Too-Late Motion to Compel Denied, and No Sanctions Either

Enzo Biochem, Inc. et al. v. PerkinElmer, Inc. et al.

Case Number: 1:03-cv-03817-RJS (Dkt. 157)

Judge Sullivan denied Enzo’s motion to compel production of documents apparently unavailable after PerkinElmer modified its data-storage system. First, it was not clear from the parties’ joint submission that the requested documents exist, and in any event Enzo’s request was untimely as it was made weeks after discovery closed. Further, noting that the information Enzo sought might be able through other vendors or the use of specialized software, the court denied Enzo’s request for sanctions as untimely:

Enzo was informed about the potential unavailability of evidence on January 14, 2014 - or at the latest January 25, 2014 - and Enzo waited nearly a month to bring this issue to the Court's attention, even though the Court had set a trial date of March 18, 2014. Accordingly, Enzo has failed to make a case for sanctions and its motion is denied.

In a related order issued the same day, Judge Sullivan rejected PerkinElmer’s letter-request for “guidance” (a request that the court characterized as a motion to reconsider) as being an untimely discovery dispute.

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