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Washington v. Tovo

United States District Court, N.D. Indiana, Hammond Division

May 9, 2018



          Andrew P. Rodovich, United States Magistrate Judge

         This matter is before the court on the Motion to Compel Expert Disclosures [DE 17] filed by the defendant, Jacob Tovo, on January 30, 2018, and the Motion to Strike [DE 21] filed by the plaintiff, Sheila Washington, on February 7, 2018. For the following reasons, the Motion to Compel Expert Disclosures [DE 17] is GRANTED, and the Motion to Strike [DE 21] is DENIED.


         Sheila Washington initiated this matter on March 22, 2017. She has alleged that she suffered injuries from a car accident that occurred on April 10, 2015. Washington has claimed that the defendants, Jacob Tovo and Hasmukh Patel, were at fault for causing the accident.

         The court held a Rule 16 Preliminary Pretrial Conference on May 5, 2017. At the conference, the court set October 30, 2017 as the deadline for Washington to produce expert witness disclosures and reports to the defendants. Tovo has indicated that Washington produced her expert disclosures, however, the disclosures did not comply with Federal Rule of Civil Procedure 26. On November 17, 2017, Washington requested leave to supplement her Rule 26(a)(2) disclosures, which the court granted. Washington provided Tovo her supplemental disclosures on December 27, 2017. Tovo has argued that the supplemental disclosures are not rule-compliant. Therefore, he has filed the motion to compel requesting that Washington be ordered to produce complete and thorough Rule 26 reports.

         Washington filed a Motion to Strike [DE 21] on February 7, 2017. Washington has argued that the Motion to Compel [DE 17] does not contain a separate supporting brief and that at no time prior to the filing of the motion did the parties meet and confer regarding the dispute over the Rule 26 disclosures. Tovo did not file a Local Rule 37-1 certification along with the motion.


         “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(a). The certification must include the date, time, and place of any conference or attempted conference and the names of any participating parties. N.D. Ind. L.R. 37-1(a)(1) and (2). The court may deny any motion that failed to include the required certification. N.D. Ind. L.R. 37-1(b).

         Washington has argued that the motion to compel should be stricken, denied, or not ruled on because Tovo has not followed the prerequisites for filing the motion. However, Tovo contends that he took necessary steps to resolve the dispute. First, after receiving Washington's first disclosures Tovo wrote Washington a letter that addressed the disclosures compliance with Rule 26. The letter included citations to two Northern District of Indiana cases that outlined the proper Rule 26(a)(2) disclosures requirements. Next, Tovo has indicated that after receiving Washington's supplemental disclosures he sent a letter, along with the motion to compel and a request for rule compliant disclosures to Washington. Tovo has indicated that he never received a response.

         Washington has argued that the parties did not met in-person to discuss the expert witness disclosures. However, the Federal rules and Local rules are silent on in-person meetings. Moreover, Washington has argued that Tovo failed to comply with N.D. of Ind. L.R. 7-1(b)(2), which provides that parties must file a supporting brief with any motion under Federal Rule of Civil Procedure 37.

         Although Washington's motion has merit, the court will address the underlying issues because striking Tovo's motion pursuant to Local Rules 37-1 and 7-1(b)(2) will simply delay the resolution of this dispute. See Felling v. Knight, 2001 WL 1782361, at *1 (S.D. Ind. Dec. 21, 2001) (“[T]he briefs leave little doubt that the parties will not reach mutual agreement on the issues raised. Therefore, the court will address the underlying issues rather than deny the motion solely on the basis of a procedural shortcoming. To hold otherwise would do little other than delay resolution of these issues . . . .”). Courts have broad discretion in determining whether the moving party has satisfied the meet-and-confer component of Federal Rule of Civil Procedure 37(a)(1) and Local Rule 37-1. Sowell v. Dominguez, 2011 WL 4496505, at *3 (N.D. Ind. 2011); see Lucas v. GC Servs. L.P., 226 F.R.D. 328, 335 (N.D. Ind. 2004) (finding the plaintiffs' lack of compliance not fatal when the motion reflected an effort to confer with the defendants). The communication described by Tovo somewhat complies with the purpose of Rule 37-1. Therefore, the court will not strike the motion for its procedurals shortcomings. The Motion to Strike [DE 21] is DENIED.

         A party 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.”).

         A party 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 Restaurants 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. SmithklineBeecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009) (citing Grahamv.Casey=sGen. 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 supervising discovery).

         Tovo has requested that the court compel Washington to produce complete Rule 26 reports. Federal Rule of Civil Procedure 26(a)(2) ...

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