Franks v. Flint McClung Capital, LLC et al

Filing 135

ORDER : denying 115 Motion to Compel, by Magistrate Judge Boyd N. Boland on 12/20/11.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 11-cv-00407-PAB-BNB
JAMES FRANKS,
Plaintiff,
v.
FLINT-MCCLUNG CAPITAL, LLC,
SHAWON MCCLUNG and
BRYANT FLINT d/b/a, and
HEIDI ARNDT,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the Motion to Compel Plaintiff to Produce Discovery Materials
[Doc. # 115, filed 11/14/2011] (the “Motion to Compel”), which seeks an order compelling the
plaintiff to produce certain text messages. No response was received. The Motion to Compel
Doc. # 115] is DENIED.
Local rule of practice 37.1, D.C.COLO.LCivR, requires:
A motion under Fed. R. Civ. P. 26 or 37 directed to an
interrogatory, request, or response under Fed. R. Civ. P. 33 or 34
shall either set forth in the text of the motion the specific
interrogatory, request, or response to which the motion is directed,
or an exhibit that contains the interrogatory, request, or response
shall be attached.
The purpose of the rule is to assure that the court is directed to the precise discovery request at
issue and is provided with the precise content of the request and response, where appropriate.

The Motion to Compel does not include in its text the specific production request(s) at
issue. Instead, Ms. Arndt directs me to Exhibits M and N of her Omnibus Filing [Doc. # 107].
However, she fails to identify in the Motion to Compel the specific discovery requests at issue.
At a hearing held this morning, Ms. Arndt indicated that Exhibits M and N were
composed of two production requests, which together form the basis for the Motion to Compel.
Contrary to Ms. Arndt’s statement, however, Exhibit M contains four production requests and
associated responses, Exh. M [Doc. # 107] at pp. 6-7, and Exhibit N contains three production
requests and associated responses, Exh. N [Doc. # 107] at pp. 3-4. Although it is apparent from
the Motion to Compel that it concerns requests to produce text messages, four of the production
requests contained in Exhibits M and N seek the production of text messages. It is not apparent
which production requests are at issue in the Motion to Compel.
In addition, the plaintiff indicates in his response to Production Request No. 1, Second
Set, that all text messages between the plaintiff and Ms. Arndt from December 15, 2010, onward
were provided in the initial disclosures. Exh. N [Doc. # 107] at p. 3. Although the Motion to
Compel is not a model of clarity, Ms. Arndt does not appear to dispute that the text messages
were previously provided.
Perhaps Ms. Arndt believes that there are additional text messages not previously
produced. She has made no such showing, however, and the response states that all responsive
documents in the plaintiff’s possession, custody, and control have been produced, and that
subsequently recovered text messages (if any) will be disclosed by supplementation.
Consequently, it appears that the plaintiff has complied with his discovery obligation with
respect to the text messages.

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IT IS ORDERED that the Motion to Compel [Doc. # 115] is DENIED.
Dated December 20, 2011.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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