Green v. Frisard

Filing 14

ORDER granting 12 Motion to Compel. See Order for further details. Signed by Magistrate Judge Dennis Howell on 04/07/14. (emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:13cv196
PHILLIP KYLE GREEN,

)
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Plaintiff,
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v.
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)
ELIZABETH PITRE FRISARD,
)
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Defendant.
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___________________________________ )

ORDER

Pending before the Court is the Motion to Compel [# 12]. Defendant moves
to compel Plaintiff to respond fully to its discovery requests. Plaintiff, who is
represented by counsel, failed to respond to Defendant’s motion. The Court,
therefore, deems Plaintiff to have no opposition to the granting of Defendant’s
motion. Upon a review of Defendant’s motion, the record, and the relevant legal
authority, the Court GRANTS the Motion to Compel [# 12].
I.

Legal Standard

Generally speaking, parties are entitled to discovery regarding any nonprivileged matter that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1).
“Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” Id. Where
a party fails to respond to an interrogatory or a request for production of
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documents, the party seeking discovery may move for an order compelling an
answer to the interrogatories or the production of documents responsive to the
request. Fed. R. Civ. P. 37(a)(3)(B). “Over the course of more than four decades,
district judges and magistrate judges in the Fourth Circuit . . . have repeatedly ruled
that the party or person resisting discovery, not the party moving to compel
discovery, bears the burden of persuasion.” Kinetic Concepts, Inc. v. ConvaTec
Inc., 268 F.R.D. 226, 243 (M.D.N.C. 2010) (collecting cases); Mainstreet
Collection, Inc. v. Kirkland’s, Inc., 270 F.R.D 238, 241 (E.D.N.C. 2010); Billips v.
Benco Steel, Inc., No. 5:10cv95, 2011 WL 4005933 (W.D.N.C. Sept. 8, 2011)
(Keesler, Mag. J.).
II.

Analysis

Defendant moves to compel Plaintiff to produce all documents responsive to
Document Request No. 6 and to provide the information responsive to
Interrogatories No. 11 and No. 18. Plaintiff failed to respond to Defendant’s
motion. Upon the Court’s review of the pleadings in this case and the relevant
legal authority, the Court finds that the requested documents and information is
relevant, and Plaintiff has failed to demonstrate any reason why discovery of these
documents and information is not appropriate in this case. Accordingly, the Court
GRANTS the Motion to Compel [# 12] and DIRECTS the parties as follows:

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(1)

Plaintiff shall produce all documents responsive to Request for
Production No. 6 within ten (10) days of the entry of this Order.

(2)

Plaintiff shall provide Defendant with the information requested by
Interrogatories No. 11 and No. 18 within ten (10) days of the entry of
this Order.

(3)

The failure to produce the information and documents within the ten
(10) day time period will result in the imposition of sanctions against
Plaintiff and/or Plaintiff’s counsel.

(4)

Pursuant to Rule 37(a)(5), the Court AWARDS Defendant its
reasonable expenses and attorney’s fees in bringing the Motion to
Compel as Plaintiff failed to demonstrate that his nondisclosure was
substantially justified. Counsel for Plaintiff shall pay the costs of
Defendant’s expenses and attorney’s fees in filing the Motion to
Compel. The Court DIRECTS the parties to Confer within ten (10)
days of the entry of this Order in an attempt to determine the
reasonable amount of these expenses. If the parties cannot agree as to
the amount, Defendant shall submit a request for expenses and
attorney’s fees to the Court with supporting affidavits within ten (10)
days of the entry of this Order, and the Court will determine whether
the requested amount is reasonable.
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Signed: April 7, 2014

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