Wesselmen v. Tyson Foods, Inc

Filing 16

ORDER granting 12 MOTION to Compel filed by Tyson Foods, Inc. No later than 8/15/16, Wesselman shall file with the court a response setting forth his explanation or justification for failing to timely comply with discovery requests. Also no later than 8/15/16, Tyson shall file with the Court an affidavit itemizing the costs and expenses, including attorney fees, incurred in relation to the filing of and the hearing on its motion to compel. Signed by Magistrate Judge CJ Williams on 8/11/16. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
THEODORE WESSELMANN,
Plaintiff,

No. 15-CV-4247-LTS

vs.
ORDER

TYSON FOODS, INC.,
Defendant.
____________________

I.

INTRODUCTION

The matter before the Court is a motion to compel discovery by defendant Tyson
Foods, Inc. (Tyson). Doc. 12.
On July 20, 2016, Tyson filed a motion to compel discovery, stating that plaintiff
Theodore Wesselmann (Wesselmann) failed to respond to discovery requests.
Wesselmann’s answers were more than three months overdue. Tyson requests imposition
of sanctions for the costs of filing the motion to compel.
Wesselmann did not file a resistance to the motion, like he did not respond to
Tyson’s repeated requests to produce discovery.1 On August 5, 2016, however, after the
Court, through staff, sent out an email providing possible hearing dates/times to schedule
this matter for a hearing, Wesselmann filed a document entitled “Plaintiff’s Certificate
of Responding to Defendants’ [sic] Discovery Requests.” Doc. 13.

  During the telephonic hearing on Tyson’s Motion to Compel, counsel for Wesselmann
represented that he filed a “reply” to Tyson’s motion “yesterday.” Tyson’s counsel indicated
she had not received any response. Nor had the Court. During the hearing, the Court accessed
the file on CM/ECF and noted to the parties that it did not show that Wesselmann had filed any
responsive document. Wesselmann’s counsel replied that he would simply repeat what he had
written in the response during the hearing. 

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On August 9, 2016, the Court held a telephonic hearing on Tyson’s motion. Mr.
Willis J. Hamilton appeared for Wesselmann and Kelsey J. Knowles appeared for Tyson.
For the reasons that follow, the Court grants Tyson’s motion to compel.

II.

FACTUAL BACKGROUND2

On December 8, 2015, Wesselmann filed a complaint in this Court alleging that
Tyson wrongfully terminated his employment because of a physical disability. Doc. 2.
On April 11, 2016, the Court adopted, without change, the parties’ proposed Scheduling
Order and Discovery Plan.

Doc. 9.

The deadlines for adding parties, amending

pleadings, and for Wesselmann to make his expert witness disclosure have passed. Id.
The deadline for completion of discovery is December 9, 2016.
On April 11, 2016, Tyson served Wesselmann with interrogatories and a request
for production of documents. Exhibit A. Wesselmann’s responses were due on May 16,
2016. Wesselmann did not provide responses to the discovery requests by that deadline.
Exhibit C.
On May 23, 2016, Tyson’s counsel sent a letter to Wesselmann’s counsel inquiring
about the overdue discovery responses. Exhibit B. Wesselmann’s counsel did not reply.
On June 13, 2016, Tyson’s counsel sent an email to Wesselmann’s counsel, again
inquiring about the overdue discovery responses. Exhibit D. The email further requested
to schedule a meet and confer conference to discuss discovery responses, proposing a
telephone call on June 15th or June 16th. Id. Wesselmann’s counsel did not reply.
On June 17, 2016, Tyson’s counsel called Wesselmann’s counsel and spoke with
him. Wesselmann’s counsel indicated he would check with his paralegal about the status
of the discovery responses. Exhibit C, ¶7. Later the same day, the paralegal contacted

 Because Wesselmann filed no resistance, the Court assumes as true the facts set forth in Tyson’s
Memorandum in Support of Its Motion to Compel and the exhibits attached thereto.    
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Tyson’s counsel and requested “at least” a two-week extension to provide discovery
responses.

Exhibit E.

Tyson’s counsel responded by email, granting a two week

extension to July 1, 2016, but indicating that it would not likely agree to further
extensions.

Id.

July 1 came and went without Wesselmann providing discovery

responses, requesting a further extension, or communicating with Tyson’s counsel in any
way.
On July 13, 2016, Tyson’s counsel followed up with another email, summarizing
some of the history of Wesselmann’s failure to provide discovery responses and indicating
that if Tyson did not receive responses by July 15, 2016, it would file a motion to compel.
Exhibit F. Tyson’s counsel offered to discuss the matter again, but indicated that she did
not anticipate agreeing to any further extensions of time. Id. Wesselmann’s counsel did
not respond to this email, nor provide discovery responses.
As noted, on July 20, 2016, Tyson filed the instant motion to compel. Consistent
with his practice, Wesselmann filed no response.
During the hearing on August 9, 2016, Tyson’s counsel repeated in summary form
the history of attempting to obtain discovery from Wesselmann. She indicated that she
had received discovery responses in the mail yesterday and, although she has not had an
opportunity to thoroughly review them, believes there are still medical records which
Wesselmann did not provide. Wesselmann’s counsel related that Wesselmann has now
provided responses to the discovery requests, that it included more than 400 pages of
documents, and that among those documents was Wesselmann’s Social Security file
which contained medical records. Wesselmann’s counsel also asserted that Tyson has its
own medical records for Wesselmann as a result of examinations it ordered while
Wesselmann was its employee. Wesselmann’s counsel stated that counsel had some
difficulty in getting information from Wesselmann because he has epilepsy and is
unemployed, but emphasized that he is not blaming Wesselmann. When the Court
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inquired of Wesselmann’s counsel why he repeatedly failed to respond to inquiries from
Tyson’s counsel, he said he did not have his records in front of him because he was not
in his office and cannot offer an explanation.
III.

DISCUSSION

The Eighth Circuit Court of Appeals has explained: “‘The purpose of our modern
discovery procedure is to narrow the issues, to eliminate surprise, and to achieve
substantial justice.’” Mawby v. United States, 999 F.2d 1252, 1254 (8th Cir. 1993)
(quoting Greyhound Lines, Inc. v. Miller, 402 F.2d 134, 143 (8th Cir. 1968)). “The
rules are meant to insure that . . . parties can obtain ‘[m]utual knowledge of all the
relevant facts gathered by both parties.’” Id. (citing Hickman v. Taylor, 329 U.S. 495,
507 (1947)). A party seeking discovery may move for an order compelling that discovery
if the other party fails to answer an interrogatory or provide documents in response to a
request for production of documents. FED. R. CIV. P. 37(a)(3)(B). A motion to compel
must contain a certification that counsel for the moving party in good faith attempted to
meet and confer with the party failing to comply with discovery requests in an effort to
obtain compliance without court intervention. FED. R. CIV. P. 37(a)(1). See also Local
Rule 37(a); Robinson v. Potter, 453 F.3d 990, 995 (8th Cir. 2006) (“Before the court
can rule on a motion, the parties must demonstrate they acted in good faith to resolve the
issue among themselves.”).
There is no question from the facts that Wesselmann failed to provide timely
responses to discovery requests and provided responses only after the Court inquired,
through staff, of the parties’ availability for scheduling a hearing on Tyson’s motion to
compel. Most vexing is Wesselmann’s counsel’s failure to respond to repeated inquiries
by Tyson’s counsel about the discovery responses. Therefore, the Court finds that
Wesselmann failed to timely and fully comply with the discovery requests. The Court
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further finds that Tyson’s counsel substantially complied with its requirement to make a
good faith effort to meet and confer with counsel in an effort to resolve the discovery
dispute without court intervention. Accordingly, the Court grants Tyson’s motion to
compel.
Having granted Tyson’s motion to compel, the Court must now determine whether
sanctions are appropriate. Federal Rule of Civil Procedure 37(a)(5)(A) provides:
If the motion is granted—or if the disclosure or requested discovery is
provided after the motion was filed—the court must, after giving an
opportunity to be heard, require the party or deponent whose conduct
necessitated the motion, the party or attorney advising that conduct, or both
to pay the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees.  But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
FED. R. CIV. P. 37(a)(5)(A).
Here, the Court found that movant Tyson filed the motion after attempting in good
faith to obtain the discovery without court action. During the hearing, Wesselmann’s
counsel averred that he was unable to provide an explanation or justification because he
did not have access to his file.3 Accordingly, before imposing sanctions, the Court will
provide a final opportunity to Wesselmann to show why its failure to provide timely
discovery responses was substantially justified or what other circumstances exist that
would make an award of expense unjust.

3

It is unclear to the Court why Wesselmann’s counsel was unprepared for this hearing.  
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IV.

CONCLUSION

The Court grants Tyson’s motion to compel discovery (Doc. 12). No later than
Monday, August 15, 2016, Wesselmann shall file with the Court a response setting forth
his explanation or justification for failing to timely comply with discovery requests. Also
no later than Monday, August 15, 2016, Tyson shall file with the Court an affidavit
itemizing the costs and expenses, including attorney’s fees, incurred in relation to the
filing of and the hearing on its motion to compel (excluding any costs and expenses
incurred in responding to this order).
IT IS SO ORDERED this 11th day of August, 2016.

__________________________________
C.J. Williams
United States Magistrate Judge
Northern District of Iowa

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