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Thanh v. Ngo

United States District Court, Fourth Circuit

May 9, 2013

HOAI THANH, Plaintiff,
HIEN T. NGO, Defendant.


PETER J. MESSITTE, District Judge.

This false light and defamation case is the latest in the long history of litigation between Plaintiff Hoai Thanh and Defendant Hien T. Ngo.

Discovery in the case, which began in early 2012, has been characterized by several motions. In December 2012 and January 2013, Thanh filed a "Motion to Enforce Discovery Settlement Agreement" (Dkt. 58) (seeking primarily to obtain court orders to have three Internet Service Providers (ISPS) provide content information) and a "Motion to Compel" (Dkt. 60) (complaining about discovery disputes in general and seeking to have Ngo produce a tape recording). Ngo, partially at least, opposes Thanh's Motions. The Court referred these discovery issues and related scheduling matters to Magistrate Judge (MJ) Charles B. Day. Following a hearing on the Motions before MJ Day, in an oral ruling he granted-in-part and denied-in-part Thanh's Motion to Enforce Discovery Settlement Agreement but denied his Motion to Compel. ( See Dkts. 68 and 69.)

Thanh objects to these rulings ( see Dkts. 70 and 71). Ngo has not filed a response to this appeal. The Court reviews the MJ's rulings for clear error. See Baltimore Line Handling Co. v. Brophy, 771 F.Supp.2d 531 (D. Md. 2011).

Having done so, the Court OVERRULES Thanh's Objections.


Thanh's Motions and Objections are intertwined, since both relate to discovery disputes which arose in August 2012. At that time, Thanh served Ngo with an original Motion to Compel discovery, seeking emails and the tape recording. When counsel for the parties met in August, defense counsel advised Plaintiff's counsel that Ngo did not possess a tape, but stated that he would work on getting the emails from three ISPs. Counsel for the parties labored throughout the fall to get emails from the ISPs, but, facing resistance from the ISPs, met again in December. Eventually it became clear that, absent a court order, the ISPs would not turn over the information. It was at that point that Thanh filed his present "Motion to Enforce Settlement Agreement, " followed by his "Motion to Compel, " alleging generally obstructionist behavior on the part of Ngo, and, once again seeking, among other things, to obtain the tape recording. At oral argument before MJ Day, Thanh concentrated on the issue of the tape recording, alleging, among other things, that Ngo had deliberately destroyed it.

* * *

Thanh's original Motion to Compel production of the tape recording was served on Ngo in August 2012. When counsel met in August, Ngo clearly represented through counsel that Ngo no longer had the tape. Thereafter, Thanh continued to maintain that he had a right to the tape while Ngo continued to insist she did not have it. In January 2013, Thanh filed a renewed Motion to Compel.

MJ Day determined that Thanh had not filed his renewed Motion to Compel in a reasonable time after his request was rebuffed-noting that Thanh knew as of August 2012 that Ngo was asserting she did not have the tape. When Thanh did file, January 2013, some five months had passed. In addition, MJ Day pointed out that Ngo was not refusing to produce something within her possession, custody, or control; rather, she was not producing something she claimed to not possess. MJ Day further stated that the record evidence of spoliation was insufficient, since it was unclear as to when Ngo may have gotten rid of the tape and as to when she should have reasonably anticipated litigation. However, MJ Day left open the possibility that with more evidence, Thanh might possibly set forth a spoliation case in the future. The MJ also indicated that, if Thanh's counsel so wished, Ngo's counsel could set forth in writing that the tape was not in Ngo's possession, custody, or control. The Court assumes that either this has been done, or if it has not been done, and Ngo for any reason declines to furnish the statement voluntarily, Thanh may return to MJ Day, requesting an order that it be done.

In his Motion to Compel, Thanh argues that the Local Rules of the Court do not set a time limit for the filing of a motion to compel, that MJ Day completely ignored the spoliation issue, and that he wrongly imposed sanctions on Thanh in saying that costs associated with getting ISP information should preliminarily fall on Thanh, whereas spoliation by Ngo should have required that such costs be borne by Ngo.


While there is no local or federal rule setting a precise deadline for the filing of a motion to compel, it is clear that any such motion must be filed within a "reasonable" time period. See 8B Charles Alan Wright et al., Federal Practice and Procedure ยง 2285 (3d ed. 2010) ("the moving party must seek a Rule 37(a) order in a timely fashion.... long delays in seeking a court order may weaken or undermine the argument that the additional discovery is important."). In this case, MJ Day committed no clear error in concluding that Thanh's delay of almost 6 months from the time he knew he would not get the tape until he sought relief from the Court by Motion was unreasonable. Nor was MJ Day in error in concluding that the record before him did not demonstrate spoliation by Ngo. Further, the MJ's comments that Thanh might need to shoulder the costs of obtaining discovery from the ISPs in no sense amounted to a "sanction" against Thanh or an inappropriate ...

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