Berman v. UnumProvident Corporation

Filing 43

ORDER Granting in Part and Denying in Part Defendant's 34 Motion to Compel. Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK BERMAN,
Plaintiff,
Case No. 2:14-cv-12720
District Judge Gershwin A. Drain
Magistrate Judge Anthony P. Patti

v.

UNUMPROVIDENT CORPORATION,
et al.,
Defendants.
___________________________________/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
SECOND MOTION TO COMPEL (DE 34)
This matter is before the Court for consideration of Defendant’s second
motion to compel (DE 34), Plaintiff’s response (DE 36), and the parties joint status
report (DE 42). Defendant’s motion came before the Court for a hearing on July
15, 2015. For the reasons stated on the record, Defendant’s motion is GRANTED
IN PART AND DENIED IN PART. Specifically, the Court sustains Plaintiff’s
objection to the form of Defendant’s request for production of documents #9, but
will allow Defendant to cure the defect by the following process:
1. Before 5:00 p.m. on July 15, 2015, Defendant shall send to Plaintiff a
modified first request for production of documents #9 (“Request #9”), by

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email and fax, that conforms to the manner in which it requested the ADA
code information during the claims process.
2. Plaintiff will have six weeks from the electronic receipt of that request in
which to respond. If the request does not conform substantially to the
manner in which Defendant initially requested the information during the
claims process in a way that is problematic, Plaintiff may bring the issue to
the Court for resolution.
3. Defendant is ORDERED to pay Plaintiff for 16 hours of his office
manager’s time spent in compiling the response to Request #9, which is
reported to be $22.50 per hour, totaling $360. In addition, because
Plaintiff’s argument that responding to the modified request will cause
additional disruption in his business was compelling, Defendant is further
ORDERED to pay Plaintiff $1,000 for this inconvenience. This $1,360
payment must be tendered to Plaintiff or his counsel no later than AUGUST
15, 2015.
Both parties have requested that the Court award attorney fees for costs
incurred in bringing or responding to the motion. Federal Rule of Civil Procedure
37 provides that, when a motion to compel is granted in part and denied in part,
“the court may . . . after giving an opportunity to be heard, apportion reasonable

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expenses for the motion.” Fed. R. Civ. P. 37(c) (emphasis added). After finding
some degree of fault on both sides, the Court declines to do so here.
IT IS SO ORDERED.

Dated: July 15, 2015

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record
on July 15, 2015, electronically and/or by U.S. Mail.
s/ Michael Williams
Case Manager to the
Honorable Anthony P. Patti

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