FREEMAN et al v. OLIN CORPORATION et al

Filing 41

ORDER re 39 MOTION to Compel Discovery and Initial Disclosures, and for Sanctions filed by OLIN CORPORATION is GRANTED. Plaintiffs must respond in writing to Defendant's 2nd and 3rd Requests for Production by 8/31/2012. Plaintiffs may file a response to Olin's request for attorney fees. (Internal deadline for referral to judge if response not filed earlier: 9/4/2012).). Signed by MAGISTRATE JUDGE GARY R JONES on 8/22/2012. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
NORMAN FREEMAN,
and CHRISTY FREEMAN
Plaintiffs,
v.

CASE NO. 5:12-cv-6-RS-GRJ

OLIN CORPORATION
D/B/A WINCHESTER CORPORATION,
a foreign corporation, et al.,
Defendants.
_____________________________/
ORDER
This matter is before the Court upon Defendant Olin Corporation’s Motion To
Compel Discovery And Initial Disclosures. (Doc. 39.) Defendant Olin Corporation
(“Olin”) requests the Court to enter an order compelling Plaintiffs to: (1) provide the
required disclosures under Federal Rule of Civil Procedure 26(a), (2) provide complete
responses to Olin’s Second and Third Requests for Production, and (3) produce all
documents identified in the discovery requests. Olin also requests an award of
reasonable fees incurred in bringing the motion. Although the time for filing a response
to Olin’s motion has not passed the Court will rule on this motion without the benefit of a
response because the motion concerns the failure to produce discovery rather than any
challenge to the discovery itself. Because the failure to produce the requested
discovery impedes Olin’s ability to conduct discovery to defend itself in this case waiting
for a response from Plaintiffs would serve no useful purpose other than to further delay
this case. However, as discussed below, the Court will afford Plaintiffs an opportunity to
respond to Olin’s request for reasonable fees for bringing this motion before the Court

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rules on that issue.
The Court’s Scheduling and Mediation Order (Doc. 38) provides that the Joint
Rule 26(f) Report (Doc. 37) “will control ... except as otherwise provided in this Order.”
The Joint Rule 26(f) Report provides that the parties will exchange initial disclosures
under Rule 26(a)(1) within four weeks from filing the Joint Report with the Court. (Doc.
37 ¶2.) The Joint Report was filed with the Court on June 18, 2012, thus, making July
16, 2012 the deadline for the parties to exchange initial disclosures. Before filing this
motion Olin sent written requests to Plaintiffs on July 20 and August 10, 2012
requesting Plaintiffs to provide their initial disclosures. (Doc. 40, Exs. A & B.) More than
one month has passed and Plaintiffs have failed to provide the initial disclosures or
request an extension. Accordingly, Plaintiffs will be ordered to provide the initial
disclosures within the time frames established in this Order.
With regard to Olin’s Second Request for Production of Documents, Olin
requested two categories of documents. First, Olin requested that Plaintiffs produce the
“forensic testing” report Plaintiffs referred to in correspondence with Olin’s counsel.
Second, Olin requested that Plaintiffs provide copies of the “statements from doctors
and disability” that Plaintiffs referenced in a letter sent to Olin’s counsel. Olin’s request
for production was served on March 19, 2012. Before filing this motion Olin attempted
to obtain the requested documents without court intervention. After being advised by
Plaintiff Norman Freeman that he was in the process of gathering the requested
documents, Olin agreed to give Plaintiffs until July 31, 2012 to provide the requested
information. Apparently, on August 6, 2012 Olin received two documents from Plaintiffs,
neither of which are the requested forensic report or the reports and evidence
Case No: 5:12-cv-6-RS-GRJ

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concerning Plaintiff’s Social Security claim.
On July 6, 2012 Olin served its Third request for Production of Documents. The
only required action of Plaintiffs with regard to requests 2, 3, 4 and 5 was to complete
the tax, medical, employment and Social Security authorizations attached to the
requests. Plaintiffs did not provide any responses or object to the requests. As was the
case with the other discovery requests when the time passed for the responses rather
than filing a motion to compel Olin sent Plaintiffs a written request to provide the
requested information. Olin filed this motion to compel only after Plaintiffs failed to
respond to Olin’s follow-up written requests.
While the Court recognizes that Plaintiffs are currently proceeding pro se – and
may not be familiar with the rules of civil procedure – they are nonetheless required to
provide the requested discovery. Plaintiffs’ failure to provide Olin with the requested
discovery has impeded Olin’s ability to move forward with depositions and other
discovery in this case. The discovery deadline is December 3, 2012, thus, leaving Olin
with only three months to complete discovery. The Court in most cases adheres to the
discovery deadline and normally will not modify these dates or continue the trial absent
extraordinary circumstances. Consequently, Plaintiffs will be required to provide the
requested discovery in a short time frame.
Lastly, Olin requests that the Court award it reasonable attorney’s fees for
bringing this motion to compel. Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure
provides in relevant part that” “If the motion is granted ... the court must after giving an
opportunity to be heard, require the party ... whose conduct necessitated the motion ...
to pay the movant’s reasonable expenses incurred in making the motion, including
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attorney’s fees.” As written the Rule mandates that the Court award fees where, as
here, a party has failed to respond to discovery requests thus necessitating the filing of
a motion to compel which is granted. The Rule, however, provides an exception to the
requirement that the Court “must” award attorney’s fees in situations where: (1) the
movant filed the motion before attempting in good faith to obtain the disclosure or
discovery without court action, (2) where the court finds that the “opposing party’s
nondisclosure ... was substantially justified” or (3) where “other circumstances make an
award of expenses unjust.” Id. Because Plaintiffs have not been provided with an
opportunity to respond to Olin’s request for fees – and the Rule provides that the Court
may only enter an award of fees after giving the non-disclosing party an opportunity to
be heard – the Court will defer ruling on Olin’s request for attorney’s fees until Plaintiffs
have filed a response explaining why the Court should not award fees, or the time for
filing a response has passed.
Accordingly, for the reasons discussed above, it is ORDERED that:
1.

Defendant Olin Corporation’s Motion To Compel Discovery And Initial

Disclosures (Doc. 39) is GRANTED.
2. Plaintiffs must respond in writing to Olin’s Second and Third Requests for
Production, produce all documents that are responsive to Olin’s requests for
production, and provide complete initial disclosures under Rule 26(a) on or before
August 31, 2012.
3. Plaintiffs may file a response to Olin’s request for attorney’s fees explaining
why the Court should not award Olin the fees it incurred in bringing the motion to
compel. Plaintiffs’ response must be filed by September 4, 2012, failing which the
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Court will award Olin reasonable attorney’s fees it incurred in bringing the motion to
compel.
DONE AND ORDERED this 22nd day of August, 2012.

s/ Gary R. Jones
GARY R. JONES
United States Magistrate Judge

Case No: 5:12-cv-6-RS-GRJ