Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Buskirk v. Wiles

United States District Court, S.D. West Virginia, Huntington Division

December 6, 2016

KENNETH RAY BUSKIRK, Plaintiff,
v.
DANIEL WILES, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Omar J. Aboulhosn United States Magistrate Judge.

         Pending before the Court is Plaintiff's “Motion to Compel the Production of Discovery Material” (Document No. 42), filed on October 28, 2016. Having thoroughly considered the issues raised by this Motion, the undersigned concludes that Plaintiff's Motion (Document No. 42) should be granted in part and denied in part.

         STANDARD

         The Federal Rules of Civil Procedure contemplate that in conjunction with disclosure, civil discovery is a process of elucidation and clarification of facts and circumstances relevant to claims and defenses as presented in pleadings through which the claims and defenses are validated, defined and shaped and issues are sharpened and refined for consideration at the dispositive motion stage and trial of a civil case. The civil discovery process is to be engaged in cooperatively. Violation of the Rules undermines the process.

         Rule 26(b)(1) of the Federal Rules of Civil Procedure provides as follows:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to the relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

         Although the Rule 26(b) was recently amended to remove language permitting the discovery of “any matter relevant to the subject matter involved in the action” and “relevant information . . . reasonably calculated to lead to the discovery of admissible evidence, ” the Rule still contemplates the discovery of information relevant to the subject matter involved in the action as well as relevant information that would be inadmissible at trial. See Advisory Committee Notes to 2015 Amendment, Fed.R.Civ.P. 26(b)(1). As stated above, the recent amendment further provides that discovery must be proportional to the needs of the case by considering certain factors. Thus, Rule 26(b) “cautions that all permissible discovery must be measured against the yardstick of proportionality. Lynn v. Monarch Recovery Management, Inc., 285 F.R.D. 350, 355 (D. Md. 2012)(citation omitted).

         When parties request relevant nonprivileged information in a Request for Production or Inspection of Documents under Rule 34, “[t]he party to whom the request is directed must respond in writing . . ..” Fed.R.Civ.P. 34(b)(2)(A). Federal Rule of Civil Procedure 34(b)(2)(B) and (C) provide as follows:

(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.
(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

         Thus, objections to Rule 34 requests must be stated specifically and boilerplate objections regurgitating words and phrases from Rule 26 are completely unacceptable. Frontier-Kemper Constructors, Inc., v. Elk Run Coal Company, Inc., 246 F.R.D. 522, 528 - 529 (S.D.W.Va. 2007).

         Federal Rule of Civil Procedure 37(a)(1) provides that if a party fails to cooperate in discovery, “[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Rule 37(a)(4) provides that an incomplete answer or response “must be treated as a failure to . . . answer, or respond.” Rule 37 (a)(5)(A) - (C) provide as follows:

(A) If the Motion is Granted (or Disclosure or Discovery is Provided After Filing). If the motion is granted - or if the disclosure or requested discovery is provided after the motion was filed - the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
(B) If the Motion is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
(C) If the Motion is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses of the motion.

         ANALYSIS

         A. Failure to Meet and Confer:

         First, Defendants argue that Plaintiff's Motion to Compel should be denied because Plaintiff failed to meet and confer with Defendants as required by Rule 37(a)(1). (Document No. 44, p. 4.) Rule 37 of the Federal Rules of Civil Procedure provides that if a party fails to answer a Request for Production, the discovering party may move for an Order compelling the production. See Fed.R.Civ.P. 37(a)(3)(B). Additionally, the Rule requires a certification “that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed.R.Civ.P. 37(a)(1). This Court's Local Rules provide in greater detail that “each party shall make a good faith effort to confer in person or by telephone to narrow the areas of disagreement to the greatest extent possible.” See L. R. Civ. P. 37.1(b); also see Frontier-Kemper Constructors, Inc., supra, 246 F.R.D. 522, 526 (S.D.W.Va. 2007)(“[I]t is mandatory for parties to meet and confer in person or by telephone prior to filing a motion to compel . . .”); Wilson v. Liberty Insurance Underwriters, Inc., 2008 WL 2074040 (S.D.W.Va. May 15, 2008)(“If a party only requests additional time, and fails to raise the issue at the heart of the dispute, then the meeting and conference is a waste of time, paying only lipservice to the Rule's requirement.”) In the instant case, there is no indication that the parties ever met and conferred regarding the heart of the discovery dispute. The undersigned, therefore, finds that the parties never met and conferred in person or by telephone concerning the actual issues in dispute in an attempt to obtain the discovery material without Court action. Although Plaintiff failed to meet and confer prior to filing his Motion to Compel, the Court finds that such failure does not result in the denial of the Motion to Compel. See Frontier-Kemper Constructors, Inc., supra, 246 F.R.D. at 526(“While it is mandatory for parties to meet and confer in person or by telephone prior to filing a motion to compel, the Federal Rules of Civil Procedure and the Local Rules do not provide that failure to meet and confer automatically results in denial of the motion. Rather, the sanction for failing to meet and confer is the denial of a request for expenses incurred in making a motion, including attorney's fees.”) Accordingly, the undersigned will consider the merits of Plaintiff's Motion to Compel.

         B. Request for Production of Documents No. 1.

         REQUEST FOR PRODUCTION NO. 1. Officer statements pertaining to incident.

RESPONSE: Defendants object to this request on the grounds that the same is vague, ambiguous and susceptible to multiple interpretations which prevents Defendants from submitting a formal response hereto. Due to the vagueness of this request, Defendants reserve and incorporate herein objection to the extent this request calls for information that is subject to the attorney-client privilege, the work product doctrine, or both.
Without waiving, please see the following:
(a) HPD Use of Force Report;
(b) CAD Call Info Sheet;
(c) HPD Incident - Offense ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.