DriveTime Car Sales Company, LLC v. Pettigrew (S.D. Ohio April 18, 2019) re-emphasizes the high and “stringent” standard for granting an adverse inference instruction under FRCP 37(e)(2).


In this defamation case between two airlines, the plaintiffs objected to the magistrate judge’s ruling, which prevented the plaintiff from compelling additional depositions of a third party.

The magistrate judge ruled that compelling additional depositions was “not relevant and proportional” to the litigation at issue. The plaintiff reiterated that discovery is relevant, because it was related to an essential element of their claim, and there were no other corroborating sources for the desired information.


  • Plaintiff’s Objection Granted. The district judge disagreed with and overturned the magistrate judge’s orders based on their being “contrary to law and based on erroneous factual findings.” As a result, the plaintiffs can conduct additional depositions of the third party.
  • Plaintiffs’ Original Motion Was Not Incomplete. Magistrate judge ruled that the plaintiffs’ motion was deficient because it did not (1) support their motion with “points and authorities,” and (2) serve the deposition notice properly. To the contrary, the district judge said this finding was “clearly erroneous.”
  • Court Did Have Jurisdiction Over 3rd Party. Using the 9th Circuit’s three prong test for analyzing personal jurisdiction, the court ruled that the third party had a “substantial connection” with the forum state and the third party is in close proximity to the deposition site.

David Cohen

Expert Opinion from David Cohen, Partner, Reed Smith LLP

When to object to the ruling of a Magistrate Judge requires discretion, especially if the Magistrate Judge may also be making further decisions in the case. When the ruling is sufficiently important, however, and you believe you can establish clear error, it can be time to respectfully take your shot.

Case Law Tip: 

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