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1

 Because the Court finds that this matter can be decided on the parties’ memoranda,

declarations, and exhibits, and because the Court previously heard oral argument on similar

issues, defendants’ request for oral argument is denied.

ORDER DENYING

MOTION TO DISMISS - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PETER TILTON, 

Plaintiff,

v.

THE MCGRAW-HILL COMPANIES, INC.,

et al.,

Defendants.

Case No. C06-0098RSL

ORDER DENYING

MOTION TO DISMISS

I. INTRODUCTION

This matter comes before the Court on a motion to dismiss filed by defendants the

McGraw-Hill Companies, Inc. and Michelle Conlin (collectively, “defendants”).1

 (Dkt. #125). 

Defendants argue that dismissal is warranted because plaintiff committed discovery misconduct

in the past, the Court sanctioned him and warned him that additional misconduct could result in

dismissal, and plaintiff subsequently withheld responsive documents. Plaintiff counters that the

documents, while responsive to discovery requests, were created after the December 15, 2006

discovery deadline, so he was not required to produce them.

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ORDER DENYING

MOTION TO DISMISS - 2

For the reasons set forth below, the Court denies the motion. 

II. DISCUSSION

Defendants argue that dismissal is warranted in part because plaintiff has engaged in

discovery misconduct in the past in this case. On September 28, 2006, after plaintiff refused to

attend his deposition, the Court admonished him that he was obligated to participate in discovery

and warned that sanctions might be imposed if he refused to do so. On March 9, 2007, the

Court sanctioned plaintiff for destroying e-mails, withholding documents, threatening the

physician who performed an independent medical examination, and attempting to intimidate

Microsoft witnesses and extort money from the company. That order “strongly cautioned”

plaintiff “that any further misconduct may result in dismissal and/or other sanctions.” (Dkt.

#117). 

On April 24, 2007, defendants served a document subpoena on plaintiff’s psychiatrist,

Dr. Wolf, after learning that he had resumed treating plaintiff. In response, Dr. Wolf produced

nearly 200 pages of documents, many of which were e-mails between plaintiff and Dr. Wolf,

and between plaintiff and his ex-wife, his children, and his parents. It is undisputed that

defendants’ requests for production were broad enough to include those communications. The

issue is whether plaintiff was required to produce the e-mails given the timing of their creation.

As an initial matter, defendants argue in their memoranda that plaintiff failed to produce

e-mails he created prior to the close of discovery. Certainly, plaintiff was required to produce

any responsive documents created prior to the discovery deadline, even if they were created after

he had responded to the discovery requests. However, Dr. Wolf’s file does not include any

communications created prior to the close of discovery. Defendants have not cited or provided

any such documents to the Court. Accordingly, based on the current record, the Court cannot

conclude that plaintiff withheld additional e-mails created prior to the discovery deadline. 

However, plaintiff’s ex-wife’s statement that she had received “500+ e-mails” from plaintiff

raises serious questions about whether some of those e-mails were sent prior to the discovery

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2

 Given the quickly approaching trial date and the fact that the parties have already

extensively briefed the issue, the Court would consider the motion on an expedited basis. 

Defendants may file and note any such motion pursuant to Local Rule 7(d)(2). 

ORDER DENYING

MOTION TO DISMISS - 3

deadline. Declaration of Gavin Skok, (Dkt. #126) (“Skok Decl.”), Ex. O. Even though

discovery is now closed, defendants may subpoena such communications from plaintiff’s exwife. If her production contains communications sent by plaintiff prior to the discovery deadline

but not produced, defendants may again move to dismiss.2

The Court therefore considers whether plaintiff was required to produce e-mails he

created after the discovery deadline passed. Plaintiff argues that there is no duty to supplement

with documents created after the discovery deadline. Resolution of this issue is far from clear.

On one hand, the general instructions to the discovery requests state, “If there are any additions,

deletions, or changes in the answers or information provided at any time prior to trial, you are

specifically requested to so inform these defendants. If additional documents are discovered

between the time of providing these responses and the time of trial, these requests for production

are directed to that information.” Skok Decl., Ex. D. Also, the Advisory Committee Notes on

the 1993 Amendment to Federal Rule of Civil Procedure 26(e) state, “Supplementation should

be made with special promptness as the trial date approaches,” suggesting that the duty

continues up to the time of trial. On the other hand, the applicable Federal Rule of Civil

Procedure does not appear to require supplementation of documents created after the close of

discovery under these circumstances: 

A party who has . . . responded to a request for discovery with a disclosure or response is

under a duty to supplement or correct the disclosure or response to include information

thereafter acquired . . . in the following circumstances:

(1) A party is under a duty to supplement at appropriate intervals its [initial

disclosures] if the party learns that in some material respect the information 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. . . .

(2) A party is under a duty seasonably to amend a prior response to a . . . request

for production . . . 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

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ORDER DENYING

MOTION TO DISMISS - 4

been made known to the other parties during the discovery process. 

Fed. R. Civ. P. 26(e). Defendants have not shown that plaintiff’s initial disclosures or discovery

responses were incomplete or incorrect. Also, the parties are not subject to any court order

requiring them to produce documents created after the discovery deadline. Neither party has

produced any authority directly on point; none of the cases they cited involved documents

created after the close of discovery. Although defendants argue that plaintiff agreed to

supplement his production, he did not state that he would provide documents created after the

deadline.

The Court need not decide at this point whether plaintiff was required to produce the emails he created after the close of discovery. Instead, because the applicable authority is scant

and fairly debatable, plaintiff’s conduct is not sanctionable. 

Finally, because the parties have not raised the issue, the Court does not consider the

admissibility of the e-mails. If necessary, the parties may raise that issue at the appropriate time.

III. CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss (Dkt. #125) is DENIED.

 

DATED this 30th day of October, 2007.

A

Robert S. Lasnik

United States District Judge

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