Fitzpatrick v. Fitzpatrick et al

Filing 98

ORDER signed by Magistrate Judge Allison Claire on 2/17/2015 DENYING 95 Motion to Compel without prejudice to its renewal after the plaintiff has complied the rules governing discovery practice; DENYING 97 Request to Revise the Schedulong Order; VACATING the hearing scheduled for 2/18/2015. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL J. FITZPATRICK,

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No. 2:12-cv-2938 GEB AC PS

Plaintiff,
v.

ORDER

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BRIAN FITZPATRICK, et al.,

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Defendants.

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Pending before the court is plaintiff Michael Fitzpatrick’s Motion To Compel Production

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of Documents and Response to Interrogatory, and defendants’ request to revise the discovery

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scheduling order. ECF Nos. 95 & 97. Having reviewed the motion, defendant’s opposition and

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the record, the court will deny the motion on the papers, and vacate the hearing on the motion.

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I. PLAINTIFF’S MOTION TO COMPEL
Rule 37, Fed. R. Civ. P., permits a party to make a motion to compel discovery. The

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motion may be made, however, only if the party sought to be compelled “fails to make a

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disclosure required by Rule 26(a).” Fed. R. Civ. P. (“Rule”) 37(a)(3)(A). In this case, plaintiff

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moves to compel production of documents even though it appears that he has never properly

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requested the discovery in the first place.

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Plaintiff asserts that he “served both the Request for Production of Documents and the

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Interrogatory on November 20, 2014 by regular mail and copied the Court.” ECF No. 95 at 3.
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There are two problems with this assertion. First, plaintiff is in violation of the court’s Local

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Rules, which instructs him not to file such discovery materials with the court “unless and until

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there is a proceeding” – such as this motion to compel – in which the material is at issue. E.D.

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Cal. R. (“Local R.”) 250.2(c) (interrogatories) & 250.3(c) (requests for production of documents).

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Second, although filing the discovery request violates the court’s Local Rules, the filed

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request does permit the court to confirm defendants’ assertion that plaintiff never properly

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requested the production of documents nor served the interrogatory.

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A.

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In order to request the production of documents, plaintiff must serve a “Request” upon

Document Request

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defendants asking for the documents. Fed. R. Civ. P. 34(a)(1). The request should be served on

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defendants, but it should not be filed with the court at that time. Local R. 250.3(c). Plaintiff

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instead served and filed with the court a “Motion” requesting the production of documents, thus

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creating confusion over whether defendant’s response should be to produce the documents or

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respond to the “Motion” in court. In addition, the request “must specify a reasonable time, place,

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and manner” for the production of the requested documents. Fed. R. Civ. P. 34(b)(1)(B).

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Plaintiff’s “Motion” does not specify a time, place or manner for production of the requested

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documents.

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Plaintiff has failed to serve a proper request for production of documents on defendants,
and accordingly, his motion to compel production will be denied.
The court notes however, that in email communications between the parties, plaintiff

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appears to have narrowed the scope of his discovery requests to six items. See ECF No. 95 at 10.

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Defendants assert in the exchange that he has produced everything “save and except items that

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will be used for impeachment as per FRCP Rule 26.” ECF No. 95 at 10. Plaintiff apparently

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interprets this language to mean that defendants are withholding documents that are “an

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apparently integral part of the ‘defense’ which Defendants intend to put forth at Trial and in the

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anticipated Motion for Summary Judgment.” ECF No. 95 at 5. Plaintiff is advised, however, that

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defendants are not required to produce documents that will be used “solely for impeachment.”

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See Fed. R. Civ. P. 26(a)(1)(A)(i), (a)(1)(A)(ii), and (a)(3)(A).
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Accordingly, if plaintiff is seeking only those documents that defendant has advised it will

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use solely for impeachment, plaintiff is cautioned that any motion to compel such documents may

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be viewed as frivolous, and may make him subject to sanctions.

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B.

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In order to obtain answers to an interrogatory, plaintiff must serve the interrogatory upon

Interrogatory

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defendants. Fed. R. Civ. P. 33(a)(1). The request should only be served on defendants, and

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should not be filed with the court at that time. Local R. 250.2(c). Plaintiff asserts that he served

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an interrogatory on defendants, citing his November 20, 2014 filing with the court as proof.

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However, that filing contains no interrogatory. Moreover, in plaintiff’s motion to compel, he

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does not specify what the interrogatory is, in violation of Local R. 251(c) (“Each specific

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interrogatory, . . . and the objection thereto shall be reproduced in full”).

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Plaintiff has failed to serve the unidentified interrogatory on defendants, and accordingly,
his motion to compel an answer will be denied.

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C.

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Plaintiff is free to serve his discovery requests in conformance with the federal rules, the

Going Forward

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rules of this court, and the scheduling order. After plaintiff has made a proper discovery request,

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defendants will be obligated to respond to the document request, by either agreeing to produce or

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by objecting. See Fed. R. Civ. P. 34(b)(2). Only after defendants have failed to respond

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properly, or have objected to the discovery, is plaintiff permitted to move to compel, in

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compliance with Fed. R. Civ. P. 37.

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II. DEFENDANTS’ REQUEST TO REVISE SCHEDULING ORDER

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Defendants request that the court issue an order that “plaintiff may not serve written

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discovery on defendants until April 25, 2015,” when defendants will return from sailing on the

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Sea of Cortez. ECF No. 97 at 3. This request is substantively identical to the request defendants

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made just two months ago, in their Status Report of December 22, 2014, and which the court

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denied. See ECF No. 86 (Status Report requesting an order “that plaintiff be prohibited from

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serving any written discovery on defendants until May 1, 2015”); ECF No. 88 (denying the

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request, the court states it “is not prepared to micromanage discovery in such a way that sets
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specific deadlines for every aspect of the discovery process”). Defendants have offered no

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explanation for why they have renewed the request, and the court notes that they did so without

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mentioning that the request was previously denied. The request will again be denied. Defendants

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are cautioned that going forward, they risk sanctions for repeatedly requesting relief that has been

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denied, with no explanation for why a different result should obtain this time around, and with no

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disclosure that the relief has previously been sought and denied.

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IV. CONCLUSION

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For the reasons set forth above, IT IS HEREBY ORDERED THAT:

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1.

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Plaintiff’s motion to compel (ECF No. 95), is DENIED without prejudice to its

renewal after plaintiff has complied with the rules governing discovery practice.

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2.

Defendants’ request to revise the scheduling order (ECF No. 97), is DENIED.

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3.

The hearing scheduled for February 18, 2015, to consider the above matters, is

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VACATED.

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DATED: February 17, 2015

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