Malcolm v. Reynolds Polymer Technology, Inc.

          ORDER

          Kristen L. Mix, United States Magistrate Judge.

         This matter is before the Court on Plaintiff's Motion for Issuance of Letters of Request [#70]^[1] (the “Motion”). Intervenor-Defendant Acrylic Tank Manufacturing of Nevada (“ATM”) filed a Response [#85] in opposition to the Motion, to which Defendant Reynolds Polymer Technology, Inc. (“Reynolds”) joins.^[2] Def.'s Joinder [#86]. Subsequently, Plaintiff filed a Reply [#93]. In the Motion, Plaintiff seeks the issuance of letters of request to the appropriate Scottish Court to obtain documents from HT Systems (UK) Ltd. (“HT Systems”), a company located in Scotland. See generally Motion [#70]. Plaintiff attaches Exhibit A [#70-1] to the Motion which lists the documents to be produced. Plaintiff further provides the Court with a Proposed Order [#70-2] to be entered if the Motion is granted. The Court has reviewed the Motion, the Response, the Reply, the attachments thereto, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#70] is GRANTED.

         I. Background

         The factual background relevant to the Motion [#70] is as follows. This case concerns a 25, 000 gallon, custom-made marine aquarium (the “Aquarium”) that collapsed in Plaintiff's home located in Scotland on November 30, 2015. See Order [#54] at 1-2. Plaintiff entered into a written agreement with Intervenor-Defendant ATM on September 6, 2007, whereby ATM agreed to design, build, and install the Aquarium. Id. at 1. ATM subsequently contracted with Defendant Reynolds to manufacture the Aquarium to ATM's specifications. Id.

         According to the instant Motion, Plaintiff hired HT Systems to repair the damage to Plaintiff's home after the Aquarium collapsed. [#70] at 2. HT Systems is owned by William Fraser (“Fraser”), who Plaintiff has designated as a non-retained expert in this case to “to testify on his opinions as to the necessity of repairs and the reasonableness of the cost of repair.” Id. On May 15, 2019, Defendant Reynolds and Intervenor-Defendant ATM (collectively, “Defendants”) deposed Mr. Fraser, who appeared voluntarily, in Glasgow, Scotland. Id. Pursuant to Defendants' Deposition Notice [#93-1] (the “Notice”), Mr. Frasier was “required to bring any documents related to [Plaintiff's] residence not previously produced to counsel or disclosed in this matter.” Joint Notice of Videotaped Deposition of William Fraser [#93-1] at 2. During the deposition, Mr. Fraser produced HT Systems' invoices for the repair work to Plaintiff's home. Motion [#70] at 2. However, it was revealed during the deposition that Mr. Frasier had also hired subcontractors to do certain repair work on the home and that he was unable to produce those invoices from the sub-contractors. Id.

         In the Motion, Plaintiff states that “[i]t does not appear that Mr. Fraser will voluntarily produce the sub-contractor invoices[.]” Id. For this reason, Plaintiff seeks an order from the Court that requests assistance from the appropriate Scottish Court to obtain documents from HT Systems. Id. Specifically, as set forth in Exhibit A [#70-1], Plaintiff seeks the following documents from HT Systems:

1. All documents relating to invoices or other costs incurred for the repair to the home of Mr. Steven Malcolm located at 8, The Queens Crescent, Gleneagles (the “Home”) in December 2015 - 2018.

2. All invoices obtained from sub-contractors HTS worked with for the building reinstatement of Mr. Steven Malcolm located at 8, The Queens Crescent, Gleneagles (the “Home”) in December 2015 - 2018.

3. All record of payment from HTS to a sub-contractor showing the sub-contractor invoices were paid by HTS.

Pl.'s Ex. A, Request for Documents from HT Systems (UK) Ltd. [#70-1] at 2. According to Plaintiff, the above documents are required for this litigation and will be used for trial purposes. Motion [#70] at 2.

         In opposition, Defendants argue that Plaintiff's Motion [#70] should be denied for the following three reasons.

         First, Defendants assert that the Motion [#70] is “untimely and requests documents that were not contemplated when the parties agreed to extend discovery deadlines.” Response [#85] at 2. Defendants note that, on May 17, 2019, the parties filed their Joint Motion for 45-Day Extension of Discovery Deadlines [#66] (the “Joint Motion”) seeking to extend the discovery deadline in this case in order to obtain testimony of GR3 and AFP and their representatives in London, England “and to evaluate the need for additional discovery following the trial testimony.” Id. at 2; Joint Motion for 45-Day Extension of Discovery Deadlines [#66] at 2. The Court granted the parties' Joint Motion [#66] on May 20, 2019, extending the fact and expert discovery cut-off until July 1, 2019. Minute Order [#68]. Approximately a month later, Plaintiff filed the instant Motion [#70] on June 13, 2019. According to Defendants, the Joint Motion [#66] “did not contemplate any additional time to conduct discovery regarding either Plaintiff's non-retained expert William Fraser or his company, [HT Systems], and certainly did not request a time frame outside of July 1, 2019 to do so.” Response [#85] at 3. In light of this, Defendants argue that Plaintiff should have moved to (or indicated his intention to) obtain the documents from HT Systems in the Joint Motion [#66] and that it is untimely for Plaintiff to do so now. Id. at 3.

         Second, Defendants argue that the Motion should be denied because Plaintiff has failed to show why Mr. Fraser, Plaintiff's own non-retained expert, is unable to provide the documents at issue without Court intervention. Response [#85] at 3. Defendants allege the following in support of this argument:

During his deposition, Mr. Fraser testified that he had not provided the invoices to anyone, despite being asked for them, because of a “lack of time” and because the documents were extensive. This obviously does not excuse him from providing them. Interestingly, during his deposition, Mr. Fraser also testified that he had met with Plaintiff's counsel the day prior to the deposition, during which time he apparently reviewed “his own documents” with Plaintiff's counsel. Mr. Fraser confirmed at his deposition that Plaintiff's counsel ...