Kokak LLC v. Auto-Owners Insurance Company
OPINION AND ORDER The 26 Motion to Compel Production of Documents from Plaintiff is GRANTED in part and DENIED in part, and the 32 Motion to StrikePlaintiff's Untimely Response to Motion to Compel is DENIED. Signed by Magistrate Judge Andrew P Rodovich on 9/17/19. (kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
KOKAK LLC d/b/a
PROFESSIONAL VAULT STORAGE,
Case No. 2:18-cv-177
OPINION AND ORDER
This matter is before the court on the Motion to Compel Production of Documents from
Plaintiff [DE 26], and the Motion to Strike Plaintiff’s Untimely Response to Motion to Compel
[DE 32] filed by the defendant, Auto-Owners Insurance Company, on May 28, 2019 and June
25, 2019. For the following reasons, the Motion to Compel Production of Documents from
Plaintiff [DE 26] is GRANTED in part and DENIED in part, and the Motion to Strike
Plaintiff’s Untimely Response to Motion to Compel [DE 32] is DENIED.
The plaintiff, Kokak, LLC d/b/a Professional Vault Storage, initiated this matter against
the defendant, Auto-Owners Insurance Company, to compel appraisal and for breach of contract
on April 27, 2018. On March 14, 2019, Auto-Owners issued a Rule 30(b)(6) Notice of
Deposition and Subpoena Duces Tecum to Kokak intended to take the deposition of a Kokak
representative. The notice and subpoena contained Exhibit B, which commanded production of
documents at the deposition. On April 2, 2019 and April 22, 2019, Auto-Owners served
amended Rule 30(b)(6) notices and subpoenas to Kokak rescheduling the date of the depositions.
The amended notices and subpoenas contained the same Exhibit B as originally served on
The depositions of Kokak’s Rule 30(b)(6) representatives, Joshua Milton and Frederick
Leaf, were held on April 30, 2019. Kokak did not object to any of the deposition topics or the
documents requested in Exhibit B prior to the depositions. However, Kokak appeared at the
depositions without any documentation. On May 15, 2019, Auto-Owners sent correspondence to
Kokak’s counsel demanding that Kokak produce the documents requested in Exhibit B within 7
days. However, Kokak did not respond to the request.
Auto-Owners has filed the instant motion requesting the court to compel Kokak to
produce the documents responsive to the requests found in Exhibit B and for all reasonable
expenses incurred in making the instant motion. Auto-Owners filed a separate Northern District
of Indiana Local Rule 37-1 certification [DE 28] outlining the steps it took in attempting to
resolve this discovery dispute in good faith. Kokak filed its response to the motion to compel on
June 18, 2019. According to N.D. Ind. L.R. 7-1(d)(2)(a), Kokak’s response was due on June 11,
2019. Auto-Owners has filed a motion requesting that Kokak’s untimely response be stricken.
Kokak filed a response to the motion to strike on July 8, 2019, and Auto-Owners filed a reply on
July 15, 2019.
The court first will address Auto-Owners’ motion to strike Kokak’s untimely response to
the motion to compel. Auto-Owners filed the motion to compel on May 28, 2019. Pursuant to
N.D. Ind. L.R. 7-1(d)(2)(a), a party must file any response brief to a motion within 14 days after
the motion is served. Kokak, without seeking an extension, filed its response on June 18, 2019.
Motions to strike generally are disfavored, although they may be granted if they remove
unnecessary clutter from a case and expedite matters, rather than delay them. Heller Fin., Inc. v.
Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989); Doe v. Brimfield Grade
School, 552 F. Supp. 2d 816, 825 (C.D. Ill. 2008). The decision whether to strike is within the
discretion of the court. Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir.
Kokak has indicated that it delayed filing a response to the motion to compel so that the
responsive documents could be provided to Auto-Owners and the affidavits of its representatives
could be filed with the response. Kokak contends that Auto-Owners was not prejudiced by its
late filing and that it has provided all responsive documents in its possession. Kokak has not
offered any reason for its delay in producing the requested documents nor has it provided
sufficient justification for failing to seek an extension from the court. However, the court finds
that failing to consider the merits of the motion to compel will only delay this case further.
Accordingly, the Motion to Strike Plaintiff’s Untimely Response to Motion to Compel [DE 32]
Next, the court will address Kokak’s argument that Auto-Owners did not comply with
N.D. Ind. L.R. 37-1. “A party filing any discovery motion must file a separate certification that
the party has conferred in good faith or attempted to confer with other affected parties in an
effort to resolve the matter raised in the motion without court action.” N.D. Ind. L.R. 37-1(a).
The certification must include the date, time, and place of any conference or attempted
conference and the names of any participating parties. N.D. Ind. L.R. 37-1(a)(1) and (2). The
court may deny any motion that failed to include the required certification. N.D. Ind. L.R. 371(b).
Kokak’s contention that Auto-Owners did not file a “separate certification” is without
merit. In accordance with N.D. Ind. L.R. 37-1, Auto-Owners filed a certification outlining its
efforts in obtaining the outstanding discovery. However, the court agrees with Kokak that one
letter sent on May 15, 2019 was not sufficient to meet the requirements of Local Rule 37-1. See
Thompson v. City of Fort Wayne, 2013 WL 2898275, at *1 (N.D. Ind. 2013) (“But a single email sent to counsel, and that counsel's response, falls utterly short of a good faith attempt at a
conference.”); see also Forest River Housing, Inc. v. Patriot Homes, Inc., 2007 WL 1376289,
at *2 (N.D. Ind. 2007) (“[T]wo emails . . . do not constitute meaningful discussion or serious
negotiations to resolve the disputed discovery issue.”). Despite Auto-Owners failure to meet the
requirements of Local Rule 37-1, the court will address the underlying issues rather than denying
Auto-Owners’ motion based on a procedural shortcoming and simply delay a resolution of this
dispute. See Felling v. Knight, 2001 WL 1782361, at *1 (S.D. Ind. 2001) (“[T]he briefs leave
little doubt the parties will not reach mutual agreement on the issues raised. Therefore, the court
will address the underlying issues rather than deny Knight’s motion solely on the basis of a
procedural shortcoming. To hold otherwise would do little other than delay resolution of these
issues . . . ”).
Pursuant to Federal Rule of Civil Procedure 26, the scope of discovery is “any
nonprivileged matter that is relevant to any party’s claim or defense . . . Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Relevancy is “construed broadly to encompass any matter
that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or
may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing
Hickman v. Taylor, 329 U.S. 495, 501 (1947)).
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. See Federal Rule of
Civil Procedure 37(a). 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) (citation 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) (citation omitted). 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 (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)
(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).
Auto-Owners has requested that the court compel Kokak to produce all of the documents
in its possession, custody, or control requested in the Rider included as Exhibit B in AutoOwners’ Rule 30(b)(6) Notice of Deposition. Federal Rule of Civil Procedure 30(b)(2) states
that “[t]he notice to a party deponent may be accompanied by a request under Rule 34 to produce
documents and tangible things at the deposition.” Auto-Owners’ Rule 30(b)(6) Notice of
Deposition constituted a formal document request because Auto-Owners supplemented the
notice with a Rule 34 document request as required by Rule 30(b)(2).
Kokak’s representatives appeared at the deposition on April 30, 2019. However, Kokak
failed to produce a single document at the deposition. Kokak first was served with Exhibit B in
March of 2019. It neither objected to the production of the documents nor moved for a
protective order. Auto-Owners sent a letter on May 15, 2019 demanding production of “all
documents requested in Exhibit B,” in addition to specific documentation that was discussed
during the deposition. Kokak did not produce any responsive documents until June 18, 2019,
after discovery had closed and Auto-Owners had filed the motion to compel. There is no dispute
that Kokak’s production of documents on June 18 was untimely. However, Kokak contends that
all the requested documents have been produced, are in the possession of Auto-Owners, or are
not in Kokak’s possession.
Kokak’s representatives filed affidavits claiming that they have produced all of the
documentation in their “possession.” Auto-Owners contends that Rule 34 is much broader than
just “possession.” Rather, it requires Kokak “to produce and permit the requesting party or its
representative to inspect, copy, test, or sample” documents or electronically stored information
“in the responding party's possession, custody, or control.” Federal Rule of Civil Procedure
34(a)(1). “[F]ederal courts have consistently held that documents are deemed to be within the
‘possession, custody or control’ for purposes of Rule 34 if the party has actual possession,
custody or control, or has the legal right to obtain the documents on demand.” Walls v. Paulson,
250 F.R.D. 48, 50 (D.D.C. 2008) (citing In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir.
1995)); U.S. v. Approximately $7,400 in U.S. Currency, 274 F.R.D. 646, 647 (E.D. Wis. 2011).
“Control means the legal right to obtain documents upon demand.” Central States, Southeast
and Southwest Areas Health and Welfare Fund v. Neurobehavioral Associates, P.A., 1997 WL
757879, at *3 (N.D. Ill. 1997). “Nonetheless, a document is not in a party's possession, custody
or control if the document does not exist.” Miller v. City of Plymouth, 2010 WL 1754028, at
*14 (N.D. Ind. 2010).
Auto-Owners contends that its motion to compel is aimed at forcing Kokak to produce
responsive documents that are in existence and are within Kokak’s control. Auto-Owners has
indicated that the documents sought routinely would be in Kokak’s possession, custody, or
control. For example, it indicated that those documents include, but are not limited to, contracts,
leases, deeds, insurance applications and policies, claims documents, land purchase and
financing documents for the subject property, and building permits. (DE 31, Exh. G).
Moreover, Auto-Owners has cited sworn testimony from Kokak’s representatives that led it to
reasonably believe that Kokak was in possession of documentation that it did not produce in its
The court recognizes that "[a] party need not produce documents or tangible things that
are not in existence or within its control.” Hagemeyer N. Am., Inc. v. Gateway Data Scis.
Corp., 222 F.R.D. 594, 598 (E.D. Wis. 2004) (citations omitted). The affidavits of Kokak’s
representatives attest that after conducting a reasonable search of their records, they produced all
the documents in their possession that were responsive to the Rider and the May 15, 2019 letter.
However, Kokak has not maintained that of the documents requested it has no legal right, or that
they are not within its custody or control. To the extent that Kokak has not produced documents
that are within its legal control, it must do so, even if it does not currently have physical
possession of them.
Auto-Owners represents that the remaining requests found in Exhibit B include request
numbers 10, 13, 14, 17, 18, 19, 20, 22, 23, 27, 28, and 29, as well as requests 9 and 10 found in
the May 15 letter. Accordingly, the court ORDERS Kokak to make a good faith and reasonable
effort to obtain and produce the documents that are within its legal control. If Kokak does not
control a certain document, it should notify Auto-Owners of that fact and also should explain
what efforts were made to locate the document.
Auto-Owners has requested reasonable expenses associated with this discovery
dispute. “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). 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)(i)-(iii).
Auto-Owners filed the motion to compel without attempting in good faith to obtain the
discovery. “A good faith effort to resolve a discovery dispute requires that counsel converse,
confer, compare views, consult and deliberate.” Imbody v. C & R. Plating Corp., 2010 WL
3184392, at *1 (N.D. Ind. 2010) (citation and internal quotation marks omitted). A single letter
sent to Kokak demanding production of the documents prior to seeking court intervention does
not satisfy the good faith requirement of Rule 37. Therefore, Auto-Owners’ request for
reasonable expenses incurred in making the motion to compel is DENIED.
Based on the foregoing reasons, the Motion to Compel Production of Documents from
Plaintiff [DE 26] is GRANTED in part and DENIED in part, and the Motion to Strike
Plaintiff’s Untimely Response to Motion to Compel [DE 32] is DENIED.
ENTERED this 17th day of September, 2019.
/s/ Andrew P. Rodovich
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?