UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Tanja Gavrilovic

v. Civil No. 05-cv-428-PB

Worldwide Language Resources, Inc.

REPORT AND RECOMMENDATION

 Defendant seeks a contempt order under Fed. R. Civ. P.

45(e) for an alleged failure by REEP, Inc. to comply with a

subpoena and the court’s order of November 8, 2005. REEP objects

and requests sanctions. 

Background

It is clear that there is a deep-seeded enmity between the

principals of defendant and of REEP. Using the vehicle of a

sexual discrimination/sexual harassment suit against it,

defendant served a very broad subpoena on REEP’s resident agent

for service of process. Some of the documents sought are of

questionable relevance. The subpoena called for production on

July 20, 2005. Despite any legitimate objections it might have

had, REEP (1) did not comply with the subpoena, (2) made no

substantive objections, and (3) failed to seek a protective order

by July 20th as required by the Federal Rules of Civil Procedure. 

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1While I have not been a member of the firm since 1995, my

estate planning counsel is a member of the McLane firm and I

2

Although the resident agent is an attorney, in his July 20,

2005 letter complaining of defective service he makes it clear

that he was not representing REEP as counsel with respect to the

subpoena. A month late, on August 16, 2005, counsel for REEP

orally asserted some general objections to the subpoena including

that the discovery sought was burdensome, lacked relevance and

sought privileged documents. No privilege log was produced. 

Furthermore, until the motion to compel was filed on October 21,

2005, REEP failed to produce a single responsive document despite

its promise to produce documents responsive to request nos. 3, 4,

14, 16, 20, 21, 22 and part of 28. 

The first written objections to the subpoena came in the

form of the objection to the motion to compel - served a full

four months after the date for production called for in the

subpoena. While the Federal Rules make some provision for

tardiness (see Fed. R. Civ. P. 6(b)) and while some tardiness, on

motion, could have been excused, I deemed the four month delay as

excessive and the objections as too little and too late. 

Therefore, the motion to compel was granted. 

When my former law firm1 appeared the file was transferred

Case 1:05-cv-00428-PB Document 19 Filed 04/18/06 Page 2 of 5
obviously necessarily recuse myself from their cases.

3

to Judge Barbadoro to rule on the motion for reconsideration. 

While an objection to an order of a magistrate judge

automatically transfers the file to an Article III Judge for

ruling, (see Fed. R. Civ. P. 72(a) and (b)), a motion for

reconsideration does not have that effect. Judge Barbadoro

denied the Motion for Reconsideration on December 8, 2005. REEP

in fact had produced 268 pages of documents and responded to the

subpoena point by point contemporaneously with the filing of its

motion for reconsideration. After the denial of the motion for

reconsideration, REEP produced another 3,300 pages of documents

on December 29, 2005 thus complying with LR 37.1(b)’s requirement

of production within ten (10) days. 

Defendant was subsequently given by an ex REEP employee four

emails from the period June 16, 2003 to August 29, 2003. These

emails were between Brian Remmey and REEP’s president and are

responsive to the subpoena. Despite the fact that New Hampshire

counsel has appeared for defendant and that he is well aware of

New Hampshire practice, he made no effort to telephone, email or

mail REEP’s counsel to determine why these responsive emails had

not been produced. Given the depth of the litigants’ dislike for

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each other, client pressure may be the reason for that failing of

New Hampshire etiquette. However, there is no excuse for defense

counsel’s failure to comply with LR 7.1(c). Defense counsel

neither contacted REEP’s counsel nor filed the required

certification. 

Had defense counsel followed the courtesies of New Hampshire

practice or, at least the Local Rules of this court, he would

have found out that REEP did not have possession of these

documents and therefore could not produce them. See unrefuted

affidavit of Kenneth E. Fortune. Document no. 9.1. The computer

and server that had once contained them were no longer available

to REEP. The motion for contempt is without any basis. It was

also filed in violation of LR 7.1(c). I therefore recommend that

the motion for contempt (document no. 7) be denied. REEP is

entitled to recover its reasonable fees incurred in objecting to

the motion for contempt since the motion is without merit and was

filed without the consultation mandated by the rules. 

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

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Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 18, 2006

cc: Thomas J. Donovan, Esq.

 Robert E. McDaniel, Esq.

 Jeffrey A. Meyers, Esq.

 Alexander J. Walker, Esq.

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