properly prepare for the deposition
5 until MHG produced documents relating to the Sara Software contract on August 6, 2025. Jenkins
Reply re Motion to Extend Discovery at 1, ECF No. 51. But it was the parties who suggested the
October 3 deadline for discovery, ECF No. 38, and it was Jenkins who proposed deposing an SBA
representative the week of September 29 to October 3, ECF No. 55-1. Thus, the delay was at least
in part in Jenkins’ control.
Finally, Jenkins has not demonstrated that the lack of such discovery would unfairly
prejudice him. Jenkins’ counsel called off the deposition because Ansari (1) was not prepared to
discuss the Sara Software contracts, and (2) was unfamiliar with the BCPi and TMBx methods.
As to the first basis, the Court notes that the subpoena sent to SBA makes no explicit mention of
Sara Software, and instead prompted the SBA to review, in particular, a contract numbered
73351018F0343—but Jenkins’ counsel never asked Ansari about this contract and instead called
off the deposition soon after Ansari indicated that he was unfamiliar with a different contract
numbered 73351024F0002. ECF No. 51-1; Ansari Depo. at 20:15–20:22, ECF No. 51-2. That
Jenkins’ counsel may have jumped the gun in cutting short the deposition is no reason to extend
discovery now.
The Court further observes that the latter contract is not mentioned in the subpoena.
Moreover, this contract is the one between MHG and Sara Software. ECF No. 49-3. Yet Jenkins
makes no argument as to why the SBA would necessarily have knowledge about this contract
when the agency was not a party to it. Even if contracting regulations would have led the SBA to
require Sara Software to disclose its subcontractor, Jenkins does not explain why SBA would
necessarily have the subcontract itself. As for Ansari’s unfamiliarity with BCPi and TMBx—it is
not clear whether this was a function of his lack of preparation or simply a function of the SBA
having no knowledge of Jenkins’ purportedly proprietary methods. At the least, the Court is not
6 convinced that denying Jenkins the chance to retake the SBA deposition would severely prejudice
him given these considerations. This motion will therefore be denied.
B. Motion to Compel
Under Rule 37 of the Federal Rules of Civil Procedure, a party may move to compel
discovery when “a deponent fails to answer a question” or when “a party fails to answer an
interrogatory.” Fed. R. Civ. P. 37(a)(3)(B). The Court enjoys “broad discretion in determining
whether to grant or deny a motion to compel discovery,” and an appellate court will not reverse
the Court’s decision “unless there has been an abuse of discretion resulting in prejudice.” Futrell
v. Dep’t of Lab. Fed. Credit Union, 816 A.2d 793, 809 (D.C. 2003) (quoting Haynes v. District of
Columbia, 503 A.2d 1219, 1224 (D.C. 1986)).
“A motion to compel a witness to answer questions put at a deposition should be granted
if the questions are relevant and proper and denied if the questions call for privileged information.”
Cobell v. Norton, 213 F.R.D. 16, 23 (D.D.C. 2003) (quoting 8A Charles Alan Wright, Arthur R.
Miller, & Richard L. Marcus, Federal Practice and Procedure § 2286 (2d ed. 1994)); see also Fed.
R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case . . . .”).
Jenkins moved to compel discovery on the basis that MHG (and its representative, Vagias)
failed to respond to interrogatories and deposition questions. While the Court cannot conclude
that MHG’s interrogatory responses were incomplete, the Court will grant the motion to compel
proper responses to the unanswered questions that Jenkins’ counsel asked at Vagias’ deposition.
1. Interrogatories
Jenkins asserts that MHG failed to provide sufficient responses to Jenkins’ second
interrogatories. Specifically, Jenkins takes issue with MHG responding to questions regarding the
7 profitability of its contract with Sara Software by instructing Jenkins to “ascertain the information”
from “MHG 000409-23 and others that have been produced in this case.” Jenkins Motion to
Compel at 10, ECF No. 49 (quoting ECF No. 49-6). According to Jenkins, the referenced
document does not contain information regarding the profitability of the SBA project. Id. at 10
n.3. But by failing to include the referenced document as an exhibit to his motion (or otherwise
indicate where in the record it may be found), Jenkins has failed to provide the Court with a basis
on which to evaluate this claim. See United States v. Kellogg Brown & Root Servs., Inc., 284
F.R.D. 22, 27 (D.D.C. 2012) (“When the opposing party has answered the movant’s
interrogatories, the party moving to compel discovery has the burden of showing that the opposing
party’s responses are incomplete.”). So, as to the purportedly deficient interrogatory responses,
Jenkins’ motion is denied. 3
2. Deposition
The Court is, however, persuaded as to the deficiencies in Vagias’ deposition testimony.
To begin, Jenkins argues that Vagias refused to answer questions regarding whether MHG could
use Jenkins’ intellectual property under the Subcontractor Agreement—that is, questions that went
to MHG’s understanding of the contract. For example, Jenkins takes issues with Vagias refusing
to answer the following question: “Was it your understanding that the intellectual property that
was created for each client was a deliverable for each client?” Jenkins Motion to Compel at 4,
ECF No. 49 (quoting Vagias Depo. at 145:21–146:02, ECF No. 49-2). Defense counsel objected
that the question calls for a “legal conclusion,” and to the extent that it merely asks for Vagias’
understanding, it “calls for information that would have been learned through conversations
3 MHG appears to have corrected the deficiencies in its interrogatory responses after the motion to compel was filed by providing a supplemental response on October 10. See Jenkins Reply re Motion to Compel at 3–4, ECF No. 57; October 10 Email, ECF No. 53-3; Supplemental Responses, ECF No. 52-3.
8 between the client and the attorney,” therefore implicated “attorney-client privilege.” Vagias
Depo. at 146:03–146:14, ECF No. 49-2. In response to a series of questions regarding whether
MHG could use Jenkins’ preexisting propriety materials (assuming he had any) for uses outside
the specific deliverables outlined in the task orders, Vagias insisted that Jenkins “didn’t have
preexisting intellectual property” but refused to give an answer as to MHG’s understanding of the
contract it had entered into with Jenkins. Id. at 149:11–151:07. 4
Jenkins next contends that Vagias improperly refused to authenticate MHG’s subcontract
with Sara Software. In response to Jenkins’ counsel’s question regarding whether an exhibit
presented to Vagias at his deposition was the relevant contract, Vagias replied: “If this document
came from [MHG] to you, then this is the document that we would have sent on a subcontract
between Sara Soft to [MHG].” Id. at 246:19–247:21. As for an amendment to the subcontract,
Vagias could not identify the exhibit presented to him without further documentation, which he
indicated he could later provide. Id. at 249:18–255:14 (“Without my documentation, I can’t tell
you . . . . If you would like, we can send you that.”). Similarly, Vagias represented that he did not
know how much revenue and profit was paid to MHG under its subcontract with Sara Software,
again stating that he could provide a written answer. Id. at 261:13–262:22 (“We can provide you
with that information.”). But MHG never responded to Jenkins’ September 12 letter following up
on the issues that arose at Vagias’ deposition.
In its opposition, MHG renews no argument that any of Vagias’ responses were privileged.
While MHG’s counsel at one point raised attorney-client privilege at the deposition, MHG has
failed to defend that position despite having the burden to do so. See Cobell, 213 F.R.D. at 23
4 See also, e.g., Vagias Depo. at 152:06–152:12, ECF No. 49-2 (“Q: [Y]our counsel has objected but he hasn’t instructed you not to answer, so please answer. A: You’re saying if materials were utilized, materials weren’t utilized because he didn’t provide any preexisting proprietary information or materials.”).
9 (“The party that asserts the existence of the attorney-client privilege possesses the burden of
demonstrating its applicability.”). In any event, certainly some of Jenkins’ counsel’s questions did
not implicate the privilege. And even those questions relating to Vagias’ understanding of the
Subcontractor Agreement would not have been privileged if the question called for his subjective
interpretation of the text of the contract itself, without requiring him to disclose any confidential
communication with his lawyer.
Nor does MHG contend that the information Jenkins sought was not relevant to his claims.
Instead, MHG simply asserts that Vagias’ responses were complete. The Court, however, cannot
agree. Vagias was evasive and combative during his deposition, and he refused to give a
straightforward answer to questions that called for relevant, nonprivileged information. On
multiple occasions, he indicated the need to follow up in writing to provide a proper answer, but
he failed to do so even after Jenkins sent the September 12 letter indicating the deficiencies in the
deposition testimony.
The foregoing should not be read to suggest that MHG’s counsel’s objections were
unfounded across the board. But a deponent must answer the attorney’s question so long as the
question does not call for privileged or otherwise objectionable information—even when the
opposing counsel raises a legitimate objection to the question. See Fed. R. Civ. P. 30(c)(2) (“An
objection at the time of the examination . . . must be noted on the record, but the examination still
proceeds . . . . A person may instruct a deponent not to answer only when necessary to preserve a
privilege, to enforce a limitation ordered by the court, or to present a motion under Rule
30(d)(3).”). The Court will therefore grant Jenkins’ motion to compel discovery as to the
deficiencies in Vagias’ deposition testimony.
10 Seeking to avoid this outcome, MHG points out that Jenkins filed this motion on the last
day of discovery—October 3—even though the deposition in dispute took place on September 10
and the interrogatory responses in dispute were provided on September 15. ECF No. 49-2;
ECF No. 49-6. A court may deny a motion to compel that is filed “too close to the close of
discovery to be resolved prior to the deadline.” United States v. All Assets Held at Bank Julius
Baer & Co., No. 04-cv-798, 2019 WL 1167743, at *3 (D.D.C. Mar. 13, 2019); Bethea v. Comcast,
218 F.R.D. 328, 331–32 (D.D.C. 2003) (denying a motion to compel as untimely where plaintiff
filed the motion only a few days “prior to the extended discovery deadline” because the motion
could not “be fully briefed” or decided “before the discovery period closed”).
However, in this case, Jenkins first moved to compel in September 2024 and waited until
July 2025 for that motion to be granted. ECF Nos. 20, 36. He then had just over two months to
conduct the remaining discovery. While waiting to move until the last day of discovery is certainly
not best practice, the fact that Jenkins had only about two weeks between receiving the deficient
responses and the close of discovery sets this case apart from those where courts of appeals have
upheld denials of eleventh-hour motions to compel. See, e.g., Summy-Long v. Penn. State Univ.,
715 F. App’x 179, 184 (3d Cir. 2017) (affirming district judge’s denial of motion to compel where
plaintiff “waited almost twenty months” to file “a motion to compel on the very last day of
discovery”); Barnes v. Madison, 79 F. App’x 691, 699 (5th Cir. 2003) (“It was only in the last
days leading up to the . . . discovery deadline that Barnes began to press the issue with a motion to
compel, despite the fact that Barnes had received the defendants’ objections to her discovery
requests months earlier.” (emphasis added)).
Next, MHG argues that Jenkins failed to make good faith efforts to resolve the discovery
dispute without court intervention. A motion to compel “must include a certification that the
11 movant has in good faith conferred or attempted to confer with person or party failing to make
disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). In
his errata to his motion to compel, Jenkins stated that his counsel received “[n]o response” to letters
sent to MHG’s counsel on September 12 and October 3 regarding the outstanding discovery
disputes, and that these letters satisfied his “meet and confer” requirements. ECF No. 50. This is
somewhat misleading: While Jenkins filed his motion to compel before MHG responded to the
October 3 email, he filed his errata only after MHG responded (three hours after it was sent) asking
for an opportunity to meet and confer. See ECF No. 49 (Jenkins moved to compel at 4:40 p.m.);
ECF No. 53-2 (Jenkins emailed MHG at 1:42 p.m., and MHG responded at 4:47 p.m. and 4:56
p.m., asking for an opportunity to meet and confer); ECF No. 54 (Jenkins filed his errata at 5:13
p.m., claiming that MHG never responded to the October 3 email). Jenkins’ subterfuge regarding
the October 3 communication is not appreciated. But ultimately, MHG failed to respond to the
September 12 letter—which did indicate that Jenkins would consider moving to compel if MHG
failed to respond. MHG had over two weeks to respond to the letter but never did so.
In sum, the Court will grant the motion to compel to retake Vagias’ deposition so that he
can properly respond to the unanswered questions that Jenkins’ counsel posed in the first
deposition. Or in lieu of a new deposition, the parties may complete this discovery in some other
agreed-upon manner. The deadline for completing this outstanding discovery will be November
5, 2025. In resolving this motion, the Court reminds counsel that they are expected to conduct
themselves with professionalism and civility. Regrettably, it is clear that the discovery
proceedings in this case have devolved into acrimonious disputes between the parties and the
12 lawyers. 5 As the trial date approaches, the Court admonishes all involved to cooperate to resolve
the remaining issues.
3. Attorneys’ Fees
If a motion to compel “is granted—or if the disclosure or requested discovery is provided
after the motion was filed—the court must, after giving an opportunity to be heard, require the
party or deponent whose conduct necessitated the motion, the party or attorney advising that
conduct, or both, to pay the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). But a court may not award attorneys’ fees
if (1) “the movant filed the motion before attempting in good faith to obtain the disclosure or
discovery without court action;” (2) the opposing party’s was “substantially justified” in opposing
discovery; or (3) “other circumstances make an award of expenses unjust.” Id. 37(a)(5)(A)(i)–
(iii). “If the motion is granted in part and denied in part, the court may . . . apportion the reasonable
expenses for the motion.”
5 Consider the following exchange at Vagias’ deposition: Jenkins’ Counsel: I asked the question. MHG’s Counsel: There’s no—ask another question. Ask it again in a different way. The problem is with the question. Jenkins’ Counsel: I’m asking it in English. Do you want me to put it into Spanish? I don’t know. Vagias: You being derogatory? Are you being derogatory with the Spanish? MHG’s Counsel: Just stop, Teddy. Jenkins’ Counsel: Oh, please. Vagias: Are you going to say the same thing about Greeks? Is that the way you’re going to behave? MHG’s Counsel: Enough. Enough. We’re moving on. Ask your question. Jenkins’ Counsel. Yes. Pretend. Vagias: Is that the question? Jenkins’ Counsel: The question is, was your company allowed to reuse preexisting proprietary materials for another client if they were contributed by Mr. Jenkins? MHG’s Counsel: Objection. Form. Calls for a hypothetical. Calls for a legal conclusion. Assumes facts not in evidence. Vagias Depo. 153:13–154:15, ECF No. 49-2.