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Littler v. Watkins

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

September 20, 2017

PHILLIP LITTLER, Plaintiff,
v.
JEAN WATKINS, ROBERT CARTER, RICHARD BROWN, Defendants.

          ENTRY DISCUSSING PLAINTIFF'S MOTION TO COMPEL

          Hon. William T. Lawrence, Judge.

         Plaintiff Phillip Littler has filed a motion to compel, Dkt. No. 80, asserting that the defendants' responses to his discovery requests were late and inadequate. 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). First, the defendants' discovery responded were not late. They sought and were granted two extensions of time to respond to discovery. Dkt. Nos. 68, 74. As such, their responses were not late.

         Second, Mr. Littler's motion to compel, Dkt. No. 80, is denied consistent with the following:

         1. In request number 1, Mr. Littler request the defendants' policy regarding offender correspondence (defendants' response is included):

REQUEST NO. 1; Indiana Department of Correction Policy and Procedure #02-01-103 "Offender Correspondence"; including signature page.
RESPONSE: Objection. Defendants object to the request as it seeks documents that are already in the possession of Plaintiff. Subject to and without waiving the foregoing, please see the enclosed documents identified as Response to RFP No. 1. No such signature page for this policy exists in Defendants' possession.

         In his motion to compel, Mr. Littler states that he does not possess the signature page. Dkt. No. 80, p. 3. The defendants respond to the motion by saying that policies do not require a signature page. Dkt. No. 89, p. 6. 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.”). The defendants assert a signature page does not exist. This response is sufficient. The motion to compel with respect to request for production number 1 is denied.

         2. In request number 3, Mr. Littler requested from the defendants (defendants' response is included):

REQUEST NO. 3: Copies of the letters from my cousin that were confiscated by the Defendants.
RESPONSE: Objection. Defendants object to the request as giving Plaintiff the confiscated letter undermines Defendants' entire defense. Defendants object to the request as it seeks documents that are restricted from Plaintiffs access due to safety and security reasons. Subject to and without waiving the foregoing, no such documents exist in Defendants' possession.

Dkt. No. 80-1, p. 8. The defendants responded to the motion to compel that the letters in issue were destroyed. Again, the Court cannot compel the production of information that does not exist. See Gateway Data Scis. Corp., 222 F.R.D. at 598 (“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”). The defendants assert the letters were destroyed. Dkt. No. 89, p. 4. This response is sufficient. The motion to compel with respect to request for production number 3 is denied.

         3. In request number 6, Mr. Littler requested from the defendants (defendants' response is included):

REQUEST NO. 6: All e-mails generated by Indiana Department of Correction staff members referencing, in whole or in part, ...

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