United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. Rodovich United States Magistrate Judge.
matter is before the court on the Motion to Compel Discovery
Responses [DE 36] filed by the defendant, Officer G. Viator,
on August 21, 2017. For the following reasons, the motion is
plaintiff, Damon Clemons, initiated this matter on October
11, 2016, in the Lake Superior Court, State of Indiana. The
matter was removed to this court on January 11, 2017. On June
7, 2017, Officer Viator served Clemons with Interrogatories,
Request for Production of Documents, Expert Interrogatories,
and Expert Request for Production of Documents and
Authorizations. Officer Viator has indicated that he has not
received a response to any of the requests.
to Local Rule 37-1, Officer Viator filed a certification
indicating that his counsel attempted to resolve this
discovery dispute with Clemons' counsel before requesting
court intervention. Specifically, to resolve the present
dispute Officer Viator has indicated that on August 2, 2017,
his counsel spoke with Clemons' counsel regarding the
responses to the outstanding written discovery. The parties
agreed to extend the deadline until August 11, 2017. On
August 17, 2017, counsel for Officer Viator left a detailed
voicemail message for Clemons' counsel. Although,
Clemons' counsel indicated that he would provide
discovery responses by August 11, 2017, Officer Viator has
indicated that he has not received responses to the
outstanding discovery requests. Clemons has not objected to
this motion, and the time to do so has passed.
may “obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
party, including the existence, description, nature, custody,
condition and location of any books, documents, or other
tangible things.” Federal Rule of Civil Procedure
26(b)(1). For discovery purposes, relevancy is construed
broadly to encompass “any matter that bears on, or that
reasonably could lead to other matter[s] that could bear on,
any issue that is or may be in the case.” Chavez v.
DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind.
2002) (quoting Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253
(1978)). Even when information is not directly related to the
claims or defenses identified in the pleadings, the
information still may be relevant to the broader subject
matter at hand and meet the rule's good cause standard.
Borom v. Town of Merrillville, 2009 WL 1617085, at
*1 (N.D. Ind. June 8, 2009) (citing Sanyo Laser Prods.,
Inc. v. Arista Records, Inc., 214 F.R.D. 496, 502 (S.D.
Ind. 2003)); see Adams v. Target, 2001 WL 987853, at
*1 (S.D. Ind. July 30, 2001) (“For good cause, the
court may order discovery of any matter relevant to the
subject matter involved in the action.”); Shapo v.
Engle, 2001 WL 629303, at *2 (N.D. Ill. May 25, 2001)
(“Discovery is a search for the truth.”).
may seek an order to compel discovery when an opposing party
fails to respond to discovery requests or has provided
evasive or incomplete responses. Federal Rule of Civil
Procedure 37(a)(2)-(3). The burden “rests upon the
objecting party to show why a particular discovery request is
improper.” Gregg v. Local 305 Ibew, 2009 WL
1325103, at *8 (N.D. Ind. May 13, 2009) (citing Kodish v.
Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447,
449-50 (N.D. Ill. 2006)); McGrath v. Everest Nat. Ins.
Co., 2009 WL 1325405, at *3 (N.D. Ind. May 13, 2009)
(internal citations omitted); Carlson Rests. Worldwide,
Inc. v. Hammond Prof'l Cleaning Servs., 2009 WL
692224, at *5 (N.D. Ind. March 12, 2009) (internal citations
omitted). The objecting party must show with specificity that
the request is improper. Cunningham v. Smithkline
Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009) (citing
Graham v. Casey's Gen. Stores, 206 F.R.D. 253,
254 (S.D. Ind. 2002)). That burden cannot be met by “a
reflexive invocation of the same baseless, often abused
litany that the requested discovery is vague, ambiguous,
overly broad, unduly burdensome or that it is neither
relevant nor reasonably calculated to lead to the discovery
of admissible evidence.” Cunningham, 255
F.R.D. at 478 (citing Burkybile v. Mitsubishi Motors
Corp., 2006 WL 2325506, at *6 (N.D. Ill. Aug. 2, 2006))
(internal quotations and citations omitted). Rather, the
court, under its broad discretion, considers “the
totality of the circumstances, weighing the value of material
sought against the burden of providing it, and taking into
account society's interest in furthering the
truth-seeking function in the particular case before the
court.” Berning v. UAW Local 2209, 242 F.R.D.
510, 512 (N.D. Ind. 2007) (examining Patterson v. Avery
Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002))
(internal quotations and citations omitted); see Hunt v.
DaVita, Inc., 680 F.3d 775, 780 (7th Cir. 2012)
(explaining that the district court has broad discretion in
did not respond or object to the motion. Therefore, he did
not meet his burden to demonstrate that the requested
discovery is improper. Further, the court finds that the
requested information is relevant to Officer Viator's
claims and that he attempted in good faith to resolve this
discovery dispute before requesting court intervention
pursuant to Local Rule 37-1.
great operative principle of Rule 37(a)(5) is that the loser
pays.” Charles Alan Wright et al., 8B
Federal Practice and Procedure Civil § 2288 at 787
(3d ed. 2014). “Fee shifting when the judge must rule
on discovery disputes encourages their voluntary resolution
and curtails the ability of litigants to use legal processes
to heap detriments on adversaries (or third parties) without
regard to the merits of the claims.” Rickels v.
City of South Bend, Ind., 33 F.3d 785, 787 (7th Cir.
1994). Any loser may avoid payment by showing that his
position was substantially justified. Rickels, 33
F.3d at 787. The failure to disclose is sanctionable and
properly remedied by an order compelling discovery. Federal
Rules of Civil Procedure 37(a)(3)(B), (a)(4), (a)(5);
Lucas v. GC Services, L.P., 226 F.R.D. 328, 329-30
(N.D. Ind. 2004). Federal Rule 37(a)(5)(A) states that the
court shall require sanctions based upon the costs of seeking
a motion to compel. See Stookey v. Teller Training
Distribs., Inc., 9 F.3d 631, 637 (7th Cir. 1993) (citing
the prior section number) (“Rule 37(a)(4) clearly
allows for an award of the expenses incurred in obtaining an
order to compel, including attorney's fees.”).
Sanctions under Rule 37(a)(5) are appropriate unless the
movant filed the motion without attempting in good faith to
obtain the discovery without court action, the party's
nondisclosure was “substantially justified, ” or
other circumstances make an expense award unjust. Federal
Rule of Civil Procedure 37(a)(5)(A). In addition, Federal
Rule 37(c)(1) states that a party who fails to disclose,
provides false or misleading disclosure, or refuses to admit
information required by Rule 26(a) without “substantial
justification” may be sanctioned unless such failure
was “harmless.” Musser v. Gentiva Health
Servs., 356 F.3d 751, 755 (7th Cir.2004). Thus, Rule
37(a) is a fee-shifting rule, and the loser must pay unless
it demonstrates that the movant filed the motion before
attempting to obtain the discovery in good faith without
court action, its position was “substantially
justified, ” or other circumstances make an expense
Clemons did not respond to the motion to compel, he did not
demonstrate that Officer Viator filed his motion before
attempting to obtain the discovery in good faith, that his
position was substantially justified, or that other
circumstances make an expense award unjust.
on the foregoing reasons, the Motion to Compel Discovery
Responses [DE 36] is GRANTED. Clemons is
ORDERED to provide full and complete
responses to the Interrogatories, Request for Production of
Documents, Expert Interrogatories, and Expert Request for
Production of Documents and Authorizations within fourteen
days of this order. Officer Viator ...