United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
JOHN H. ENGLAND, III, Magistrate Judge.
On August 27, 2014, the Court ordered Plaintiff to provide specific, detailed responses to Defendants' interrogatory responses. (Doc. 89). On September 10, 2014, Plaintiff filed such responses, along with a motion to compel Defendants to respond to certain discovery. (Doc. 90). Defendants have submitted opposition to Plaintiff's motion. (Doc. 92).
I. Procedural History
Now that the parties have filed evidence with the Court of their previously off-the-record email discussions and discovery responses, the Court can set out a clearer description of the procedural history of this discovery dispute. In August 2013, Plaintiff served Defendants with requests "for documents and explanations" containing what appear to be twenty requests for production, (doc. 39), to which Defendants responded on September 27, 2013, (docs. 92-2 & 92-3). In May 2014, Plaintiff served Defendants with two additional sets of discovery, "Plaintiff's First Interrogatories to Defendants" and "Plaintiff's first Request for Production of Documents." (Doc. 63; doc. 92-1 at 7-11).
On June 4, 2014, the Court and the parties held a hearing and discussed how to handle Defendants' objections to Plaintiff's deposition notices, and the parties agreed Plaintiff could serve interrogatories on Defendants with the intent of determining whether he could get the information he needed without the time and expense of depositions. (Doc. 86). On June 5, 2014, the Court entered an order giving Plaintiff until June 19, 2014, to serve interrogatories on Defendants and giving Defendants until July 3, 2014, to serve responses on Plaintiff. (Doc. 73).
Based on the evidence now before the Court, it seems Plaintiff misunderstood these deadlines to be for him to respond to Defendants' previously served discovery, ( see doc. 87 at 5), and for Defendants to respond to his previously served discovery, ( see doc. 81 at ¶ 3; doc. 92-1 at 2). On June 27, 2014, Defendants filed a notice of Plaintiff's non-compliance asserting, although Plaintiff had previously filed interrogatories, he had not filed his responses as ordered in the Court's June 5 Order. (Doc. 75). Plaintiff responded, stating Defendants' assertion was not true because he emailed Defendants' attorneys on June 19, 2014, "following the court order issued on June 5, 2014." (Doc. 76 at ¶ 1). Without access to the parties' out-of-court discussions and discovery documents, this appeared to indicate Plaintiff had responded to the Court's order by simply reusing previous interrogatories. On June 30, 2014, the Court issued an order stating any issues would be dealt with at the July 14, 2014 hearing and "Defendants' deadline to respond to any interrogatories Plaintiff may have served pursuant to that order remains July 3, 2014." (Doc. 77 at 1).
On July 4 and 5, 2014, Plaintiff served another set of requests for production and another set of interrogatories. (Doc. 92-1 at 1-6; id. at 12-19).
The morning of the July 14 hearing, "out of an abundance of caution, " Defendants sent Plaintiff unsigned responses to his previous discovery. (Doc. 87 at 12-13). Both sides believed the other had not complied with the June 5 Order, but, because responses had been served and wanting to move this case through the end of discovery, the Court proposed Defendants serve signed responses of what they had already sent Plaintiff and Plaintiff review the responses and bring any issues with Defendants' responses and objections to the Court's attention. ( Id. at 10). The parties agreed to do so. ( Id. at 14).
Plaintiff responded by merely stating he did not "accept" Defendants' responses because Defendants had missed the deadline of July 3, 2014, to respond. (Doc. 81 at ¶ 3). At the August 12, 2014 hearing, Plaintiff asked about "more questions in exchange for the deposition, " apparently not understanding the Court had been treating the interrogatories the parties had been arguing over for more than a month as those questions. (Doc. 88 at 20). After the hearing, the Court issued an order giving Plaintiff a deadline to give a detailed response to Defendants' interrogatory responses. (Doc. 89).
On September 10, 2014, Plaintiff responded with the current motion, including discussion of each of the issues he had with Defendants' responses to his interrogatories and requests for production from August 2013 and May 2014. (Doc. 90). Between Plaintiff filing this motion and Defendants filing their opposition to it, Plaintiff finally served Defendants with the interrogatories instead of depositions the Court understood to have been at issue all along. (Doc. 90 at 46; doc. 92 at 17).
A. Motion to Compel Responses to Plaintiff's Previous Discovery
As a threshold issue, it appears Plaintiff has failed to comply with Rule 37's requirement to confer with the other party before filing a motion to compel. (Doc. 90; doc. 92 at 8). However, after considerable back and forth on this issue, the Court ordered Plaintiff to respond to Defendants' responses (as he has finally done), (doc. 89), so Plaintiff's motion can hardly be said to be the usual Rule 37 motion contemplated by the Rules. Because discovery has ended (except to the extent the Court may order as a result of Plaintiff's motion) and the Court ordered the responses in question, the Court gives some leeway on this point, but no additional discovery will be allowed where the required conference would likely have resolved the issue.
In Plaintiff's motion, he first seeks to compel Defendants to supplement their responses to his August 2013 requests for documents and explanations, his May 2014 requests for production of documents, and his May 2014 interrogatories.
1. August 2013 Requests for "Documents and Explanations"
Plaintiff asserts "Defendants provided zero (0) of the twenty (20) requested documents or explanations to Plaintiff." (Doc. 90 at 7). Defendants argue they provided several documents responsive to several of Plaintiff's requests, as well as 320 pages of Initial Disclosure documents and twenty-two exhibits at his deposition. (Doc. 92 at 9). They further state that, where they did not have particular documents requested, they indicated such in their responses. ( Id. ).
After reviewing the requests and responses, (doc. 90-3; docs. 92-2 & 92-3), Plaintiff is not entitled to any further supplementation on these requests. Regarding requests, numbered 1, 3, 9, 10, 12, 13, 14, 15, 18, 19, and 20, Plaintiff asserts Defendants have not produced documents to support various statements or decisions by various defendants. (Doc. 90 at 7-8, 11-18). However, each of these requests is merely a statement of fact for which it is not obvious what documents are being requested. ( Id. ). Even so, Defendants attempted to produce documents as to several of these. ( See, e.g., doc. 92 at 7-8). If Plaintiff believed these documents to be not fully responsive, it was his duty under Rule 37 to confer with Defendants and, if still unsatisfied, to move to compel further responses. See Fed.R.Civ.P. 37(a)(1). If Plaintiff had done so, this apparent miscommunication may have been resolved without passing multiple discovery deadlines and getting the Court involved.
Regarding requests numbered 2, 4, 5, 6, 7, and 8, Defendants stated, after reserving certain objections, that they had no documents in their possession that are responsive to the request. (Doc. 90-3 at 4-6). Plaintiff focuses instead on the objections (asking the Court if the documents are protected by the privileges asserted) or on his own belief or speculation about the existence of the documents. (Doc. 90 at 8-11). If the documents do not exist or are not in Defendants' possession or control, they cannot produce them. If Plaintiff believed responsive documents existed and were in Defendants' possession, he was obligated to confer with Defendants and clear up any misunderstandings.
Regarding request number 11, Plaintiff acknowledges it "is a hypothetical question, " and he does not appear to seek any relief from the Court on this request. (Doc. 90 at 13). Regarding request number 17, Plaintiff acknowledges Defendants produced the Alabama A&M University ("AAMU") Faculty/Administrative Staff Handbook but asserts, because they did not "specify the chapter number, section number, page number, etc., " their response is "no more than NO response." ( Id. at 16). Clearly, it is more than no response. Moreover, Plaintiff seeks the same answer in his new interrogatories to Defendants. (Doc. 92-4 at 155). Lastly, request number 16 appears it may have been intended as an interrogatory. (Doc. 92-2 at 10). Defendants treated it as a request for production and produced the email in which Montgomery addressed the issue. ( Id. at 10-11, 19). Plaintiff asserts he was not seeking the email but a list of issues the email indicated had ...