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Reed v. Bowen

United States District Court, S.D. Indiana, Terre Haute Division

August 10, 2017

ANTHONY WAYNE REED, Plaintiff,
v.
MARK J. BOWEN, JASON SLODERBECK, BENSON, J. MILLER, Defendants.

          ENTRY DISCUSSING PLAINTIFF'S MOTION TO COMPEL

          HON. WILLIAM T. LAWRENCE, JUDGE

         Plaintiff Anthony Reed has filed a motion to compel asserting that the defendants are not complying with his discovery requests. More specifically, Mr. Reed states that the defendants failed to respond to request numbers 10, 11, 14, 15, and 24 in his request for production of documents. He alleges that in response to his effort to resolve the discovery dispute pursuant to Federal Rules of Civil Procedure Rule 37, the defendants did not provide the requested information and instead offered excuses. Dkt. 42.

         The defendants responded to the plaintiff's motion to compel arguing that, to the extent possible, they responded sufficiently to the petitioner's discovery requests.

         The parties are reminded that the overall purpose of discovery under the Federal Rules of Civil Procedure is to require the disclosure of all relevant information so that the ultimate resolution of disputed issues in any civil action may be based on a full and accurate understanding of the true facts, and therefore embody a fair and just result. See United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958); see also Epstein v. MCA, Inc., 54 F.3d 1422, 1423 (9th Cir. 1995) (“wide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for the truth”). Discovery in civil litigation is intended to be an essentially cooperative, self-regulating process for which the parties would take responsibility, with little judicial intervention required. See Edward D. Cavanagh, The August 1, 1983 Amendments to the Federal Rules of Civil Procedure: A Critical Evaluation and a Proposal for More Effective Discovery Through Local Rules, 30 Vill. L. Rev. 767, 775 & n.34 (1985).

         The underlying theme in Mr. Reed's motion to compel is that he is seeking information that the defendants contend they do not have. The motion to compel, [dkt. 42], is granted in part and denied in part consistent with the following:

1. In request number 10, Mr. Reed requested that the defendants:
a): REQUEST # 10: Produce any and all documents) created in relation to the plaintiffs missing property items, that were in defendant Miller's custody and control, on the morning of January 23, 2015; And any other related documents, to the plaintiff's missing property items, produce all documents). In this request,

[Dkt. 43]. In his declaration in support of motion to compel, Mr. Reed clarifies with respect to request number 10 that the defendants must have in their possession proof that they mailed his documents to him at the Branchville Correctional Facility. He contends that U.S. Postal documents were created (and exist) as a result of such mailing.

         The defendants respond by stating they did mail documents to Mr. Reed at the Branchville Correctional Facility but the envelope was not mailed by certified mail so proof of mailing documents do not exist. [Dkt. 44-1]. The Court cannot compel the production of information that does not exist. See Hagemeyer N. Am., Inc. v. Gateway Data Scis. Corp., 222 F.R.D. 594, 598 (E.D.Wis. 2004) (“A party need not produce documents or tangible things that are not in existence or within its control. It is sufficient that the discovered party respond by saying that a document or tangible thing is not in existence.”). It is common knowledge that the mailing of documents through the mail does not always generate proof of such mailing. The defendants assert they mailed these documents to Mr. Reed by U.S. mail only and no proof exists. This response is sufficient. The motion to compel with respect to request for production number 10 is denied.

         2. In request number 11, Mr. Reed requested that the defendants:

b): REQUEST# 11: Produce the "Inventory Property List" and, any other related documents created, taken of the plaintiff's property items prior to, the plaintiffs being transported beck to Indiana Department of Correctfons-"returning facility", on the morning of January 23, 2015; In this Request, I clearly informed (and Testified

[Dkt. 43].

         The defendants respond that no property inventory list was created with regard to the small envelope of papers and other unspecified property because Mr. Reed was brought to the Hamilton County Jail from the Branchville Correctional Facility and would not have been able to bring items other than clothing with him. For these reasons, the defendants did not create a property inventory list. However, with respect to his clothing, an inventory report was created and provided to Mr. Reed. [Dkt. 44-1; 44-2, at pp. 4-6]. The defendants provided Mr. Reed with ...


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