The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

A Warning to Law Students and Young Lawyers

and maybe older lawyers ....


From Bassett v. Jensen (D. Mass.) today:

Magistrate Judge M. Page Kelley: … [P]laintiff's motions to compel, are denied. This case is scheduled for trial on August 12, 2021.

On November 10, 2020, Judge Saris ordered that the parties were to exchange expert reports by February 21, 2021, responses due by February 26, 2021; Daubert depositions by March 26, 2021, Daubert motions by April 9, 2021, oppositions by April 23, 2021, and motions to compel to be filed by February 5, 2021. On January 25, 2021, the parties filed a joint motion for extension of time of the deadlines, which Judge Saris granted the next day, setting out the new deadlines: disputes regarding still photos due by March 16, 2021, parties to exchange expert reports by March 18, 2021, oppositions due by April 12, 2021, motions to compel due by March 22, 2021, oppositions due by April 5, 2021, Daubert depositions due by May 10, 2021, Daubert motions due by May 24, 2021 and oppositions due by June 7, 2021.

At a hearing on November 10, 2020, when Judge Saris was setting the dates for the first schedule, above, she said to the parties: "So to the extent there's a motion to compel, you can't sit on it if you don't move or you don't do anything, I'm going to say you waived it because we really have to get this ready for trial next summer."

Judge Saris set out a comprehensive schedule encompassing all motions necessary to move this case toward trial. When asked, she promptly granted an extension of those motions. She explicitly warned the parties that if they did not meet their deadlines, particularly addressing the deadline for motions to compel, she would deem them to be waived.

The motions to compel were filed on April 14, 2021, thirty days after the court-ordered deadline. The court ordered plaintiff to file a memorandum explaining why the motions were filed when they were and she did so. Plaintiff seems to have entered into an "email stipulation" with defendant to a 21-day continuance of all the deadlines set by Judge Saris, without filing any motion with the court.

The court notes that even had this been an acceptable way of extending the deadlines, which it was not, plaintiff still exceeded the phantom deadline for filing motions to compel by two days. "[A] litigant who ignores a case-management deadline does so at his peril." Rosario-Diaz v. Gonzalez, 140 F.3d 312, 316 (1st Cir. 1998). The motions are untimely and are denied.

I don't know anything about the case, and, as the Krylov fable goes, "Who is right and who is wrong, is not for us to judge"; but I thought it was useful to have a bit of a window into what can sometimes happen.