Lampley v. Buss et al

Filing 75

OPINION AND ORDER denying 67 Motion to Compel. Signed by Magistrate Judge Paul R Cherry on 4/25/12. cc:pltf (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
TOMMY LAMPLEY,
Plaintiff,
v.
MARK LEVENHAGEN, et al.,
Defendants.

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CAUSE NO.: 2:10-CV-338-TLS-PRC

OPINION AND ORDER
This matter is before the Court on Plaintiff’s First Motion to Compel Discovery for “In
Camera Review” the Video Tapes and Production of Documents that Maybe Confidential Security
Information, Produce “In Camera for Review” to the Chief Judge Ms. Springmann [sic] [DE 67],
filed by Plaintiff Lampley, pro se on February 9, 2012. Defendants filed a response of February 16,
2012.
Plaintiff Lampley requests that the Defendants produce copies of the publications they
allegedly withheld from him and several security videotapes he believes show facts relevant to this
case. He requests that the materials be filed with the Court for in camera review. Defendants argue
that they have produced all responsive documents and that the additional requested materials are not
in their possession.
Federal Rule of Civil Procedure 26(b)(1) permits discovery “regarding any nonprivileged
matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). “Relevant
information need not be admissible at the trial if the discovery appears reasonably calculated to lead
to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Nevertheless, the Federal Rules
require a court to

limit the frequency or extent of discovery otherwise allowed by these
rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or
can be obtained from some other source that is more convenient, less
burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain
the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its
likely benefit, considering the needs of the case, the amount in
controversy, the parties’ resources, the importance of the issues at
stake in the action, and the importance of the discovery in resolving
the issues.
Fed. R. Civ. P. 26(b)(2)(C).

Rule 37(a) allows a party to move for an order compelling discovery,

including an order compelling an answer or inspection. See Fed. R. Civ. P. 37(a)(3)(B). The Court
has broad discretion when deciding whether to compel discovery. See Patterson v. Avery Dennison
Corp., 281 F.3d 676, 681 (7th Cir. 2002) (addressing discovery in an employment discrimination
case).
“A party need not produce documents or tangible things that are not in existence or within
its control. It is sufficient that the discovered party respond by saying that a document or tangible
thing is not in existence.” Hagemeyer N. Am., Inc. v. Gateway Data Scis. Corp., 222 F.R.D. 594,
598 (E.D. Wis. 2004) (citations omitted). When a party denies “that it has possession, custody or
control of documents, the requesting party must make an adequate showing to overcome this
assertion.” Id. (quotation and citations omitted). Plaintiff Lampley has made no such showing, and
Defendants have certified that they do not possess the materials requested in the instant Motion.
Accordingly, the Court hereby DENIES the Plaintiff’s First Motion to Compel Discovery
for “In Camera Review” the Video Tapes and Production of Documents that Maybe Confidential
Security Information, Produce “In Camera for Review” to the Chief Judge Ms. Springmann [sic]
[DE 67].
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SO ORDERED this 25th day of April, 2012.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:

All counsel of record
Plaintiff, pro se

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