Clemons v. City of Hobart et al

Filing 37

OPINION AND ORDER: The 36 Motion to Compel Discovery Responses is GRANTED. Clemons is ORDERED to provide full and complete responses to the Interrogatories, Request for Production of Documents, Expert Interrogatories, and Expert Request for Production of Documents and Authorizations within 14 days of this order. Officer Viator is DIRECTED to file an affidavit indicating his fees and expenses within 14 days of this order. Signed by Magistrate Judge Andrew P Rodovich on 10/12/2017. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DAMON CLEMONS,
Plaintiff,
v.
CITY OF HOBART, CITY OF HOBART
POLICE DEPARTMENT, OFFICER
G. VIATOR #104, in his individual and
official capacity, SERGEANT CLAUSSEN,
in his individual and official capacity, and
CEC ENTERTAINMENT, INC.,
Defendants.

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Case No. 2:17-cv-11

OPINION AND ORDER
This matter is before the court on the Motion to Compel Discovery Responses [DE 36]
filed by the defendant, Officer G. Viator, on August 21, 2017. For the following reasons, the
motion is GRANTED.
Background
The plaintiff, Damon Clemons, initiated this matter on October 11, 2016, in the Lake
Superior Court, State of Indiana. The matter was removed to this court on January 11, 2017.
On June 7, 2017, Officer Viator served Clemons with Interrogatories, Request for Production of
Documents, Expert Interrogatories, and Expert Request for Production of Documents and
Authorizations. Officer Viator has indicated that he has not received a response to any of the
requests.
Pursuant to Local Rule 37-1, Officer Viator filed a certification indicating that his
counsel attempted to resolve this discovery dispute with Clemons’ counsel before requesting
court intervention. Specifically, to resolve the present dispute Officer Viator has indicated that

on August 2, 2017, his counsel spoke with Clemons’ counsel regarding the responses to the
outstanding written discovery. The parties agreed to extend the deadline until August 11, 2017.
On August 17, 2017, counsel for Officer Viator left a detailed voicemail message for Clemons’
counsel. Although, Clemons’ counsel indicated that he would provide discovery responses by
August 11, 2017, Officer Viator has indicated that he has not received responses to the
outstanding discovery requests. Clemons has not objected to this motion, and the time to do so
has passed.
Discussion
A party may “obtain discovery regarding any matter, not privileged, that is relevant to the
claim or defense of any party, including the existence, description, nature, custody, condition and
location of any books, documents, or other tangible things.” Federal Rule of Civil Procedure
26(b)(1). For discovery purposes, relevancy is construed broadly to encompass “any matter that
bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or
may be in the case.” Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002)
(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389, 57 L.
Ed. 2d 253 (1978)). Even when information is not directly related to the claims or defenses
identified in the pleadings, the information still may be relevant to the broader subject matter at
hand and meet the rule’s good cause standard. Borom v. Town of Merrillville, 2009 WL
1617085, at *1 (N.D. Ind. June 8, 2009) (citing Sanyo Laser Prods., Inc. v. Arista Records, Inc.,
214 F.R.D. 496, 502 (S.D. Ind. 2003)); see Adams v. Target, 2001 WL 987853, at *1 (S.D. Ind.
July 30, 2001) (“For good cause, the court may order discovery of any matter relevant to the
subject matter involved in the action.”); Shapo v. Engle, 2001 WL 629303, at *2 (N.D. Ill. May
25, 2001) (“Discovery is a search for the truth.”).

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A party may seek an order to compel discovery when an opposing party fails to respond
to discovery requests or has provided evasive or incomplete responses. Federal Rule of Civil
Procedure 37(a)(2)–(3). The burden “rests upon the objecting party to show why a particular
discovery request is improper.” Gregg v. Local 305 Ibew, 2009 WL 1325103, at *8 (N.D. Ind.
May 13, 2009) (citing Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 449–50
(N.D. Ill. 2006)); McGrath v. Everest Nat. Ins. Co., 2009 WL 1325405, at *3 (N.D. Ind. May
13, 2009) (internal citations omitted); Carlson Rests. Worldwide, Inc. v. Hammond Prof’l
Cleaning Servs., 2009 WL 692224, at *5 (N.D. Ind. March 12, 2009) (internal citations omitted).
The objecting party must show with specificity that the request is improper. Cunningham v.
Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009) (citing Graham v. Casey’s Gen.
Stores, 206 F.R.D. 253, 254 (S.D. Ind. 2002)). That burden cannot be met by “a reflexive
invocation of the same baseless, often abused litany that the requested discovery is vague,
ambiguous, overly broad, unduly burdensome or that it is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence.” Cunningham, 255 F.R.D. at 478
(citing Burkybile v. Mitsubishi Motors Corp., 2006 WL 2325506, at *6 (N.D. Ill. Aug. 2, 2006))
(internal quotations and citations omitted). Rather, the court, under its broad discretion,
considers “the totality of the circumstances, weighing the value of material sought against the
burden of providing it, and taking into account society’s interest in furthering the truth-seeking
function in the particular case before the court.” Berning v. UAW Local 2209, 242 F.R.D. 510,
512 (N.D. Ind. 2007) (examining Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th
Cir. 2002)) (internal quotations and citations omitted); see Hunt v. DaVita, Inc., 680 F.3d 775,
780 (7th Cir. 2012) (explaining that the district court has broad discretion in supervising
discovery).

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Clemons did not respond or object to the motion. Therefore, he did not meet his burden
to demonstrate that the requested discovery is improper. Further, the court finds that the
requested information is relevant to Officer Viator’s claims and that he attempted in good faith to
resolve this discovery dispute before requesting court intervention pursuant to Local Rule 37-1.
“The great operative principle of Rule 37(a)(5) is that the loser pays.” Charles Alan
Wright et al., 8B Federal Practice and Procedure Civil § 2288 at 787 (3d ed. 2014). “Fee
shifting when the judge must rule on discovery disputes encourages their voluntary resolution
and curtails the ability of litigants to use legal processes to heap detriments on adversaries (or
third parties) without regard to the merits of the claims.” Rickels v. City of South Bend, Ind., 33
F.3d 785, 787 (7th Cir. 1994). Any loser may avoid payment by showing that his position was
substantially justified. Rickels, 33 F.3d at 787. The failure to disclose is sanctionable and
properly remedied by an order compelling discovery. Federal Rules of Civil Procedure
37(a)(3)(B), (a)(4), (a)(5); Lucas v. GC Services, L.P., 226 F.R.D. 328, 329–30 (N.D. Ind.
2004). Federal Rule 37(a)(5)(A) states that the court shall require sanctions based upon the costs
of seeking a motion to compel. See Stookey v. Teller Training Distribs., Inc., 9 F.3d 631, 637
(7th Cir. 1993) (citing the prior section number) (“Rule 37(a)(4) clearly allows for an award of
the expenses incurred in obtaining an order to compel, including attorney’s fees.”). Sanctions
under Rule 37(a)(5) are appropriate unless the movant filed the motion without attempting in
good faith to obtain the discovery without court action, the party’s nondisclosure was
“substantially justified,” or other circumstances make an expense award unjust. Federal Rule of
Civil Procedure 37(a)(5)(A). In addition, Federal Rule 37(c)(1) states that a party who fails to
disclose, provides false or misleading disclosure, or refuses to admit information required by
Rule 26(a) without “substantial justification” may be sanctioned unless such failure was

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“harmless.” Musser v. Gentiva Health Servs., 356 F.3d 751, 755 (7th Cir.2004). Thus, Rule
37(a) is a fee-shifting rule, and the loser must pay unless it demonstrates that the movant filed the
motion before attempting to obtain the discovery in good faith without court action, its position
was “substantially justified,” or other circumstances make an expense award unjust.
Because Clemons did not respond to the motion to compel, he did not demonstrate that
Officer Viator filed his motion before attempting to obtain the discovery in good faith, that his
position was substantially justified, or that other circumstances make an expense award unjust.
Based on the foregoing reasons, the Motion to Compel Discovery Responses [DE 36] is
GRANTED. Clemons is ORDERED to provide full and complete responses to the
Interrogatories, Request for Production of Documents, Expert Interrogatories, and Expert
Request for Production of Documents and Authorizations within fourteen days of this order.
Officer Viator is DIRECTED to file an affidavit indicating his fees and expenses within
fourteen days of this order.
ENTERED this 12th day of October, 2017.
/s/ Andrew P. Rodovich
United States Magistrate Judge

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