Clumm v. Manes et al

Filing 66

OPINION AND ORDER : Plaintiffs Motion to Compel, Doc. No. 59, case no. 08-366 and Doc. No.47, case no. 08-567, is DENIED in part. Plaintiffs motion is STAYED pending resolution of Defendant Manes motion for summary judgment. Defendant Manes Motion for Protective Order, Doc. No. 57, case no. 08-366 and Doc. No. 46, case no. 08-567, is likewise STAYED pending resolution of her motion for summary judgment. Plaintiffs Motion to Strike, Doc. No. 62, case no. 08- 366 and Doc. No. 51, case no. 08- 567, is DENIED. Signed by Magistrate Judge Mark R. Abel on 5/27/10. Associated Cases: 2:08-cv-00366-GCS -NMK, 2:08-cv-00567-GCS-NMK (rew)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION WILLIAM A. CLUMM, Plaintiff, v. JANNA MANES, et al., Defendants. Case No. 2:08-CV-366 JUDGE SMITH MAGISTRATE JUDGE KING

WILLIAM A. CLUMM, Plaintiff, v. JANNA MANES, et al., Defendants. Case No. 2:08-CV-567 JUDGE SMITH MAGISTRATE JUDGE KING

OPINION AND ORDER Plaintiff, William A. Clumm ["Plaintiff"], an inmate at the Chillicothe Correctional Institution, brings this action against Janna Manes, Esq., and the law firm Stroock & Stroock & Lavan, LLP, for claims of alleged libel, slander, defamation, and violation of O.R.C. § 2921.13(F). Stroock & Stroock & Lavan, LLP, is a limited liability partnership under New York law. Defendant Manes is a partner in the firm's New York office and is a resident of the State of New York. The Court has jurisdiction based on diversity of citizenship, 28 U.S.C. § 1332. Plaintiff, the step-father of Defendant Manes, is incarcerated for the murder of his wife, Defendant Manes' mother. See Doc. No. 12 at 2. The Ohio Adult Parole Authority apparently recommended that Plaintiff be released from prison but Defendant Manes and her half sister, Plaintniff's daughter, sought reconsideration of the decision. Plaintiff's parole was rescinded and

Plaintiff remains incarcerated. Complaint, at 2, Doc. No. 6, case no. 08-366; Complaint, at 2, Doc. No. 8, case no. 08-567. The Complaints in both cases are identical, except that case no. 08-567 also names "Andrea," Defendant Manes' half-sister, as a defendant. Plaintiff alleges that the Defendants "locat[ed] parties to give false testimony either by misleading or paying them to do so in order to cause the Ohio Adult Parole Authority to illegally rescind the plaintiff's parole through the media of television, newspapers, internet websites and . . . false testimony . . . ." Complaints, at 1. Plaintiff claims that the "smear campaign" has resulted in an additional ten years incarceration to him. Complaints, at 2. This matter is before the Court for consideration of Defendant Mane's Motion for Protective Order, Doc. No. 57, case no. 08-366 and Doc. No. 46, case no. 08-567 and of Plaintiff's Motion to Compel, Doc. No. 59, case no. 08-366 and Doc. No. 47, case no. 08-567, as that motion relates to Defendant Manes.1 Plaintiff's Motion to Compel as It Relates to Defendant Manes Plaintiff has filed a motion pursuant to Fed. R. Civ. P. 37 to compel Defendant Janna Manes to answer Plaintiff's Interrogatories 3 and 4 and respond to Plaintiff's associated request for production of documents. Standard of Review Rule 37 permits a party to file a motion for an order compelling discovery if another party fails to respond to discovery requests, provided that the motion to compel includes a certification

Plaintiff's Motion to Compel, as it relates to the Defendant law firm, was addressed in a separate order which also granted that Defendant's Motion to Dismiss. Opinion and Order, Doc. No. 65, case no. 08-366 and Doc. No. 54, case no. 08-567.

1

2

that the movant has, in good faith, conferred or attempted to confer with the party failing to respond to the requests. Plaintiff has not certified that he made a good faith effort to obtain the discovery sought without court intervention. The Court will nevertheless address the merits of Plaintiff's motion since it appears that the parties cannot resolve the matter without court intervention. Determining the proper scope of discovery falls within the broad discretion of the trial court. Lewis v. ACB Business Services, Inc., 135 F.3d 389, 402 (6th Cir. 1998). Rule 37 authorizes a motion to compel discovery when a party fails to provide proper response to interrogatories under Rule 33 or requests for production of documents under Rule 34. Rule 37(a) expressly provides that "an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4). "Although a plaintiff should not be denied access to information necessary to establish [his] claim, neither may a plaintiff be permitted `to go fishing and a trial court retains discretion to determine that a discovery request is too broad and oppressive.'" Surles v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007), quoting Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 592 (5th Cir. 1978). "The proponent of a motion to compel discovery bears the initial burden of proving that the information sought is relevant." Martin v. Select Portfolio Serving Holding Corp., No. 1:05-CV-273, 2006 U.S. Dist. LEXIS 68779, at *2 (S.D. Ohio September 25, 2006), citing Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 154, 159 (D. D.C. 1999). Rule 26(b) provides that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . ." Fed. R. Civ. P. 26(b)(1). Relevance for discovery purposes is extremely broad. Miller v. Fed. Express Corp., 186 F.R.D. 376,

3

383 (W.D. Tenn. 1999). "The scope of examination permitted under Rule 26(b) is broader than that permitted at trial. The test is whether the line of interrogation is reasonably calculated to lead to the discovery of admissible evidence." Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 500-01 (6th Cir. 1970). Interrogatory No. 3 and Associated Request for Production Plaintiff seeks to compel Defendant Manes to respond to Interrogatory No. 3, which states: Please give a description, nature, custody, condition, and location of any books, documents, pictures, email or other tangible things relevant to the subject matter involved in the pending action (including daries [sic] or journals kept by you). Exhibit B attached to Doc. No. 49. Plaintiff also moves to compel Defendant Manes to produce all documents identified in response to that interrogatory. Defendant Manes responded to Interrogatory No. 3 as follows: Objection. Some of the books, documents, pictures, emails, and other tangible things that have been requested are protected by the work-product doctrine and/or the attorney-client privilege and are therefore not discoverable. Without waiving these objections, Defendant Janna Manes states that she possesses a transcript of the trial proceedings of State v. Clumm, copies of newspaper articles, a compact disc containing television interviews, and letters that may be relevant to the subject matter of the pending action. There are also various internet articles which are available for public access on the World Wide Web which may contain information relevant to this action. Exhibit C attached to Doc. No. 49. Defendant Manes also represents that she produced these materials to Plaintiff on February 8, 2010. Plaintiff contends that Defendant Manes' response is "evasive and incomplete." Motion to Compel, Doc. No. 59 at 1. Plaintiff insists that books are not subject to the attorney-client privilege and notes that he has not requested information from Defendant Manes' attorney. In response, Defendant Manes denies that she possesses any "books"responsive to this request and notes that

4

certain of the materials identified by her are protected by the work product doctrine and/or the attorney-client privilege. Defendant Manes' response to Interrogatory 3 and Plaintiff's associated request for production of documents is adequate. To the extent that Defendant Manes has withheld any documents as privileged or protected, she must of course comply with Fed. R. Civ. P. 26(b)(5), which addresses such materials. Interrogatory No. 4 and Motion for Protective Order Plaintiff's Interrogatory No. 4 states: Please give the identity and location (address) of persons having knowledge of any discoverable nature concerning and/or relevant to the subject matter involved in the pending action, whether it relates to the claims or defenses of the defendant. Exhibit A, ¶ 2, attached to Doc. No. 57, case no. 08-366. In response to this request, Defendant Manes provided her own name and work address and the name and work address of the attorney who represented her in connection with Plaintiff's parole proceedings, Mark Weaver. Defendant Manes' response also stated: The sister of Janna Manes, formerly known as Andrea Clumm. Andrea Clumm lives in fear of her father, William Clumm, and has legally changed her name in order to keep her identity protected. Her home address is also kept private in order to prevent her father from learning where she resides. Defendant Janna Manes objects to production of the legal name and home address of Andrea Clumm. Exhibit A, ¶ 3. In her Motion for Protective Order, Defendant Manes asks that she not be required to provide identifying information relating to "Andrea." According to Defendant Manes, "Andrea" lives in fear of Plaintiff and legally changed her name so that Plaintiff would be unable to contact her. She does not want her personal information disclosed to him. Defendant Manes also points out 5

that "Andrea" is located beyond the subpoena power of this Court because she does not reside in the State of Ohio but instead resides over 100 miles from the Chillicothe Correctional Institution. Although Plaintiff did not file a response to Defendant Manes' Motion for Protective Order, his Motion to Compel seeks a further response to Interrogatory No. 4 as it relates to "Andrea." Plaintiff states that he is "willing to compromise and serve ["Andrea"] via the court without her home address." Doc. No. 59, case no. 08-366 at 1. Plaintiff nevertheless seeks discovery of "Andrea's" name since she "chose to become public" by providing testimony to the Ohio Adult Parole Authority. Id. Plaintiff also contends that, as this interrogatory relates to other individuals, a further response is warranted because there "are numerous contacts with the press, [Defendant Manes] was present at the hearing and knows or can acquire their names with reasonable due dilence [sic] . . . ." Doc. No. 59 at 1. In response, Defendant Manes represents that she has already produced twentyfour newspaper and Internet articles regarding the parole hearing, some of which identify the names of the authors. Defendant Manes further represents that she does not recall the names of a police officer and a prison guard who testified at the parole hearing. As it relates to persons other than "Andrea," the Court concludes that Defendant Manes' response to Interrogatory No. 4 is adequate. Defendant Manes has identified various news articles for Plaintiff and represents that she does not recall the names of other individuals who testified at the hearing. Defendant Manes' response is neither evasive nor incomplete. As the parties' motions relate to the identification of "Andrea," the Court will defer ruling on those motions. Defendant Manes has filed a motion for summary judgment. Doc. No. 61, case no. 08-366, and Doc. No. 50, case no. 08-567. The arguments presented in that motion are based

6

almost entirely on issues of law that do not require discovery for resolution, including absolute immunity, quasi-judicial immunity and failure to state a claim upon which relief can be granted. Moreover, it presently appears that the resolution of that motion ­ whether in favor of Plaintiff or Defendant Manes ­ would apply with equal force to Plaintiff's claims against "Andrea." Should that motion for summary judgment be denied in whole or in part, the Court will revisit the issues addressed in Plaintiff's Motion to Compel and Defendant Manes' Motion for Protective Order. Plaintiff has filed a motion to strike the motion for summary judgment, Doc. No. 62, case no. 08-366 and Doc. No. 51, case no. 08-567, asserting that he never received the requests for admission referred to by Defendant Manes in her motion for summary judgment. Plaintiff's motion to strike is DENIED. Although Plaintiff may address that issue in his response to the motion for summary judgment, he presents no reason for striking the entire motion. Plaintiff may have until June 18, 2010, to make substantive response to the motion for summary judgment. Defendant Mane may reply within fourteen (14) days. WHEREUPON Plaintiff's Motion to Compel, Doc. No. 59, case no. 08-366 and Doc. No. 47, case no. 08-567, is DENIED in part. As this motion relates to the identification of "Andrea," Plaintiff's motion is STAYED pending resolution of Defendant Manes' motion for summary judgment. Defendant Manes' Motion for Protective Order, Doc. No. 57, case no. 08-366 and Doc. No. 46, case no. 08-567, is likewise STAYED pending resolution of her motion for summary judgment. Plaintiff's Motion to Strike, Doc. No. 62, case no. 08-366 and Doc. No. 51, case no. 08567, is DENIED.

IT IS SO ORDERED.

7

May 27, 2010 DATE

S/ Norah McCann King NORAH McCANN KING UNITED STATES MAGISTRATE JUDGE

8