United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
Xinis United States District Judge
before the Court is Defendant/Counter-Plaintiff
CoesterVMS.com, Inc. (“CoesterVMS”)'s Motion
for Leave to File a Third Amended Answer and Counterclaim
(ECF No. 74), and Plaintiff Mark Skapinetz
(“Skapinetz”)'s Motion for Sanctions (ECF No.
70), Motion to Seal (ECF No. 69), and letter pleading seeking
an Order compelling additional outstanding discovery (ECF No.
79). For the following reasons, the Court DENIES
CoesterVMS' motion, GRANTS Skapinetz' motion to
compel, GRANTS Skapinetz' motion to seal, and GRANTS in
part and DENIES in part Skapinetz' motion for sanctions.
The Court addresses each motion in turn.
Motion for Sanctions (ECF No. 70).
case has been plagued with a tortured discovery history,
mostly due to CoesterVMS' lack of diligence and care in
abiding by this Court's scheduling and discovery Orders.
The Court has held five status
conferences concerning schedule or discovery matters.
See, e.g., ECF Nos. 34, 44, 61, 64, 66. At the last
in-person discovery conference, the Court issued a discovery
order compelling CoesterVMS to fully comply with all
outstanding written discovery on both its defenses and
counterclaims by Friday September 28, 2018 at 5 p.m. ECF No.
63. The crux of Skapinetz' recent motion is that (a) once
again, CoesterVMS did not meet the Court's ordered
deadline, (b) the discovery produced is tantamount to a data
dump, and in many respects, devoid of authenticity,
reliability or even a witness who has been disclosed in
advance as its sponsor, and (c) a total lack of documentary
or corroborative proof on CoesterVMS' counterclaims.
frustrated, Skapinetz seeks dismissal of the counterclaims, a
sanction well within this Court's power after repeated
warnings that CoesterVMS must comply or risk that very
sanction. Okpala v. Comput. Sci. Corp., CSC, 585
Fed.Appx. 298, 298 (4th Cir. 2014) (citing Fed.R.Civ.P.
37(b)(2)(A)); see also ECF No. 63 at 2. At this
juncture, the Court is prepared to impose the following
restrictions going forward.
A. On CoesterVMS' counterclaims, CoesterVMS will
not be permitted to supplement written discovery,
and CoesterVMS will be confined to only those documents and
answers produced or exchanged as of September 28, 2018 at 5
p.m. The Court's prior order was clear: produce
all written discovery, to include discovery on the
counterclaims as defined in the order itself, by no later
than September 28, 2018 at 5 p.m. Any discovery produced
after such time will neither be considered at summary
judgment or allowed as evidence should the claims proceed to
B. On any of CoesterVMS' defenses for which the
foundation includes answers provided in interrogatories, or
in documents or other records, CoesterVMS will be confined to
only those defenses preserved in answers and documents
produced by September 28, 2018 at 5 p.m.
C. CoesterVMS will be precluded from calling or relying upon
any witness not previously disclosed in its written discovery
responses by the Court's ordered date of September 28,
2018 at 5 p.m. Additionally, CoesterVMS is reminded that no
witness will be permitted to testify to matters for which the
foundation for the testimony is based on documents, records,
or other discovery which this Court has excluded for failure
to abide by the September 28, 2018 5 p.m. production
D. To the extent CoesterVMS asserts privilege regarding a
document or testimony and has not generated an entry on the
produced privilege log in compliance with Rule
26(b)(5)(A)(ii) of the Federal Rules of Civil Procedure, the
asserted privilege is deemed waived. Mezu v.
Morgan State Univ., 269 F.R.D. 565, 577 (D. Md. 2010).
With the above sanctions imposed, the Court will ascertain at
summary judgment whether the counterclaims may proceed.
Plaintiff's motion is GRANTED in part and DENIED in
Motion for Leave to File a Third Amended Answer and
Counterclaim (ECF No. 74)
Court views CoesterVMS' proposed third Amended Answer and
Counterclaim as adding confusion and expanding (possibly) the
scope of its claims in a way that this Court will not permit
at this late juncture. Although amendment to pleadings is
granted liberally, not so when amendment would unfairly
expand the scope of the case late in the discovery process or
otherwise prejudice the parties. Mayfield v. Nat'l
Ass'n for Stock Car Auto Racing, Inc., 674 F.3d 369,
379 (4th Cir. 2012).
the proposed third Amended Answer and Counterclaim seeks to
remove Brian Coester in toto, despite the fact that
Brian Coester's answers and counterclaims are preserved
in the Second Amended Answer and Counterclaim. Simply because
Brian Coester now has separate counsel provides no sound
justification for erasing his answers and counterclaims.
Further, the Court is at a loss for how CoesterVMS retains
authority to alter the scope of Brian Coester's answers
and counterclaims precisely because Brian Coester has
separate counsel. The Court will not permit this amendment.
the Court agrees with Skapinetz that the proposed amendments
risk broadening the scope of the counterclaims in a manner
that is unnecessary and unfair at this juncture. Throughout,
Plaintiff has diligently sought damages discovery on the
counterclaims limited in time and scope. At the September 25,
2018 hearing, and after extensive discussion with the
parties, the Court limited the damages timeframe as November
16, 2016 to December 2017. Skapinetz fairly raises concerns
that the proposed amendments now include allegations well
beyond this time frame, and on mere weeks away from the close
of discovery. In response, CoesterVMS asserts that
“[n]othing in the amended counterclaim is intended
to” “enlarge the relevant time frame, ” nor
does the proposed amended counterclaim change “in any
way” the scope of the claim itself. ECF No. 83 at 4-5.
If true, then this begs the question as to why this Court
should allow the amendment at all. Based on CoesterVMS'
own position that the amendments neither alter the scope or
substance of the counterclaims, the Court is given no
rational basis to allow amendment.
bottom, the amendment seems to introduce additional factual
detail learned in discovery without much purpose. The parties
are beyond challenging the sufficiency of the claims as
pleaded. For summary judgment, the Court is already aware of
the nature and scope of the claims and needs no further
amendment to assess whether a triable ...