Cox v. O'Malley ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1695
LAROY D. COX,
Plaintiff, Appellant,
v.
PETER J. O'MALLEY, MILLER THOMAS, TRENT W. HOLLAND,
WILLIAM DUNN, FRANCIS M. ROACHE AND
CITY OF BOSTON,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert B. Collings, U.S. Magistrate Judge]
Before
Cyr, Circuit Judge,
Aldrich and Campbell, Senior Circuit Judges.
Valeriano Diviacchi, with whom Diviacchi Law Office was on brief
for appellant.
Kimberly M. Saillant, with whom Merita A. Hopkins was on brief
for appellees City of Boston and Roache.
Ronald Kovner, with whom Merita A. Hopkins and Christopher J.
Muse were on brief for appellees O'Malley, Thomas and Holland.
Thomas Drechsler for appellee Dunn.
January 22, 1997
Per Curiam. Plaintiff Laroy Cox challenges a district
Per Curiam.
court ruling denying relief from a judgment dismissing his claim
for damages against the City of Boston and various members of its
police department. See 42 U.S.C. 1983; Mass. Gen. L. ch. 12,
11I. The claim arose out of Cox's interrogation during the
Boston Police investigation of the Carol Stewart homicide. The
principal thrust of the Cox appeal is that counsel for defendants
failed to produce some 900 pages of material from the Boston
Police Department Internal Affairs Division ("IAD") which were
properly requested during pretrial discovery. As the district
court did not abuse its discretion, see Anderson v. Cryovac,
Inc., 62 F.2d 910, 923 (1st Cir. 1988), we affirm.
The record discloses that Cox's counsel knew, well
before trial, that the IAD files existed; in fact, counsel so
conceded in the motion for reconsideration filed below. More-
over, in a pretrial letter mailed June 1, 1995, the City of
Boston offered to provide the IAD files to Cox's counsel, but the
offer was declined. Thus, Cox has not explained how the prof-
fered IAD files can have been evidence "newly discovered" after
the entry of judgment, let alone evidence not discoverable in the
exercise of due diligence. See Fed. R. Civ. P. 60(b)(2).
Cox nonetheless contends that his Rule 60(b)(2) motion
should have been granted because defendants had an ongoing duty
to supplement their discovery responses. See Fed. R. Civ. P.
2
26(e).1 This contention reduces to a claim that a responding
party's alleged failure to supplement its document production
excuses the proponent of a Rule 60(b)(2) motion from demonstrat-
1Rule 26(e) provides as follows:
"(e) Supplementation of Disclosures and Re-
Supplementation of Disclosures and Re-
sponses. A party who has made a disclosure
sponses
under subdivision (a) or responded to a re-
quest for discovery with a disclosure or
response is under a duty to supplement or
correct the disclosure or response to include
information thereafter acquired if ordered by
the court or in the following circumstances:
(1) A party is under a duty to
supplement at appropriate intervals
its disclosures under subdivision
(a) if the party learns that in
some material respect the informa-
tion disclosed is incomplete or
incorrect and if the additional or
corrective information has not
otherwise been made known to the
other parties during the discovery
process or in writing. With re-
spect to testimony of an expert
from whom a report is required
under subdivision (a)(2)(B) the
duty extends both to information
contained in the report and to in-
formation provided through a depo-
sition of the expert, and any addi-
tions or other changes to this in-
formation shall be disclosed by the
time the party's disclosures under
Rule 26(a)(3) are due.
(2) A party is under a duty
seasonably to amend a prior re-
sponse to an interrogatory, request
for production, or request for
admission if the party learns that
the response is in some material
respect incomplete or incorrect and
if the additional or corrective
information has not otherwise been
made known to the other parties
during the discovery process or in
writing."
3
ing that he did not know the files existed and could not have
discovered them through due diligence in time to move for a new
trial under Rule 59(b). This contention not only lacks case
support, but runs directly counter to the plain language of Rule
60(b)(2), requiring a showing by the movant that the evidence in
question was "newly discovered [and] by due diligence [on
movant's part] could not have been discovered in time to move for
a new trial under Rule 59(b) . . . ." Fed. R. Civ. P. 60(b)(2).
As Cox's counsel knew of the existence of the IAD files, and in
the exercise of due diligence could have discovered their con-
tents as well, we reject the Rule 60(b)(2) claim as frivolous.
Cox fares no better with his Rule 60(b)(3) claim. As
he did not move to compel production of the IAD files after
defendants objected to their production,2 defendants were never
obligated to produce them. See Fed. R. Civ. P. 45(c)(2)(B). The
trial transcript plainly indicates that defendants made no
misrepresentations or misleading statements regarding the IAD
files. Rather, defendants represented to Cox's counsel at trial
that he had been provided with the entire homicide file.3 Given
2On January 13, 1994, defendants City of Boston and Francis
Roache objected to Cox's pretrial request to produce the IAD
files, based on a Sept. 20, 1993 stay order issued by the Massa-
chusetts Appeals Court in Globe Newspaper Co. v. Police Cmm'r of
the City of Boston.
3At trial, Cox's counsel moved to compel production of an
eleven-page statement by Detective O'Malley. The next day the
City of Boston produced the document and stated that it "came out
of the Internal Affairs file of the Boston Police department."
Cox's counsel neither asked about the rest of the IAD file, nor
inquired whether it contained other documents.
4
that counsel for the City of Boston had made a pretrial offer on
June 1, 1995, to produce all IAD files,4 this written notifica-
tion substantially met its obligations under Rule 26(e), see Fed.
R. Civ. P. 26(e)(2) ("A party is under a duty seasonably to amend
a prior response to [a] . . . request for production . . . if the
additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in
writing.") (emphasis added). Having spurned the City of Boston's
offer to produce the IAD files, Cox cannot plausibly maintain
that the district court abused its discretion in rejecting his
belated request for relief from judgment. See United States
Fidelity & Guar. Co. v. Baker Material Handling Corp., 62 F.3d
24, 29 (1st Cir. 1995) ("A party may not prevail on a Rule
60(b)(3) motion . . . where [it] has access to disputed informa-
tion or has knowledge of inaccuracies in an opponent's represen-
tations at the time of the alleged misconduct.").
The district court judgment is affirmed and costs are
awarded to appellees City of Boston and Francis M. Roache.
SO ORDERED.
SO ORDERED
4After the Supreme Judicial Court vacated the stay, see
supra note 2, on April 5, 1995, the City of Boston notified Cox's
attorney in writing that pursuant to the SJC decision in Globe
Newspaper Co., it was willing to produce the IAD documents.
5