Morway v. Dr. Scholl's Foot Comfort Shops, Inc. et al

Filing 24

ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS [#20] AND SETTING APRIL 17, 2013 STATUS CONFERENCE AND HEARING. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DEBRA MORWAY,
Plaintiff,
CASE NO. 11-cv-13529
HONORABLE GERSHWIN A. DRAIN

v.
MSD CONSUMER CARE, INC., et al.,
Defendants.
__________________________________/

ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF
DOCUMENTS [#20] AND SETTING APRIL 17, 2013 STATUS CONFERENCE AND
HEARING
The instant action arises out of Plaintiff’s injury and adverse chemical reaction from
Defendants’ footwear which allegedly contains paraphenylenedia-mine (PPDA), a hazardous
substance under 15 U.S.C. § 1261 et. seq. Presently before the Court is Plaintiff’s Motion to
Compel Production of Documents, filed on February 27, 2013. Defendants filed a Response on
March 11, 2013. The Court has ordered resolution of this matter pursuant to E.D. Mich. L.R.
7.1(f)(2). For the reasons discussed below, the Court GRANTS Plaintiff’s Motion to Compel
Production of Documents. The Court also ORDERS the parties to appear for a status conference and
hearing on Plaintiff’s request for attorney fees and costs on April 17, 2013 at 2:30 p.m.
This action has been pending for more than a year and the parties have yet to complete
discovery. Defendants removed this action on August 12, 2011. The original scheduling order set
a discovery deadline date of May 16, 2012. On October 5, 2012, the Court amended the scheduling
order extending discovery cutoff to April 3, 2013. In December of 2012, this matter was reassigned
to the undersigned.

In the present motion, Plaintiff asserts that she served requests for production on February
12, 2012, and Defendants have failed to produce any of her requested discovery. Plaintiff argues
that she cannot take meaningful testimony from Defendants’ representatives without the requested
documents, causing her to postpone the representatives’ noticed depositions. Plaintiff also seeks an
order enjoining Defendants from deposing her experts until she receives responses to her discovery
requests. Lastly, Plaintiff seeks her reasonable attorney fees and costs incurred as a result of
bringing the instant motion pursuant to Fed. R. Civ. P. 37(a)(5)(A)(“If the motion is granted . . . the
court must, after giving an opportunity to be heard, require the party. . . whose conduct necessitated
the motion,. . . or attorney advising the conduct, or both to pay the movant’s reasonable expenses
incurred in making the motion, including attorney’s fees.”).
In their Response, Defendants admit that they have requested and received numerous
extensions from Plaintiff due to the difficulties they have experienced obtaining the requested
documents from China, where the subject footwear was manufactured. However, Defendants also
claim that they have not responded to Plaintiff’s document requests because the parties agreed to
put discovery “on hold” to conduct settlement negotiations. When these discussions failed,
Defendants resumed discovery and served their answers to Plaintiff’s interrogatories.
As an initial matter, the Court notes that the parties are always encouraged to engage in
settlement negotiations throughout the pendency of an action. However, such discussions do not
serve to stay or otherwise toll the parties obligations to engage and cooperate in the discovery
process. Here, Plaintiff is entitled to complete responses to her discovery requests pursuant to Rule
37 of the Federal Rules of Civil Procedure. Defendants’ argument that much of the information
sought is irrelevant to her claims is an argument that should have been timely presented in an
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objection to her requests. See Fed. R. Civ. P. 34(b)(2)(A) and (B).
Accordingly, the Court GRANTS Plaintiff’s Motion to Compel [#20].
IT IS ORDERED that Defendants shall provide full and complete disclosure of documents
requested in Plaintiff’s First Request to Produce Documents on or before April l5, 2013.
IT IS FURTHER ORDERED that Defendants shall produce designated representatives for
deposition within thirty (30) days from the date of this Order.
IT IS FURTHER ORDERED that Defendants are hereby enjoined from deposing Plaintiff’s
experts until they have complied with the discovery deadlines set forth in this Order.
IT IS FURTHER ORDERED that the Court will conduct a hearing on Plaintiff’s request for
attorney fees and costs on April 17, 2013 at 2:30 p.m. Plaintiff SHALL file a statement and
documents supporting her request for attorney fees and costs no later than April 10, 2013.
IT IS FURTHER ORDERED that a status conference will be held after the hearing.

/s/Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Dated: April 8, 2013

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