Murphy v. Lockhart et al

Filing 117

ORDER OVERRULING 115 Objection filed by Thomas Birkett, Cheryl Berry, Sarah Bearss, Kenneth Werner, Jeri Ann Sherry, Michael Krajnik. Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TIMOTHY MURPHY,
Plaintiff,
v.

Case Number 10-11676
Honorable David M. Lawson
Magistrate Judge Michael J. Hluchaniuk
Magistrate Judge Laurie J. Michelson

THOMAS BIRKETT, SMF Warden,
MICHAEL KRAJNIK, Resident Unit Manager,
SARAH BEARSS, Assistant Resident Unit
Supervisor, KENNETH WERNER, Assistant
Resident Unit Supervisor, CHERYL BERRY,
General Office Assistant/Mailroom Clerk,
and JERI-ANN SHERRY, Regional Prison
Administrator,
Defendants.
_________________________________________/
ORDER OVERRULING OBJECTIONS TO MAGISTRATE JUDGE’S ORDER
REGARDING DISCOVERY — GRANTING DEFENDANTS’ MOTION FOR LEAVE
TO DEPOSE PLAINTIFF, DENYING AS PREMATURE PLAINTIFF’S MOTION
TO COMPEL DISCOVERY, AND SETTING INITIAL SCHEDULE FOR WRITTEN
DISCOVERY
On November 4, 2011, Magistrate Judge Laurie J. Michelson entered an order that, among
other things, denied without prejudice the plaintiff’s motion to compel discovery. In reaching her
conclusion, the magistrate judge indicated that she would not require the plaintiff to comply with
Federal Rule of Civil Procedure 37(a)(1) because the defendants regularly failed to comply with
Local Rule 7.1(a)’s requirement that a party seek concurrence in his proposed motion before filing
the motion.
Federal Rule of Civil Procedure 37(a)(1) requires a party seeking to move for an order
compelling disclosure or discovery to certify 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.” Fed. R. Civ. P. 37(a)(1). Federal Rule of Civil Procedure 37(a)
serves an important function in reducing “‘the burden on the court and . . . the unnecessary
expenditure of resources by litigants through promotion of informal, extrajudicial resolution of
discovery disputes.’” Shinn v. Baxa Corp., No. , 2011 WL 2472663, at *6 (D. Nev. June 21, 2011)
(quoting Nevada Power Co. v. Monsanto Co., 151 F.R.D. 118, 120 (D. Nev. 1993)). Similarly,
Local Rule 7.1 requires movants to seek concurrence in the relief requested before filing a motion
for relief in this Court. E.D. Mich. LR 7.1(a). To meet this requirement, Local Rule 7.1(a)(2)
explains that there must be “a conference between the attorneys . . . in which the movant explained
the nature of the motion and its legal basis and requested but did not obtain concurrence in the relief
sought.” LR 7.1(a)(2)(A). If a conference was not possible, then the counsel for the movant must
certify that “despite reasonable efforts specified in the motion or request, the movant was unable
to conduct a conference.” LR 7.1(a)(2)(B).
The Court has referred this case to the magistrate judge to conduct all pretrial proceedings.
That task is a large responsibility, and the magistrate judge enjoys substantial discretion in
discharging those duties and dealing with the parties. It appears that when addressing discovery
matters, the magistrate judge has relaxed the requirements of LR 7.1(a)(2)(B), as may sometime be
appropriate. However, the Court believes that the better practice is to require strict compliance with
both LR 7.1(a)(2)(B) and Rule 37(a)(1). The Court reads those rules as requiring that a good-faith
effort be made to obtain concurrence, which normally involves actual contact with an opposing
counsel or party. If no actual conversation occurs, the moving party must show that reasonable
efforts were undertaken to conduct a conference. All of that must be documented specifically in the
motion papers.

-2-

The Court is mindful that when counsel must deal with a pro se party unfamiliar with
conventional customs and courtesies, personal contact sometimes may be difficult or strained.
However, that potential inconvenience does not warrant dispensing with a rule that encourages
communication and negotiation pointed to a resolution of the interim and ultimate disputes that the
parties bring to the court. Relaxing the rule that mandates contact and communication is
counterproductive, especially in such cases.
The Court cannot find that the magistrate judge’s order absolving the plaintiff from
compliance with Local Rule 7.1(a) amounts to clear error. However, the Court believes it is unwise
and it departs from this Court’s general practice. Consequently, the Court will overrule the
defendants’ objection, but urge the magistrate judge to reconsider her decision to relax the
application of LR 7.1(a)(2)(B) and Rule 37(a)(1). It is the Court’s preference that all parties be
required to adhere to both the letter and spirit of those rules.
Accordingly, it is ORDERED that the defendants’ objections to Magistrate Judge Laurie
J. Michelson’s November 4, 2011 order regarding discovery are OVERRULED.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: November 28, 2011

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on November 28, 2011.
s/Deborah R. Tofil
DEBORAH R. TOFIL

-3-