

                      [NOT FOR PUBLICATION]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  &amp; 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
