
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 96-1695                      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
