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 Production
of Documents from Plaintiff [DE 26], and the Motion to Strike
Plaintiff's Untimely Response to Motion to Compel [DE 32]
filed by the defendant, Auto-Owners Insurance Company, on May
28, 2019 and June 25, 2019. For the following reasons, the
Motion to Compel Production of Documents from Plaintiff [DE
26] is GRANTED in part and DENIED in part,
and the Motion to Strike Plaintiff's Untimely Response to
Motion to Compel [DE 32] is DENIED.
plaintiff, Kokak, LLC d/b/a Professional Vault Storage,
initiated this matter against the defendant, Auto-Owners
Insurance Company, to compel appraisal and for breach of
contract on April 27, 2018. On March 14, 2019, Auto-Owners
issued a Rule 30(b)(6) Notice of Deposition and Subpoena
Duces Tecum to Kokak intended to take the deposition of a
Kokak representative. The notice and subpoena contained
Exhibit B, which commanded production of documents at the
deposition. On April 2, 2019 and April 22, 2019, Auto-Owners
served amended Rule 30(b)(6) notices and subpoenas to Kokak
rescheduling the date of the depositions. The amended notices
and subpoenas contained the same Exhibit B as originally
served on Kokak.
depositions of Kokak's Rule 30(b)(6) representatives,
Joshua Milton and Frederick Leaf, were held on April 30,
2019. Kokak did not object to any of the deposition topics or
the documents requested in Exhibit B prior to the
depositions. However, Kokak appeared at the depositions
without any documentation. On May 15, 2019, Auto-Owners sent
correspondence to Kokak's counsel demanding that Kokak
produce the documents requested in Exhibit B within 7 days.
However, Kokak did not respond to the request.
has filed the instant motion requesting the court to compel
Kokak to produce the documents responsive to the requests
found in Exhibit B and for all reasonable expenses incurred
in making the instant motion. Auto-Owners filed a separate
Northern District of Indiana Local Rule 37-1 certification
[DE 28] outlining the steps it took in attempting to resolve
this discovery dispute in good faith. Kokak filed its
response to the motion to compel on June 18, 2019. According
to N.D. Ind. L.R. 7-1(d)(2)(a), Kokak's response was due
on June 11, 2019. Auto-Owners has filed a motion requesting
that Kokak's untimely response be stricken. Kokak filed a
response to the motion to strike on July 8, 2019, and
Auto-Owners filed a reply on July 15, 2019.
court first will address Auto-Owners' motion to strike
Kokak's untimely response to the motion to compel.
Auto-Owners filed the motion to compel on May 28, 2019.
Pursuant to N.D. Ind. L.R. 7-1(d)(2)(a), a party must file
any response brief to a motion within 14 days after the
motion is served. Kokak, without seeking an extension, filed
its response on June 18, 2019. Motions to strike generally
are disfavored, although they may be granted if they remove
unnecessary clutter from a case and expedite matters, rather
than delay them. Heller Fin., Inc. v. Midwhey Powder Co.,
Inc., 883 F.2d 1286, 1294 (7th Cir. 1989); Doe v.
Brimfield Grade School, 552 F.Supp.2d 816, 825 (C.D.
Ill. 2008). The decision whether to strike is within the
discretion of the court. Talbot v. Robert Matthews
Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992).
has indicated that it delayed filing a response to the motion
to compel so that the responsive documents could be provided
to Auto-Owners and the affidavits of its representatives
could be filed with the response. Kokak contends that
Auto-Owners was not prejudiced by its late filing and that it
has provided all responsive documents in its possession.
Kokak has not offered any reason for its delay in producing
the requested documents nor has it provided sufficient
justification for failing to seek an extension from the
court. However, the court finds that failing to consider the
merits of the motion to compel will only delay this case
further. Accordingly, the Motion to Strike Plaintiff's
Untimely Response to Motion to Compel [DE 32] is
the court will address Kokak's argument that Auto-Owners
did not comply with 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.” 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).
contention that Auto-Owners did not file a “separate
certification” is without merit. In accordance with
N.D. Ind. L.R. 37-1, Auto-Owners filed a certification
outlining its efforts in obtaining the outstanding discovery.
However, the court agrees with Kokak that one letter sent on
May 15, 2019 was not sufficient to meet the requirements of
Local Rule 37-1. See Thompson v. City of Fort Wayne,
2013 WL 2898275, at *1 (N.D. Ind. 2013) (“But a single
email sent to counsel, and that counsel's response, falls
utterly short of a good faith attempt at a
conference.”); see also Forest River Housing, Inc.
v. Patriot Homes, Inc., 2007 WL 1376289, at *2 (N.D.
Ind. 2007) (“[T]wo emails . . . do not constitute
meaningful discussion or serious negotiations to resolve the
disputed discovery issue.”). Despite Auto-Owners
failure to meet the requirements of Local Rule 37-1, the
court will address the underlying issues rather than denying
Auto-Owners' motion based on a procedural shortcoming and
simply delay a resolution of this dispute. See Felling v.
Knight, 2001 WL 1782361, at *1 (S.D. Ind. 2001)
(“[T]he briefs leave little doubt the parties will not
reach mutual agreement on the issues raised. Therefore, the
court will address the underlying issues rather than deny
Knight's motion solely on the basis of a procedural
shortcoming. To hold otherwise would do little other than
delay resolution of these issues . . . ”).
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.” 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)).
may seek an order to compel discovery when an opposing party
fails to respond to discovery requests or has provided
evasive or incomplete responses. See Federal Rule of
Civil Procedure 37(a). 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) (citation 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) (citation
omitted). 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
(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) (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).
has requested that the court compel Kokak to produce all of
the documents in its possession, custody, or control
requested in the Rider included as Exhibit B in
Auto-Owners' Rule 30(b)(6) Notice of Deposition. Federal
Rule of Civil Procedure 30(b)(2) states that “[t]he
notice to a party deponent may be accompanied by a request
under Rule 34 to produce documents and tangible things at the
deposition.” Auto-Owners' Rule 30(b)(6) Notice of