Bruner-McMahon et al v. Sedgwick, County of et al
MEMORANDUM AND ORDER granting 206 Motion to Compel Discovery. Within thirty days of the date of this Order, Plaintiffs shall produce all items responsive to Defendant Stanton County Board of Commissioners' Fourth Request for Production of Documents. See Order for more details. Signed by Magistrate Judge Gerald L. Rushfelt on 8/23/2011. (bw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TERA M. BRUNER-McMAHON,
Administrator of the Estate of TERRY
ALBERT BRUNER, Deceased, et al.,
Case No. 10-1064-KHV-GLR
COUNTY OF SEDGWICK,
MEMORANDUM AND ORDER
Before the Court is a Motion to Compel Discovery (ECF No. 206), filed by Defendant
Stanton County Board of Commissioners (“Defendant”) on June 7, 2011. Defendant seeks to compel
Plaintiffs to produce documents in response to its Fourth Request for Production of Documents
(“Fourth Request”). For the reasons set out below, the Court grants the motion.
Nature of the Matter Before the Court
In its Fourth Request, Defendant sought (1) documents “sent to, or received from Terry
Albert Bruner in the years 2000-2008” and (2) “all photographs and/or videos of Terry Albert
Bruner.”1 For both requests, Plaintiffs responded: “These documents are still being searched for and
upon location and/or retrieval of same, will be produced via supplemental response.”2 As the
deadline for moving to compel production approached,3 Defendant filed the instant motion on June
See Fourth Request for Production to Pls., attached as Ex. A to Mem. Supp. Mot. Compel
See Pls.’ Resp. to Fourth Request for Production, attached as Ex. B to Mem. Supp.
See D. Kan. Rule 37.1(b) (setting a thirty-day deadline for filing motions to compel).
7, 2011. Plaintiffs oppose the motion on grounds that they timely responded to the request and have
produced responsive documents in a supplemental response.4 They also state that they will provide
further supplementation when they gain possession of other responsive documents.5 Defendant
replies that Plaintiffs have a duty to diligently and properly attempt to locate and obtain responsive
documents.6 The fully-briefed motion is ripe for ruling.
Defendant sought production of two categories of items under Fed. R. Civ. P. 34. In the
absence of an objection, parties responding to a Rule 34 request have a duty to produce all documents
or designated tangible things within their “possession, custody, or control.”7 Pursuant to Fed. R. Civ.
P. 37(a), parties may move to compel production of items not produced.8
Plaintiffs urge the Court to deny the instant motion on grounds that they have produced documents in their possession. Such production, however, does not necessarily satisfy their duty of pro-
Pl.’s Resp. Opp’n Mot. Compel (“Pls.’ Resp.”) (ECF No. 218) at 1. The response uses the
singular “plaintiff”, but appears to be a response on behalf of all plaintiffs.
Reply Supp. Mot. Compel (ECF No. 221) at 1.
Fed. R. Civ. P. 34(a)(1) and (b)(2).
Rule 37(a)(1) requires motions to compel to “include a certification that the movant has in
good faith conferred or attempted to confer with the person or party failing to make disclosure or
discovery in an effort to obtain it without court action.” Defendant has not filed the required
certificate of conference. It has attached emails, however, which show that some efforts to confer
were made before the filing of the motion to compel. See Exs. C and D attached to Mem. Supp.
Plaintiffs, furthermore, do not rely on the lack of certificate in opposing the motion. See Pls.’ Resp.
Accordingly, the Court decides the motion on its merits. See Pulsecard, Inc. v. Discover Card
Servs., Inc., 168 F.R.D. 295, 302 (D. Kan. 1996) (recognizing that even when a party fails to comply
with the conference requirements, “it remains within the discretion of the court to consider the
motion on its merits”).
duction. Rule 34 not only requires production of items in a party’s possession but also requires
production of items in the party’s custody or control. “Control” is a broad concept that encompasses
the “right, authority, or ability to obtain” requested items.9 When a party “has the legal right to
obtain documents on demand”, the documents are subject to production under Rule 34.10 Consequently, “Rule 34(a) enables a party seeking discovery to require production of documents beyond
the actual possession of the opposing party, if such party has retained any right or ability to influence
the person in whose possession the documents lie.”11 The party seeking production under Rule 34
has the burden to prove that the responding party has the requisite control.12
Here, Plaintiffs do not argue that they lack control of other responsive items. They simply
contend that they have satisfied their duty of production by producing documents in their possession.
The contention ignores the further requirements of Rule 34. Production of just some responsive
documents is not sufficient. Accordingly, the Court grants the motion to compel. Plaintiffs shall
produce all items in their possession, custody, or control that are responsive to the requests at issue.
If they have already done so, they shall serve a supplemental response that affirms that they have
produced all requested items.
When the Court grants a motion to compel, the moving party is generally entitled to recover
its reasonable fees and expenses.13 Rule 37(a)(5)(A) precludes such recovery, however, when “the
Super Film of Am., Inc. v. UCB Films, Inc., 219 F.R.D. 649, 651 (D. Kan. 2004).
Starlight Int’l v. Herlihy, 186 F.R.D. 626, 635 (D. Kan. 1999).
Ice Corp. v. Hamilton Sundstrand Corp., 245 F.R.D. 513, 517 (D. Kan. 2007).
Id. at 516.
See Fed. R. Civ. P. 37(a)(5)(A).
movant filed the motion before attempting in good faith to obtain the disclosure or discovery without
court action” or “other circumstances make an award of expenses unjust.”14 In this case, Defendant
filed the instant motion without the requisite certification showing good faith efforts to confer; thus
depriving the Court of information pertinent to the issue of expenses. Regardless of good faith
efforts to confer, the Court finds that the circumstances in general make an award of expenses or fees
IT IS THEREFORE ORDERED that the Motion to Compel Discovery (ECF No. 206) filed
by Defendant Stanton County Board of Commissioners is granted. Within thirty days of the date of
this Order, Plaintiffs shall produce all items responsive to Defendant’s Fourth Request for Production
of Documents. Said production shall take place at the offices of defense counsel or at any other location to which the parties agree. An award of expenses or fees is inappropriate under the circumstances. Each party shall bear its own attorney fees and expenses incurred in connection with the
motion to compel.
Dated in Kansas City, Kansas on this 23rd day of August, 2011.
S/ Gerald L. Rushfelt
Gerald L. Rushfelt
U.S. Magistrate Judge
Fed. R. Civ. P. 37(a)(5)(A)(i) and (iii).
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