Szany v. Garcia et al

Filing 95

OPINION AND ORDER: The Court DENIES the Motion by Plaintiff for Sanctions Against Defendant Hammond for Withholding Evidence DE 88 . Signed by Magistrate Judge Paul R Cherry on 11/29/18. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DENISE SZANY
Plaintiff,

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)
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v.
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JAIME GARCIA and CITY OF HAMMOND, )
Defendants.
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CAUSE NO.: 2:17-CV-74-JTM-PRC

OPINION AND ORDER
This matter is before the Court on a Motion by Plaintiff for Sanctions Against Defendant
Hammond for Withholding Evidence [DE 88], filed by Plaintiff Denise Szany on November 5,
2018. Defendant City of Hammond (the “City”) filed a response on November 12, 2018. Szany
did not file a reply.
Szany’s motion is just over two pages in length and cites no law, other than a passing
reference to Federal Rule of Civil Procedure 37 and a request for the Court to act pursuant to its
discretion. 1 In the motion, Szany requests that the City be sanctioned, to include an award of
attorney fees, for withholding audio tapes.
BACKGROUND
Szany represents that her counsel wrote to the City’s counsel on October 24, 2018, to
request audio recordings, and that the City’s counsel responded that he was unaware of any audio
or video recording matching Szany’s counsel’s request, but that he would make inquiries. On
October 30, 2018, Szany represents that the parties met and conferred, and that later on October
30, 2018, the City’s counsel wrote Szany’s counsel to inform him that the requested audio
recordings had been obtained and that they were available for Szany’s counsel’s review. Thus, the
The City correctly notes that Szany’s motion violates Northern District of Indiana Local Rule 7-1(b)(2) by failing
to be accompanied by a brief in support.
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discovery at issue was obtained and made available to requesting counsel within one week of the
initial request and on the same day as the meet and confer.
Szany states that she served the City with requests for production and the audio was not
tendered, but she neither provides the date on which any requests for production were served nor
indicates what the text of any particular request for production requested. The City responds that
Szany did not specifically request any internal affairs files until August 30, 2018, to which the City
served objections on October 1, 2018. The City also filed a motion for protective order regarding
these files on October 18, 2018.
Szany also states that a Detective Mosier testified at his deposition that he had provided
the requested audio to the City’s counsel and Szany’s counsel represented that “[t]he undersigned’s
recollection an interpretation [sic] of the what [sic] the detective stated is that audio was turned
over a long time prior to October 30, 2018.” (Mot. Sanctions ¶ 8). Szany’s counsel further
represented that he would order the deposition transcript and “can attach it” to Szany’s reply brief.
Id. No reply brief was filed.
ANALYSIS
Federal Rule of Civil Procedure 37 governs motions to compel discovery and motions for
sanctions for discovery violations. Rule 37 has six subsections, and the subsections govern the
following matters:
Subsection (a): motions to compel,
Subsection (b): sanctions for failure to comply with a Court discovery order,
Subsection (c): sanctions for failure to make admissions under Rule 36 or for failure
to make or supplement disclosures under Rule 26,
Subsection (d): sanctions for failure to attend depositions and failure to serve
answers, objections, or written responses to interrogatories or requests for
inspection,
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Subsection (e): sanctions for failure to preserve electronically stored information,
Subsection (f): sanctions for failure to participate in framing a discovery plan.
Szany states that she is bringing a motion for sanctions, not a motion to compel. Additionally,
because the City has made available the discovery at issue before the filing of the motion, a motion
to compel is not appropriate.
None of the five subsections of Rule 37 relating to motions for sanctions provide relief for
Szany for the conduct of which she complains. There is no Court order regarding the audio tapes,
so subsection (b) does not apply. Subsection (c) does not apply because this matter does not
concern the Rule 26 disclosures or a Rule 36 request for admission. The City showed that it
provided its written responses and objections to the requests for production, so subsection (d) does
not apply. (See Def. City’s Resp. Ex. A, ECF No. 91-1). Subsections (e) and (f) do not apply
because no one asserts either that electronically stored information was not preserved or that the
City did not participate in framing the discovery plan.
Thus, the only law cited in the motion for sanctions does not support Szany’s request.
Szany also asks the Court to act pursuant to its discretion, but the Court finds that the City’s actions
do not warrant sanctions.
CONCLUSION
Based on the foregoing, the Court hereby DENIES the Motion by Plaintiff for Sanctions
Against Defendant Hammond for Withholding Evidence [DE 88].
So ORDERED this 29th day of November, 2018.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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