C.H., a minor, et al v. UNITED STATES OF AMERICA

Filing 33

ORDER denying 24 Motion to Compel. Counsel is reminded to read the order in its entirety. Signed by US Magistrate Judge James E. Gates on 5/10/2013. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
5:11-CV-364-F
C.H., a minor, LINDA A. HUGHES and
ROBERT W. HUGHES,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

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ORDER

This case comes before the court on the motion (D.E. 24) by plaintiffs to compel
defendant to produce a sworn statement. The motion has been fully briefed 1 and referred to the
undersigned for disposition pursuant to 28 U.S.C. § 636(b)(1)(A). (See Minute Entry after D.E.
25). For the reasons set forth below, the motion will be denied.
BACKGROUND
This action was commenced pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671,
et seq., to recover damages for personal injuries sustained by the minor plaintiff in an accident at
the 2009 North Carolina State Fair, allegedly the result of defendant’s negligence.

(See

generally Compl. (D.E. 1)). Defendant conducted an investigation of the accident and, in the
course of it, Sergeant First Class Martello Houston gave a sworn statement (“Houston
statement”). (Martello Houston Dep. (D.E. 25-3) 33:3-17). A report was prepared in connection
with defendant’s investigation, and the Houston statement was one of 15 exhibits attached to the
report. During the course of discovery, defendant produced the report and various exhibits to it,
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In support of their motion, plaintiffs filed a memorandum (D.E. 24-1) with exhibit (D.E. 24-2). Defendant filed a
memorandum (D.E. 25), two declarations (D.E. 25-1, D.E. 25-2), and a deposition transcript (D.E. 25-3) in
opposition.

but did not produce the Houston statement. Defendant acknowledges that the Houston statement
existed at one time, but states that it cannot locate a copy of it at this time, despite an active
search. (See Christopher D. Simpson Dec. (D.E. 25-1) ¶¶ 6-13, 16-17; Joshua Pope Dec. (D.E.
25-2) ¶¶ 2, 4). By their motion, plaintiffs seek an order compelling defendant to produce the
statement.
DISCUSSION
The Federal Civil Rules enable parties to obtain information by serving requests for
discovery on each other, including requests for production of documents. See generally Fed. R.
Civ. P. 26-37. Rule 26 provides for a broad scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense . . . . For good cause, the court may order
discovery of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1). The rules of discovery, including Rule 26, are to be given broad and
liberal construction. Herbert v. Lando, 441 U.S. 153, 177 (1979); Nemecek v. Bd. of Governors,
No. 2:98-CV-62-BO, 2000 WL 33672978, at *4 (E.D.N.C. 27 Sep. 2000).
While the court does not doubt and defendant does not contest the relevance of the
Houston statement, the court cannot compel a party to produce a document that is not within its
possession, custody, or control. See Kelly v. United States, 281 F.R.D. 270, 278 (E.D.N.C. 2012)
(“Defendant further contends that it is unaware of any documents that respond to the request.
Again, the court cannot compel something that does not exist.”); Mainstreet Collection, Inc. v.
Kirkland's, Inc., 270 F.R.D. 238, 244 (E.D.N.C. 2010) (“Defendants maintain they possess no
pre-litigation privileged documents and therefore have no privilege log to discover. Again, the

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undersigned cannot compel production of an item that does not exist. Plaintiff’s Motion to
IN THE UNITED STATES DISTRICT COURT

FORlog is EASTERNdenied. The undersigned trusts that should any preTHE therefore DISTRICT OF NORTH CAROLINA

Compel the privilege
WESTERN DIVISION

5:11-MJ-01359-JG-l

litigation privileged documents surface, Defendants will promptly inform Plaintiff. Failure to do

so will subject Defendants to penalties.”).
UNITED STATES OF AMERICA,

Here, defendant has established that it cannot
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presently locate the Houston statement. The court therefore cannot order defendant to produce it
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v.
) ORDER DENYING APPOINTMENT
at this time. Of course, if defendant does subsequently locate the statement, it shall produce it
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OF COUNSEL
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(SEALED)
immediately. In addition, the court’s ruling does not preclude plaintiffs from pursuing other
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potential remedies or a limiting instruction arising from the missing statement. See, e.g. Joiner v.
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Defendant.
CHRISTOPHER YORK MAKEPEACE,

Choicepoint Servs., Inc., No. 1:05CV321, 2006 WL 2669370, at *3 (W.D.N.C. 15 Sept. 2006)
This case comes before the court on the issue ofappointment ofcounsel for Christopher York

(“Defendant has repeatedly assured Plaintiff that if it finds additional documents relating to these
Makepeace ("defendant"). Defendant has submitted a Financial Affidavit for purposes of such

requests, it will disclose its findings to Plaintiff. If Defendant is truly misrepresenting or failing
appointment (CJA Form 23). Defendant has failed to complete the "Obligations and Debts" section

to disclose evidence, upon the showing of such an instance the Court may be required to take
of the form and has failed to enter the date on which he executed the form. Without a complete

action under Rule 37 of the Federal Rules of Civil Procedure. Until such a showing is made,
application, the court is not able to determine whether defendant is entitled to appointment of

however, Plaintiff cannot compel Defendant to answer in a way that is more satisfactory to her
counsel. The appointment of counsel is therefore DENIED without prejudice to reconsideration of

simply on a hunch.”).
such appointment after the filing of a new Financial Affidavit which contains the missing

CONCLUSION
information.

For the foregoing reasons, plaintiffs’ motion to compel (D.E. 24) is DENIED.
This order shall be filed under seal.

SO ORDERED, this the 10th day of May 2013.
SO ORDERED, this 23rd day of May 2011.

_________________________
James E. Gates
United States Magistrate Judge

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