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Marnocha v. City of Elkhart

United States District Court, N.D. Indiana, South Bend Division

January 7, 2019

MARGARET MARNOCHA, Plaintiff,
v.
CITY OF ELKHART, INDIANA, and TIM NEESE, Defendants.

          OPINION AND ORDER

          JOHN E. MARTIN MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Trial Rule 37 Motion to Compel, Motion for Sanctions, Motion for Default Judgment and Request for Hearing [DE 63], filed September 27, 2018. Defendant filed a response on October 11, 2018, and Plaintiff filed a reply on October 18, 2018.

         I. Background

         Plaintiff's Amended Complaint alleges that she was unlawfully terminated from her job with Defendant City of Elkhart working with Defendant Tim Neese. She claims discrimination on the basis of sex and age as well as violations of her First Amendment right to free speech. Defendants filed a motion to dismiss which was granted in part and denied in part on June 19, 2017. On July 20, 2017, the Court held a preliminary pretrial conference and set deadlines related to discovery.

         On October 4, 2018, the Court granted in part a prior motion to compel and ordered Defendants to provide any outstanding discovery, granted in part a motion to quash a nonparty request for production but allowed a subpoena limited to the relevant information about recommendation information provided by Defendants for another employee, and granted a protective order excusing Defendant Neese from attendance at a deposition scheduled for August 14, 2018.

         II. Analysis

         Pursuant to Federal Rule of Civil Procedure 26, the scope of discovery is “any nonprivileged matter that is relevant to any party's claim or defense. . . . Relevant 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). Furthermore, the Rule 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). Likewise, “[t]he scope of material obtainable by a Rule 45 subpoena is as broad as permitted under the discovery rules.” Graham v. Casey's Gen. Stores, 206 F.R.D. 251, 253 (S.D. Ind. 2002); see also Teton Homes Europe v. Forks RV, No. 1:10-CV-33, 2010 WL 3715566, *2 (N.D. Ind. Sept. 14, 2010). 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 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), and Rule 45(c)(3)(A) allows a court to quash a subpoena based on a timely motion where the subpoena requires the disclosure of privileged or other protected matter or subjects a person to undue burden. See Fed. R. Civ. P. 45(c)(3)(A)(iii), (iv). A party objecting to the discovery request bears the burden of showing why the request is improper. See McGrath v. Everest Nat'l Ins. Co., 625 F.Supp.2d 660, 670 (N.D. Ind. 2008). The Court has broad discretion when determining matters related to discovery. Thermal Design, Inc. v. Am. Soc'y of Heating, Refrigerating & Air-Conditioning Eng'rs, Inc., 755 F.3d 832, 837 (7th Cir. 2014); Rennie v. Dalton, 3 F.3d 1100, 1110 (7th Cir. 1993).

         A. Rule 37 Certification

         Federal 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 certification. Id.

         Plaintiff includes a Rule 37-1 certification describing interaction between the parties throughout the course of discovery. Defendants argue that Plaintiff failed to engage with them in good faith to resolve the discovery dispute. Defendants argue that Plaintiff never previously raised the issues regarding their responses to her requests for admission. They assert that, at depositions in August shortly before fact discovery closed on August 31, 2018, counsel for Plaintiff brought up a dispute about what discovery had been received, but that there was no follow up until September 25, 2018, after Defendants filed their motion for summary judgment, and that the follow up was in the form of a single email. The September 25, 2018 email is only a few lines long, and the only reference to a discovery dispute reads, “If you're only aware of the discovery you listed... perhaps read the depositions of the City's IT director and the Mayor again.” The instant Motion was filed two days later.

         The interaction between the parties as described in the certification indicates that they are unable to get along. The attempt to conference, and in particular the single, cryptic email sent about after the close of discovery, do not comply with the requirements of Rule 37 and Local Rule 37-1. Although the attempt to conference about the dispute is not as robust as the Court would hope, the motion will not be denied for this reason alone.

         B. Responses to Plaintiff's Discovery Requests

         Plaintiff argues generally that Defendants have failed to conduct diligent searches for documents and provided contradictory information in written responses and deposition testimony. A number of the disputes described in Plaintiff's Motion have since become moot as a result of the Court's ruling on other discovery motions. Accordingly, the disputes currently remaining appear to be limited to Plaintiff's allegations that some of Defendants' responses to her requests for admission are contradicted by deposition testimony and a dispute over ...


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