The opinion of the court was delivered by: John D. Bates United States District Judge
MEMORANDUM OPINION & ORDER
Before the Court are three motions filed by defendant -- a motion for sanctions, a motion for leave to file a third supplemental memorandum in support of the motion for sanctions, and a motion to strike a late-designated expert report. These motions are but the latest chapters in counsels' continuing inability to conduct discovery civilly and reasonably. All three motions will be denied.*fn1
Defendant filed a motion for sanctions on February 27, 2009, seeking to strike plaintiff's wage loss claim and requesting an order requiring plaintiff to submit to an HIV screen. With respect to the wage loss claim, defendant contended that plaintiff had willfully withheld the identity of two doctors and pharmacy records in violation of court orders, thus demonstrating that he was concealing a pre-existing back condition that would independently reduce his future earnings. When plaintiff explained that he had simply forgotten that he had received treatment from those two doctors, defendant asserted that plaintiff was lying. As to the HIV issue, defendant argued that plaintiff's withholding of pharmacy records, coupled with evidence that he had written "homoerotic" novels, worked with AIDS groups, and seen an internist with an interest in HIV, provided good cause to order plaintiff to submit to an HIV test.
On April 13, 2009, the Court deferred ruling on the motion. The Court ordered production of certain medical records and provided defendant with an opportunity to depose the doctors whose identity plaintiff had not previously disclosed, as well as a limited deposition of plaintiff's mother, who had provided plaintiff with a prescription drug (Flexeril). The Court also provided defendant an opportunity to request additional discovery.
After the Court's April 13 Order, defendant filed a motion for additional discovery and a motion to compel, and plaintiff filed a motion to strike. The Court ruled on those motions on May 4, 2009, and prefaced its analysis by noting that the parties had "filed numerous motions and sought the Court's intervention . . . with alarming alacrity" despite repeated reminders "that the parties amicably resolve routine discovery disputes without seeking the assistance of the Court." May 4 Order at 1. The Court then denied defendant's motion for additional discovery as premature and cumulative because it simply repeated the request made in the still-pending motion for sanctions. As to the motion to compel, the Court ordered production of plaintiff's MCAT scores and tax records since 2005. Finally, the Court clarified the scope of previously-ordered discovery and granted plaintiff's motion to strike a reply brief filed without permission by defendant.
Pursuant to the Court's April 13 Order, the parties filed supplemental memoranda supporting and opposing defendant's motion for sanctions on June 10, 2009, and June 17, 2009, respectively. Also on June 10, 2009, defendant filed a motion to strike, and on June 19, 2009, defendant filed a motion for leave to file a third supplemental memorandum. All three motions are now ripe for resolution.
The Court ordered further discovery to permit defendant to explore whether plaintiff had withheld information to conceal a pre-existing back condition or HIV/AIDS status. Before the Court's April 13 Order, defendant had argued that plaintiff had likely seen Dr. Terry Thompson for treatment of a pre-existing back injury, see Def.'s Mar. 23, 2009 Supp. Mem. at 1-2, and that plaintiff had seen Dr. Ricardo Caldera for HIV/AIDS-related treatment, see Def.'s Mem. in Support of Mot. for Sanctions at 10-11. Plaintiff's averments to the contrary were lies, defendant surmised, so sanctions were appropriate. But because the record was incomplete at the time, further discovery was warranted. If the testimony of Dr. Thompson and Dr. Caldera showed that defendant's prediction was correct, then plaintiff's withholding of their identities in the face of court orders might indeed be sanctionable.
Although the Court permitted further discovery, defendant's June 10 supplemental memorandum essentially ignores the new deposition testimony. A review of the deposition transcript shows why. Dr. Thompson testified that he treated plaintiff because of a hip strain, not because of back pain. Thompson Dep. at 48:9-20. Dr. Caldera testified that he treated plaintiff because of injuries sustained during the accident forming the basis of this case, not for any HIV/AIDS-related reasons. Caldera Dep. at 50:19-22; 67:1-7; 70:11-14. Hence, the additional discovery plainly shows that plaintiff did not intentionally fail to disclose the identities of Dr. Thompson and Dr. Caldera in order to hide a pre-existing condition.
Defendant nonetheless argues that plaintiff's motives are suspect because he has not fully complied with the Court's May 4 Order requiring the production of tax records since 2005 by May 18, 2009. In response to the Court's May 4 Order, plaintiff produced his tax return for 2008, an undated, unsigned and amended tax return for 2007, and "records of account" for 2005 and 2006. On May 12, 2009, defendant requested the actual returns for 2005 and 2006 and plaintiff requested those returns from the Internal Revenue Service the next day. See Braunstein Decl. ¶ 4. On May 20, 2009, and again on June 3, 2009, defendant requested documentation to back up more than $42,000 taken in business and medical deductions over those four years. Plaintiff provided documentation for a portion of the deductions on June 10, 2009.
Defendant's efforts to characterize plaintiff's behavior as sanctionable are unconvincing. No bad faith is discernable from the correspondence between the parties and the materials produced by plaintiff. Plaintiff's counsel responded promptly to defendant's requests and asked defendant to notify him if it believed that production was incomplete. See May 11, 2009 Letter from J. Cammarata to D.S. Schwinn; May 15, 2009 Letter from J. Cammarata to S. Allenson. Although plaintiff has apparently not yet received 2005-06 tax forms from the IRS, he timely requested those forms and the IRS's delay in providing them does not amount to sanctionable conduct by plaintiff. Nor does plaintiff's incomplete*fn2 production of back-up documentation constitute bad faith. Defendant first requested back-up documentation on May 20, 2009, two days after the deadline for production had passed. See May 20, 2009 Letter from S. Allenson to J. Cammarata.
In sum, the Court has provided defendant with ample opportunity to demonstrate that plaintiff has withheld information in bad faith. A motion that has spawned no fewer than eighteen briefs, three additional depositions, documentary discovery, and hundreds of pages of appendices has revealed no evidence to undercut plaintiff's claim that he simply forgot the names of two doctors. Nothing in the record shows that he has hidden the identities of doctors or pharmacies to hide a pre-existing condition. Accordingly, defendant's motion for sanctions is hereby DENIED.
In a final effort to persuade the Court that plaintiff has acted in bad faith and is deserving of sanction, defendant filed a motion for leave to file a third supplemental memorandum in support of its motion for sanctions. Attached to the motion is a memorandum in which defendant argues that new evidence that plaintiff applied to become a podiatric surgeon in January 2008 --after the incident at issue in this case -- somehow demonstrates that his motives were nefarious. To be sure, plaintiff's application to become a podiatric surgeon is relevant to his wage loss claim -- a ...