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Stewart Manago v. Brad Williams

December 16, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff seeks reconsideration of this court's order filed November 30, 2011. In addition, defense counsel seeks an order directing plaintiff to cease corresponding with counsel without court preauthorization.


Plaintiff seeks reconsideration of this court's recent ruling which, in pertinent part, denied plaintiff's request for sanctions and additional discovery materials, with the exception of two audiotapes ordered disclosed and any related confidential material. (Dkt. No. 199.) Plaintiff again contends that the recent supplemental production of documents by Shanan Hewitt, defense counsel for all defendants except defendant Brockett, demonstrates that Ms. Hewitt misled the court and plaintiff in her prior representations that she had produced all relevant discovery. The court previously rejected this contention on the ground that the Federal Rules of Civil Procedure expressly provide for the supplemental production of discovery that was previously and inadvertently overlooked.

Discovery closed in this action on February 24, 2011, although limited extensions of time were accorded for specific matters. Dispositive motions are now pending. Defendants filed two motions for summary judgment (the motion on behalf of the majority of the defendants was filed by Ms. Hewitt on October 28, 2011); and plaintiff filed oppositions to each motion. In the court's last order, an extension of time was granted to enable plaintiff to listen to the subject audiotapes and to review related confidential material, and for the filing of defendants' reply briefs; the court also granted plaintiff leave to file a surreply. With the exception of this limited evidence, ALL relevant discovery should have been disclosed by this date.

In support of his motion for reconsideration, plaintiff has attached a copy of defendants' supplemental response, served on plaintiff on October 20, 2011. That response includes language which indicates that defendants have not yet completed discovery. (See Dkt. No. 204 at 19.) While some of this language appears to be "boilerplate," additional language appears specific to the supplemental disclosure.*fn1 None of these statements are appropriate at this stage of the litigation. The language is confounding to the undersigned, as well as plaintiff, who understandably remains unconvinced that all relevant evidence has been disclosed. Accordingly, the court will require Ms. Hewitt, and each of the defendants she represents, to file declarations stating, under penalty of perjury, that each defendant has produced all relevant evidence; in addition, Ms. Hewitt shall inform the court whether defendants' motion for summary judgment, which includes approximately 1000 pages of exhibits, is based only upon evidence that has been previously disclosed and produced to plaintiff. Defendant Brockett and her counsel, Mark Kruger, will be required to do the same.

The undersigned takes seriously plaintiff's claims in this action; defendant Brockett's alleged misconduct apparently resulted in her dismissal, and also underscores the seriousness of the other defendants' alleged related conduct. This is a factually and legally complex case that has required extraordinary court involvement. Plaintiff proceeds without counsel (although he has been invited to request appointment of counsel (see Dkt. Nos. 155, 148, 124)), and is further disadvantaged by his incarceration and regimented access to pertinent documents. Plaintiff should not be further handicapped by discovery that trickles in, particularly in tandem with a disclaimer that there may still be additional relevant evidence. If there currently exists any additional relevant evidence, defendants shall disclose and produce such evidence to plaintiff, when defendants serve their statements of compliance and supporting declarations. See Fed. R. Civ. P. 11; Local Rule 110. Failure, at this time, to disclose all relevant evidence may result in a recommendation by the undersigned that any purportedly new evidence be excluded at trial, as well as other potential sanctions.


In a separate matter, Ms. Hewitt has filed a request that the court order plaintiff to cease corresponding with defense counsel without court preauthorization. In an affidavit supported by documentation, counsel states that plaintiff's correspondence includes accusations and threats such as the following:

I know criminal behavior when I observe, but I can assure you that, you will regret it in the long run. (Dkt. No. 202, Ex. 1, p. 1.)

You must remember when you do foul moves, it will come back on you. (Id., Ex. 2, p. 2.)

Plaintiff is informed that such communications are not authorized by the Federal Rules of Civil Procedure or Local Rules; moreover, they are sanctionable. Available sanctions include dismissal of the underlying action. See Fed. R. Civ. P. 11;*fn2 Local Rules 110,*fn3 183(a).*fn4

The court has previously admonished plaintiff to stop burdening the court with excessive filings. (See Dkt. No. 148.) Plaintiff is again admonished to refrain from filing such documents with the court, and is further admonished to stop sending correspondence to defense counsel. With this order, there should remain no further discovery disagreements, and hence no reason for correspondence among the parties. The extended deadlines for completing the briefing on defendants' pending motions for summary judgment have been set. Pending a decision of this court on those motions, there is no reason for plaintiff to further communicate with defense counsel, and no authority for any ...

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