United States District Court, N.D. Indiana, Hammond Division, Lafayette
OPINION AND ORDER
E. MARTIN UNITED STATES DISTRICT COURT.
matter is before the Court on Plaintiffs' Motion to
Compel, [DE 39] in Pyle, 4:16-CV-98-RL-JEM; [DE 37]
in Waddell, 4:17-CV-13-PPS-JEM, filed by Plaintiffs
on January 5, 2018. Defendant filed a response on January 26,
2018. Plaintiffs did not file a reply, and the time to do so
cases, consolidated for purposes of discovery, allege
employment discrimination, harassment, and retaliation
arising under Title VII of the Civil Rights Act of 1964, as a
result of actions taken against Plaintiffs Waddell and Pyle
by their former employer, Purdue University Police
move to compel Defendant to fully respond to Plaintiffs'
discovery requests. Plaintiffs attached their requests to the
instant Motion, but have not attached Defendant's
responses. In addition, they have not provided a separate
Rule 37 certification indicating attempts to resolve the
discovery conflict without Court involvement. Defendant
argues that the failure to adequately confer dooms
Rule 37 Certification
Rule of Civil Procedure 37 provides that a motion “for
an order compelling disclosure or discovery . . . must
include a certification that the movant has in good faith
conferred or attempted to confer with the person or party
failing to make a disclosure or discovery in an effort to
obtain it without court action.” Fed.R.Civ.P. 37(a)(1).
Northern District of Indiana Local Rule 37-1 provides,
“A party filing any discovery motion must file a
separate certification that the party has conferred in good
faith or attempted to confer with other affected parties in
an effort to resolve the matter raised in the motion without
court action.” N.D. Ind. L.R. 37-1. The Court may deny
a motion to compel if it is not accompanied by a proper
do not include a separate Rule 37 certification, but do
include a section in their Motion briefly outlining attempts
to resolve the dispute. Plaintiffs indicate that they
exchanged several emails to counsel for Defendant regarding
the disputed discovery, including indicating that failure to
obtain resolution would result in the filing of a motion to
compel. Plaintiffs do not attach the correspondence, merely
summarizing its contents. The Court does not find the bare
representations of Plaintiffs to be fully satisfactory in
complying with the requirements of Federal Rule 37 and Local
Rule 37-1, but recognizing that there was at least some
attempt to confer prior to filing the instant Motion, and
noting the late stage of discovery in this case, will not
deny the Motion on those grounds.
Merits of the Motion to Compel
argue that Defendant has failed to provide discovery based on
an improperly narrow conception of comparatively situated
employees. Defendant argues that it is Plaintiffs whose
conceptions are inconsistent with prevailing case law, and
that after receiving the Motion they supplemented the
discovery such that Plaintiffs have now received most of the
information they request.
Rule of Civil Procedure 26(b)(1) permits discovery
“regarding any nonprivileged matter that is relevant to
any party's claim or defense.” Fed.R.Civ.P.
26(b)(1). Furthermore, it provides that “[r]elevant
information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Fed.R.Civ.P.
26(b)(1). Relevancy is “construed broadly to encompass
any matter that bears on, or that reasonably could lead to
other matter that could bear on, any issue that is or may be
in the case.” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v.
Taylor, 329 U.S. 495, 501 (1947)). “[A] party is
entitled to seek discovery on its theory of the facts and the
law, and is not limited in discovery by the opponent's
theory.” 8 C. Wright & A. Miller, Federal Practice
and Procedure § 2011 (3d ed. 2008); see also Shott
v. Rush Univ. Med. Ctr., No. 11 C 50253, 2013 WL
2368073, at *1 (N.D. Ill. May 29, 2013) (“In the year
2000, the scope of discovery changed from matters
‘relevant to the subject matter involved in the pending
action' to matters ‘relevant to the claim or
defense of any party.' Therefore, the pleadings now
establish what is relevant.”) (quoting Fed.R.Civ.P.
26(b)(1); citing In re Cooper Tire & Rubber Co.,
568 F.3d 1180, 1188 (10th Cir.2009); Sallis v. University
of Minn., 408 F.3d 470, 477-78 (8th Cir.2005)). A party
may seek an order to compel discovery when an opposing party
fails to respond to discovery requests or provides evasive or
incomplete responses. See Fed. R. Civ. P. 37(a). A
party objecting to the discovery request bears the burden of
showing why the request is improper. See McGrath v.
Everest Nat. Ins. Co., 625 F.Supp.2d 660, 670 (N.D. Ind.
2008). The Court has broad discretion when deciding whether
to compel discovery. See Patterson v. Avery Dennison
Corp., 281 F.3d 676, 681 (7th Cir. 2002) (citing
Packman v. Chi. Tribune Co., 267 F.3d 628, 646-47
(7th Cir. 2001); Rennie v. Dalton, 3 F.3d 1100, 1110
(7th Cir. 1993)).
their motion, Plaintiffs request that the Court compel
information related to other employees, including
investigations into allegations against them, amorous
relationships between other employees and the consequences
suffered by participants, false statements made by other
employees, and records of polygraph examinations. They argue
that this information is relevant to determining whether
there were other employees of Purdue who were similarly
situated to Plaintiffs but treated differently. See,
e.g., Majors v. Gen. Elec. Co., 714 F.3d 527, 537 (7th
Cir. 2013) (explaining that one of the tenets of the indirect
method of proof in a discrimination case is showing that a
plaintiff “was treated less favorably than similarly
situated employees who did not engage in statutorily
receiving the instant Motion, Defendant asserts that it
supplemented a number of its responses to the discovery
requests. There are two requests still outstanding:
request information regarding investigations into the conduct
of Captain Tim Potts, arguing that in at least one
investigation his testimony was determined to be not
credible, but that the discipline he received was less than
that received by Plaintiffs for their alleged falsehoods.
Defendant asserts that Plaintiffs have not identified the
investigation to which they are referring, or otherwise
limited the request. The Court agrees that the request as
written is overbroad in scope. However, to the extent that
Plaintiffs can provide any information to Defendant regarding
the subject(s) and/or time ...