United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Michael G. Gotsch, Sr. United States Magistrate Judge.
September 26, 2019, the undersigned held a hearing to address
five motions now pending and ripe before this Court and rules
Motion to Strike Daggy Errata Sheet
their Joint Status Report dated September 23, 2019, the
parties reported their agreement that resolution of the
evidentiary issue raised in Plaintiff's Motion to Strike
Mark Daggy's Errata Sheet could be deferred until the
Court addresses dispositive motions. Based upon this
agreement, the Court DENIES WITHOUT
PREJUDICE Plaintiff's motion to strike. [DE
97]. None of the parties' arguments are waived and
the parties may file any necessary motions related to the
Daggy Errata Sheet along with any dispositive motions in this
Motion for Additional Interrogatories
Scheduling Order dated February 20, 2018, this Court limited
each party to 30 interrogatories to be served on any other
party. [DE 28]. Defendant City of Elkhart (“the
City”) served its First Set of Interrogatories, which
included 26 numbered interrogatories, some with subparts, on
Plaintiff. In responses served on August 24, 2018, Plaintiff
refused to answer three of the interrogatories because with
subparts, the previous 23 interrogatories met the limit of 30
set by the Court. [DE 120-1].
City now seeks the Court's permission to re-serve the
remaining three interrogatories on Plaintiff and to serve an
additional twelve interrogatories on Plaintiff to address
matters relevant to the claims and defenses in this case that
have arisen since its original interrogatories were served.
In particular, the City seeks information related to
non-party Johlanis Ervin who has become known as an
individual with information about Plaintiff's alleged
exoneration and his damages.
reviewed the briefs and the parties' oral argument, the
Court finds that the additional interrogatories are
reasonable in number and scope given the complexity of this
case. Therefore, the Court GRANTS the
City's motion for additional interrogatories. [DE 120].
The City may serve Plaintiff with the fifteen additional
interrogatories discussed in its instant motion.
Motion to Compel and Motion for Protective Order
hearing, Plaintiff's counsel spent considerable time
explaining why Plaintiff needs the information at issue in
the parties' competing motion to compel and motion for
protective order. Counsel presented information that the
City's attorney indicated he had not heard before.
Similarly, Plaintiff's counsel articulated a more concise
and complete explanation than what had been included in his
briefing of the instant discovery motions. While
Plaintiff's counsel's explanation did not establish
complete agreement among the parties about the remaining
discovery disputes, the City's counsel indicated
Plaintiff's counsel's revelations create additional
room to negotiate resolution of most, if not all, the
remaining discovery issues.
the argument presented at the hearing increased the
Court's concern about whether Plaintiff fulfilled his
duty under Fed.R.Civ.P. 37(a)(1) and N.D. Ind. L.R. 37-1(a)
to confer in good faith with the opposing parties to try and
resolve the disputes at issue in the motion to compel without
the Court's assistance. The allegations raised as to
Plaintiff's counsel's refusal to engage in a meet and
confer before filing the motion to compel are particularly
concerning given the fact that the undersigned was already
forced to chastise the parties for failing to meet and confer
as ordered in preparation for the hearing. [See DE 155].
the Court will TAKE UNDER ADVISEMENT
Plaintiff's motion to compel [DE 73] and the City's
motion for protective order [DE 89] in order to afford the
parties time to capitalize on the opportunity created at the
hearing for additional negotiation related to the remaining
discovery disputes. The Court ORDERS the
parties to meet and confer and file a Joint Status Report no
later than October 28, 2019. The Court
DIRECTS the parties to consider all options
discussed at the hearing, including but not limited to, the
possibility of a stipulated protective order to allow
Plaintiff's counsel to inspect files controlled by
Defendants with the protections available through
designations of ‘confidential' or ‘attorneys
eyes only' information. Upon receipt of the Joint Status
Report, the Court will take appropriate action to resolve
formally the motion to compel and motion to protective order.
the Court REITERATES its warning to the
parties and their counsel to avoid vituperative and
incendiary comments, in filings and all other interactions in
this litigation, against the opposing parties and attorneys.
Such conduct will not be tolerated and will be sanctioned as