United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
JOHN
E. MARTIN, MAGISTRATE JUDGE
This
matter is before the Court on Plaintiff's Motion to
Compel Disclosures [DE 48], filed on March 9, 2019.
Defendants served initial disclosures on Plaintiff pursuant
to Federal Rule of Civil Procedure 26(a), and Plaintiff
argues that the disclosures are deficient and seeks to compel
Defendants to produce additional information. Defendants
filed a response on March 15, 2019, and Plaintiff replied on
March 21, 2019.
Rule
26(a)(1) requires, in part, that each party disclose
“the name and, if known, the address and telephone
number of each individual likely to have discoverable
information, ” as well as “a copy-or a
description by category and location-of all documents . . .
that the disclosing party has in its possession, custody, or
control and may use to support its claims or defenses.”
Fed.R.Civ.P. 26(a)(1)(A). A party may seek an order to compel
discovery when an opposing party provides evasive or
incomplete responses. Fed.R.Civ.P. 37(a). The moving party
must certify that it in good faith conferred or attempted to
confer with the non-disclosing party before filing the
motion. Id.; see also N.D. Ind. L.R. 37-1
(“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.”).
Plaintiff
provides the required certification, and alleges three
deficiencies in Defendants' disclosures. First,
Defendants declined to provide the phone numbers and
addresses of individual employees of Defendant Brennan &
Clark, LTD, instead providing counsel's own contact
information. Rule 26(a) requires Defendants to disclose
“the name and, if known, the address and telephone
number of each individual likely to have discoverable
information.” Fed.R.Civ.P. 26(a)(1)(A). Defendants
state that because the employees are represented, they should
only be contacted through counsel, so they provided
counsel's contact information. However, courts have held
that the “hypothetical” concern that counsel may
contact represented individuals does not relieve a
party's obligation under Rule 26(a) to provide contact
information. See, e.g., Tamas v. Family Video Movie Club,
Inc., 304 F.R.D. 543, 545 (N.D. Ill. 2015); Hartman
v. Am. Red Cross, No. 09-1302, 2010 WL 1882002, at *1
(C.D. Ill. May 11, 2010) (collecting cases). Therefore,
Defendants must produce the addresses and telephone numbers
for those employees.
Next,
Plaintiff objects to Defendants naming four categories of
unspecified persons as “individual[s] likely to have
discoverable information.” In brief, Defendants named
the following categories: persons identified in
Plaintiff's initial disclosures, persons identified in
discovery or court filings, persons necessary to authenticate
documents, and rebuttal and expert witnesses. Defendants
state they do not yet know who these individuals are, but
will supplement their disclosures as necessary. Plaintiff
offers no evidence that Defendants know who those individuals
are, and no argument as to why Defendants should be compelled
to identify someone they are not yet aware of. Rule 26(a)
requires disclosure of information “reasonably
available” at the time; Defendants do not need to
identify every individual at the start of discovery.
See Fed. R. Civ. P. 26(a)(1)(E). Although the Court
considers Plaintiff's argument because she provided the
required certification that she attempted to resolve these
disputes in good faith, Plaintiff's position on this
issue strains credulity. In particular, to seek a court order
compelling Defendants to identify the individuals that
Plaintiff identifies in her own initial disclosures
is at minimum a poor use of the parties' and the
Court's resources.
Finally,
Plaintiff argues that Defendants failed to provide a
“description by category and location” of the
documents within their control. Fed.R.Civ.P. 26(a)(1)(A)(ii).
Plaintiff argues that Defendants descriptions' make it
“unclear whether all applicable documents have been
produced, ” possibly including “an insurance
policy.” Defendants state that their descriptions are
sufficient and that Plaintiff did not identify any allegedly
missing documents until the motion was filed. Plaintiff
provides no basis to conclude that any document was wrongly
omitted, or that Defendants were obligated to precisely
describe such a document in their initial disclosures.
Defendants described categories of documents, as permitted by
the rule; they were not required to identify each document.
Fed.R.Civ.P. 26(a)(1)(A)(ii); see also Krawczyk v.
Centurion Capital Corp., No. 06-C-6273, 2009 WL 395458,
at *6 (N.D. Ill. Feb. 18, 2009) (“Rule 26(a) initial
disclosures are just that-preliminary disclosures-and are not
intended to be a substitute for conducting the necessary
discovery.”). However, noting that the rule requires a
description by “category and location
(emphasis added), ” Defendants should state whether any
of the documents it describes are not in their possession,
and if not, whose possession they are in. See Beck v. Am.
Honda Fin. Corp., No. 12-CV-3133, 2014 WL 1572066, at *3
(C.D. Ill. Apr. 17, 2014) (holding that a party's
description of the documents, and the disclosure that they
were in her possession, satisfied Rule 26(a)).
For the
reasons described above, the Court GRANTS in part and
DENIES in part Plaintiff's Motion to Compel
Disclosures [DE 48], and ORDERS Defendants
to supplement their initial disclosures, in the manner
described above, on or before April 9, 2019.
Because
the motion to compel is granted in part and denied in part,
the Court “may, after giving an opportunity to be
heard, apportion the reasonable expenses for the
motion.” Fed.R.Civ.P. 37(a)(5)(C). Accordingly, the
Court ORDERS Plaintiff to FILE, on or before April 9,
2019, an itemization of her costs and fees, including
attorney's fees, incurred in the Motion to Compel along
with argument as to why those expenses are reasonable in this
situation, with Defendants to FILE a response to the request
for expenses and any argument as to the reasonableness of the
fees or why payment of ...