Smith v. City of Billings et al

Filing 38

ORDER granting 27 Motion to Compel. Smith must provide the information discussed in this Order to Defendants on or before May 26, 2014. Signed by Magistrate Judge Carolyn S Ostby on 4/23/2014. Mailed to Smith. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
CV 13-107-BLG-SEH-CSO

BENJAMIN KARL SMITH,
Plaintiff,

ORDER

vs.
CITY OF BILLINGS, BILLINGS
POLICE DEPARTMENT, CHIEF
ST. JOHN and OFFICER
MORRISON,
Defendants.

This matter is pending on Defendants’ Motion to Compel
Discovery. ECF 27. Plaintiff, Benjamin Smith, did not respond to
Defendants’ motion. Pursuant to Local Rule 7.1(d)(B)(ii), a failure to
file a response to a motion may be deemed an admission that the motion
is well-taken. The Motion to Compel will be granted.
I. Legal Standard for Motions to Compel
The Court has broad discretion to manage discovery. Hunt v.
County of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (citation omitted);

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Jeff D. v. Otter, 643 F.3d 278, 289 (9th Cir. 2011) (citing Little v. City of
Seattle, 863 F.2d 681, 685 (9th Cir.1988)).
If no claim of privilege applies, the production of evidence can be
compelled regarding any matter that is “relevant to any party's claim or
defense . . . ” Fed.R.Civ.P. 26(b)(1). The Court can limit discovery
requests if it finds that “the burden or expense of the proposed
discovery outweighs its likely benefit, taking into account the needs of
the case, the amount in controversy, the parties’ resources, the
importance of the issues at stake in the litigation, and the importance of
the proposed discovery in resolving the issues.” Fed.R.Civ.P.
26(b)(2)(C)(iii).
II. Discussion
A. Interrogatory No. 3
This interrogatory asks Smith to describe every encounter with
law enforcement that he has had the past ten years. Even though
Smith is in prison, he must provide Defendants with a list of every
encounter with law enforcement that he can recall in the past ten years.
If he cannot recall any such encounters, he must so state.

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B. Request for Production No. 3 and 11
These requests seek copies of all documents which relate to or
support Smith’s claims for damages including income tax returns for
the preceding seven years. Smith responded that he does not have the
resources to provide this information. ECF 28-1 at 4.
To the best of his recollection, Smith must specifically list the
amount of the value of each item of damages he seeks and how he will
establish that value. If he does not have documents to support the
value of each item of damages, he must state whether such documents
exist, and if so where they are located and who has custody or control of
those documents. Defendants can provide Smith with a release to
obtain copies of tax returns.
C. Request for Production No. 4
This request seeks copies of all Smith’s medical records for the
past ten years. The only medical records that appear to be relevant to
Smith’s claims are those for the treatment for psychological, psychiatric,
mental and emotional health. Therefore, Smith must provide
Defendants a list of all such treatments he has received in the past ten

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years to the best of his recollection, including the identification of the
names and locations of the treatment providers.
D. Request for Production No. 8
Defendants seek copies of the documents Smith expects to use at
trial. Smith responded that he would use the documents that were part
of his criminal case, including the motion to suppress filed by his
criminal defense attorney.
To the extent that Smith intends to use any documents that are
not in the public record in his criminal case, he must identify those
documents and inform the Defendants how they can get a copy of those
documents.
E. Interrogatory No. 11
Defendants ask Smith to identify every individual whom he spoke
with regarding his discovery responses. Smith must provide a brief
description of the nature of his conversations with the Montana Bar
Association, the Montana Ethics Committee, and the NAACP. He need
not disclose requests for legal advice or any legal advice which he may
have obtained during these conversations. He need only provide a brief

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statement regarding what these conversations were generally about.
Based on the foregoing, the Court issues the following:
ORDER
1. Defendants’ Motion to Compel (ECF 27) is granted. Smith
must provide the information discussed in this Order to Defendants on
or before May 26, 2014.
2. If Smith fails to comply with this Order, his case may be
dismissed or he may be prohibited from introducing at trial any
evidence requested in discovery but not provided. See Fed.R.Civ.P.
37(b)(2)(A).
DATED this 23rd day of April, 2014.
/s/ Carolyn S. Ostby
United States Magistrate Judge

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