Cummerlander et al v. Patriot Preparatory Academy et al
Filing
67
ORDER denying 43 Motion for Discovery; granting in part and denying in part 46 Motion to Compel; granting in part and denying in part 47 Motion to Compel; granting in part and denying in part 48 Motion to Compel; granting 49 Motion for Extension of Time. The parties shall provide additional discovery or disclosures as provided for and within the time limits set in the order. Defendants' expert disclosure date is extended to May 31, 2014. Signed by Magistrate Judge Terence P Kemp on 5/16/15. (Kemp, Terence)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Phyllis Cummerlander, et al.,
:
Case No. 2:13-cv-0329
Plaintiffs,
:
JUDGE ALGENON L. MARBLEY
v.
:
Magistrate Judge Kemp
Patriot Preparatory Academy,
et al.,
Defendants.
:
:
OPINION AND ORDER
This matter is before the Court on several motions.
More
specifically, currently before the Court for consideration are
plaintiffs’ motion for leave to serve additional interrogatories
instanter (Doc. #43), plaintiffs’ motion to compel defendant
Pamela Gould to comply with discovery (Doc. #46), plaintiffs’
motion to compel defendant Patriot Preparatory Academy to comply
with discovery (Doc. #48), defendants’ motion to compel
plaintiffs to produce evidentiary materials related to their
alleged damages (Doc. #47), and defendants’ motion to extend the
expert disclosure deadline (Doc. #49).
For the reasons set forth below, plaintiffs’ motion for
leave to serve additional interrogatories instanter
will be denied (Doc. #43), plaintiffs’ motion to compel Ms. Gould
to comply with discovery will be granted in part and denied in
part (Doc. #46), plaintiffs’ motion to compel defendant Patriot
Preparatory Academy to comply with discovery will be granted in
part and denied in part (Doc. #48), defendants’ motion to compel
plaintiffs to produce evidentiary materials related to their
alleged damages will be granted in part and denied in part (Doc.
#47), and defendants’ motion to extend the expert disclosure
deadline will be granted (Doc. #49).
I. Background
Phyllis Cummerlander filed this case as parent and guardian
of her minor son, referred to as “JT.”
The case revolves around
a short suspension from school which was imposed on JT when he
supposedly tested positive for marijuana use – a charge he denied
and which, according to the amended complaint, he successfully
refuted.
Ms. Cummerlander filed this action on her own behalf
and on behalf of JT against JT’s school, Patriot Preparatory
Academy, Inc. d/b/a Patriot Preparatory Academy (“Patriot
Academy”), superintendent H. David McIlrath, administrator and
secondary principal Sean Smith, teacher Charles A. Kabealo,
school nurse Pamela Gould, and a minor and student at the school
referred to as “CP.”
The amended complaint sets forth claims for
a violation of 42 U.S.C. §1983 based on denial of the rights
guaranteed by the Fourth Amendment to the United States
Constitution (count I), interference with and/or destruction of
evidence (count II), defamation (count III), a violation of 42
U.S.C. §1983 based on civil conspiracy (count IV), tortious
misconduct based on negligent misidentification (count V), and
filial consortium (count VI).
Plaintiffs seek 1.5 million
dollars in damages.
II.
Discussion
The Court first examines plaintiffs’ motions and next
examines defendants’ motions.
A. Plaintiffs’ Motion for Leave to Serve Additional
Interrogatories Instanter
This Court first examines plaintiffs’ motion for leave to
serve additional interrogatories instanter.
(Doc. #43).
Prior
to filing the motion, plaintiffs served seven interrogatories on
Patriot Academy, thereby exceeding the twenty-five interrogatory
limit set forth in Fed. R. Civ. P. 33(a)(1).
According to
plaintiffs, they served the interrogatories without seeking leave
-2-
of Court based on the following:
(a). Rule 26(f) conference experience wherein counsels
[sic], in response to concern regarding the limit, agreed
with the suggestion of the court to act reasonably with
respect to interrogatories in excess of twenty-five;
(b). Plaintiffs [sic] counsel has acted reasonably with
respect to service of interrogatories in excess of the
limit and, as a result, has never served interrogatories
in excess of the limit challenged on that ground; and
(c). Defendants did not object, and indeed substantively
responded, to interrogatories in excess of the limit
served on Defendant Pamela Gould.
Id. at 2 (footnotes omitted).
Plaintiffs argue that Patriot
Academy refused to answer the interrogatories numbered 3-9 and
“went so far as to refuse to participate in a Local Rule 37.1
informal conference to deal with this discovery dispute....”
at 2-3.
Id.
Plaintiffs generally argue that the interrogatories seek
relevant, discoverable, and “non-duplicative information not more
conveniently available elsewhere,” but they do not include the
substance of the interrogatories in the motion.
Id. at 3.
Defendants collectively oppose plaintiffs’ motion, arguing
that Patriot Academy declined to respond to the seven
interrogatories on the ground that they exceed the maximum number
of interrogatories permitted by Fed. R. Civ. P. 33(a).
Defendants argue:
Plaintiffs have not provided with its [sic] motion the
interrogatories that are the subject of the request.
Plaintiffs have not complied with the requirements of
Rule 37(a) of the Federal Rules, and Rule 37.2 of the
Local Rules. This is an ongoing discovery dispute, and
therefore Plaintiff [sic] must not only inform the court
of the discovery requests that are in dispute, but also
provide the court with evidence and an affidavit
addressing good faith efforts to resolve the dispute.
(Doc. #44 at 1).
Defendants further assert that the Court should
deny the motion based upon Fed. R. Civ. P. 26(b)(2)(C) because
-3-
the discovery requested is unreasonably cumulative and
duplicative, and plaintiffs fail to make a particularized showing
as to why the additional interrogatories are necessary.
Finally,
defendants argue that Ms. Gould responded to additional
interrogatories because this Court directed her to do so in an
informal conference.
Defendants argue that they “should not be
punished for their willingness to participate in the informal
discovery dispute resolution process, and for having respected
the wishes of the magistrate.”
Id. at 4.
In reply, plaintiffs assert that they indeed complied with
Rule 37 and attach “additional documentation which separately
certifies as to the Rule 37 conference requirement.”
at 3).
(Doc. #45
Plaintiffs argue that they should not be required to set
forth the need for the additional interrogatories.
Nevertheless,
plaintiffs contend that if they must show need, the following
satisfies that requirement:
Interrogatory No. 3 seeks information regarding potential
witnesses i.e., students in the homeroom when JT
allegedly said he smoked marijuana. This responds to the
Magistrate’s informal discovery dispute conference
suggestion that this information should be requested by
interrogatory rather than as a Rule 26(a)(1) initial
disclosure.
Interrogatories 4-6 seek information
relevant to the drug testing kit used by the Academy to
conclude that JT smoked marijuana.
This information,
necessarily circumstantial as a consequence of the
Academy [sic] destruction of the kit actually used, bears
on the validity of the drug test and, as a result, the
efficacy of Defendants claim that JT smoked marijuana.
Interrogatory No. 7 bears on Defendants claim that
consent was provided for the drug test administered to
JT. Interrogatory No. 8 speaks to the reasonableness of
testing JT for marijuana.
Interrogatory No. 9 seeks
information regarding Defendants claim that JT not only
used marijuana but also possessed it for sale and/or
distribution.
Id. at 4.
Based on the foregoing, plaintiffs argue that “[e]ach
of the Additional Interrogatories is clearly relevant and
-4-
consequently ‘necessary.’” Id.
Fed. R. Civ. P. 33 states, in pertinent part, “Unless
otherwise stipulated or ordered by the court, a party may serve
on any other party no more than 25 written interrogatories,
including all discrete subparts.”
Fed. R. Civ. P. 33(a)(1).
Here, there is no dispute that plaintiffs served, and Patriot
Academy answered, 25 written interrogatories.
Consequently, the
additional interrogatories, without stipulation or leave of
Court, are prohibited under Fed. R. Civ. P. 33.
Fed. R. Civ. P.
33 also provides, however, that leave to serve additional
interrogatories may be granted to the extent consistent with Fed.
R. Civ. P. 26(b)(2).
In their motion, plaintiffs make general assertions that the
interrogatories are relevant, discoverable, and non-duplicative.
They also argue that defendants are taking a “hyper-technical
application of the twenty-five interrogatory limit . . which
renders reasonableness impotent....”
(Doc. #43 at 3). Despite
their criticism of defendants’ approach, plaintiffs do not
demonstrate that their own approach to discovery has been
reasonable, nor do they provide the substance of the
interrogatories at issue.
In their reply, plaintiffs again make
the general argument that “[b]ased on the number of Defendants in
this case and the complexity of the claims and defenses, this
evidence, e.g., discovery requests, responses and related
information, is voluminous, complex and nuanced.”
3).
(Doc. #45 at
According to plaintiffs, “it is for this reason, and in
particular related judicial economy, that the ‘necessity’ of a
discovery request is not grounds on which the request may be
challenged.”
Id.
This Court disagrees.
Fed. R. Civ. P. 26(b)(2)(C) requires
the Court to limit the frequency or extent of discovery otherwise
allowed under the relevant rules if it determines that:
-5-
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source
that is more convenient, less burdensome, or less
expensive;
(ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action; or
(iii) the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of
the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the
action, and the importance of the discovery in resolving
the issues.
Fed. R. Civ. P. 26(b)(2)(C).
Determinations as to whether the
discovery will be permitted under Fed. R. Civ. P. 26(b)(2)(C) are
made on a case-by-case basis and, by definition, involve an
examination of whether the discovery is necessary and reasonable
under the circumstances.
See Myers v. Prudential Ins. Co. of
Am., 581 F. Supp. 2d 904, 914 (E.D. Tenn. 2008).
Plaintiffs provide the interrogatories at issue for the
first time in their reply.
The interrogatories consist of the
following:
Interrogatory No. 3: Identify by student name on the
attached Exhibit A the seat location of each and every
student assigned to and/or present in the Charles Kebealo
class homeroom period at any time during April 20, 2012.
Answer:
Interrogatory No. 4: Describe the process and any related
procedure(s) by which drug testing kits are procured,
used and/or disposed of by the Academy? [sic]
Answer:
Interrogatory No. 5: Identify by name, address and
telephone number the vendor(s) or other source(s) from
which drug kits are procured by the Academy.
Answer:
-6-
Interrogatory No. 6: Identify by brand name, or other
information identifying the manufacturer, of the drug
kit(s) possessed by the Academy on April 20, 2012 and/or
on the date of response to this Interrogatory.
Answer:
Interrogatory No. 7: What specific action(s) were taken
to obtain the “consent” of JT and/or Phyllis Cummerlander
regarding the drug testing of JT on April 20, 2012?
Answer:
Interrogatory No. 8: What specific action(s) were taken
by and/or on behalf of the Academy to investigate the
allegation that JT smoked marijuana on April 20, 2012?
Answer:
Interrogatory No. 9: Identify any and all source(s) of
information, including names, address and telephone
number, forming the basis for or otherwise contributing
to Academy Disciplinary Matter No. 202697 (dated April
20, 2012) which identifies JT with the “ . . . sale or
distribution of drugs”.
Answer:
(Doc. #45, Ex. 1).
Although plaintiffs provide a brief argument
concerning what is sought in each interrogatory, they argue only
generally that the additional interrogatories are “not
unreasonably duplicative and/or cumulative.”
Id. at 4-5.
Based on the record before it, this Court is unable to
determine under Fed. R. Civ. P. 26(b)(2)(C) whether the discovery
sought is unreasonably cumulative or duplicative.
At a minimum,
the Court would need to examine the previous written
interrogatories to determine whether this information could have
been obtained in the initial twenty-five interrogatories allowed
pursuant to Fed. R. Civ. P. 33.
Plaintiffs’ general arguments
suggest a presumption of entitlement to this discovery, likely
because it consists of a relatively limited number of
-7-
interrogatories.
Such a presumption, however, runs counter to
the fact that this discovery rule, like any other discovery rule
requiring the parties to apply for leave of Court, provides this
Court discretion to make a determination which is fair and
equitable under all the relevant circumstances.
See generally
Innomed Labs, LLC v. Alza Corp., 211 F.R.D. 237, 239 (S.D.N.Y.
2002).
Because the record before it is insufficient to allow
this Court to determine whether the interrogatories requested are
reasonable in light of the other discovery sought in this case,
particularly the initial interrogatories, the motion (Doc. #43)
will be denied without prejudice to plaintiffs’ refiling of their
motion with supporting evidence and argument as set forth in Fed.
R. Civ. P. 26(b)(2), or, alternatively, an agreement among
counsel about this issue.
B. Plaintiffs’ Motion to Compel Defendant Pamela Gould to Comply
with Plaintiffs’ First Discovery Request
The Court now turns to plaintiffs’ motion to compel
defendant Pamela Gould to compel with plaintiffs’ first discovery
request.
(Doc. #46).
According to plaintiffs, Ms. Gould is a
registered nurse employed by Patriot Academy who falsely claimed
that JT’s urine tested positive for marijuana, despite having no
involvement in its collection and testing.
Plaintiffs deposed
Ms. Gould and served her with two discovery requests.
Plaintiffs
argue that “Defendant Gould has refused to provide information
relevant to her role in the violation of JT’s constitutional
right against unreasonable search, false accusation of the
commission of the crime of marijuana use, and publication of the
accusation that J.T. smoked marijuana.”
Id. at 3-4 (footnote
omitted).
Turning to the specific discovery requests at issue,
Interrogatory No. 12 asked, and Ms. Gould responded, as follows:
Interrogatory No. 12:
What action(s) did you take to
-8-
insure [sic] that the urine specimen provided by JT on
April 20, 2013 in which you found marijuana was not
contaminated?
Answer:
I did not collect the sample.
Mr. Smith
followed the instructions that accompanied the test kit.
In the motion to compel, plaintiffs argue that Ms. Gould’s
response is evasive and unresponsive “because it does not
indicate what actions she took or if none that she took none.”
(Doc. #46 at 3).
In response, Ms. Gould states that she did not
collect the urine sample and, consequently, she cannot “state
what action(s) she took to insure [sic] the urine specimen was
not contaminated.”
(Doc. #51 at 2).
Ms. Gould argues that if
she were to answer “none,” it would imply that she had the
opportunity to take any such action.
In reply, plaintiffs
contend that Ms. Gould’s opposition “simply continues the
evasion.”
(Doc. #55 at 3).
Fed. R. Civ. P. 37(a)(4) provides that an evasive or
incomplete disclosure, answer, or response to a discovery request
must be treated as a failure to disclose, answer, or respond.
Here, the Court finds that Ms. Gould’s response is, intentionally
or not, evasive.
The Court agrees with plaintiffs that a
responsive answer requires Ms. Gould to describe any action she
took to ensure that the specimen was not contaminated.
Alternatively, if she took no action, a responsive answer would
state just that.
Contrary to Ms. Gould’s argument, a response
stating that she took no action does not imply that she had an
opportunity to act and if she wishes to qualify her answer with
that information, she is free to do so.
Consequently, pursuant
to Fed. R. Civ. P. 37(a)(4), plaintiffs’ motion to compel Ms.
Gould to respond to Interrogatory No. 12 will be granted.
The Court now turns to Interrogatory Nos. 14, 15, 17, and
18.
Those interrogatories asked, and Ms. Gould responded, as
-9-
follows:
Interrogatory 14: Identify any and all source(s) of
information, including names, address and telephone
number, forming the basis for or otherwise contributing
to your assertion that the “reasonable basis” you
referenced during your August 26, 2013 deposition was
present with respect to the collecting and testing of the
urine specimen provided by JT on April 20, 2012.
Answer: Because I do not have the transcript of my
deposition, I cannot answer this question.
Interrogatory No. 15: Describe the “reasonable basis” you
referenced during your August 26, 2013 deposition as
support for the collection and testing og [sic] the urine
specimen JT provided on April 20, 2012.
Answer: Because I do not have the transcript of my
deposition, I cannot answer this.
Interrogatory No. 17: Did you consider the negative
impact on JT’s mental and/or physical health an
inaccurate reading of his April 20, 2012 urine specimen
for marijuana could present when you participated in the
testing of the April 20, 2012 drug test. [sic] If so,
please explain within context of your professed concern
for JT’s safety and the safety of others.
Answer: I believe I answered questions about this in my
deposition.
Interrogatory No. 18: Did you investigate and/or
participate in the investigation of the allegation that
JT smoked marijuana on April 20, 2012? If not, why not.
If so, what were the results?
Answer: I believe I answered questions about this in my
deposition.
Plaintiffs argue that “with respect to Interrogatory Nos.
14, 15, 17 and 18, Defendant refused to comply with the January
16, 2014 informal discovery dispute conference agreement, made at
the suggestion of the Magistrate, that the reference [sic]
deposition transcript is supplemented with information which
permits ready access to the aspect of the transcript the response
-10-
communicates, such as page and line numbers.”
(Doc. #46 at 4).
In opposition, Ms. Gould states that she supplemented her
responses to the interrogatories as follows:
Interrogatory 14: Identify any and all source(s) of
information, including names, address and telephone
number, forming the basis for or otherwise contributing
to your assertion that the “reasonable basis” you
referenced during your August 26, 2013 deposition was
present with respect to the collecting and testing of the
urine specimen provided by JT on April 20, 2012.
Answer: I believe I answered questions about this in my
deposition. Please see pages 41 and 42 of my deposition
transcript.
Interrogatory No. 15: Describe the “reasonable basis” you
referenced during your August 26, 2013 deposition as
support for the collection and testing og [sic] the urine
specimen JT provided on April 20, 2012.
Answer: I believe I answered questions about this in my
deposition. Please see pages 41 and 42 of my deposition
transcript.
Interrogatory No. 17: Did you consider the negative
impact on JT’s mental and/or physical health an
inaccurate reading of his April 20, 2012 urine specimen
for marijuana could present when you participated in the
testing of the April 20, 2012 drug test. [sic] If so,
please explain within context of your professed concern
for JT’s safety and the safety of others.
Answer: I was not asked to assess this. I gave a test
kit to the principal when he asked for one.
I later
looked at the testing medium and wrote an e-mail message
stating my impressions of the conditions of the testing
medium. I was aware that the principal recommended a
more in-depth test be conducted at a laboratory. I had
no further involvement.
Interrogatory No. 18: Did you investigate and/or
participate in the investigation of the allegation that
JT smoked marijuana on April 20, 2012? If not why not.
If so, what were the results?
Answer: Please see my response to question #17.
-11-
(Doc. #51 at 3-5).
With respect to Interrogatory Nos. 14 and 15,
Ms. Gould claims that her supplemental responses provide the
information that plaintiffs requested.
As such, Ms. Gould claims
that “Plaintiffs’ argument with respect Interrogatory Nos. 14 and
15 is irrelevant.”
Id. at 4. In response to Ms. Gould’s
arguments concerning Interrogatory Nos. 14 and 15, plaintiffs
argue that Ms. Gould’s supplemental responses were untimely and
“incomplete because the specific location on the referenced
deposition page was not provided, leaving Plaintiffs to guess
what her response to the discovery request is.”
(Doc. #55 at 3).
This Court has reviewed Ms. Gould’s responses to
Interrogatory Nos. 14 and 15 and finds those responses to be
acceptable within the relevant rules.
As noted above, Ms.
Gould’s revised responses refer plaintiffs to the relevant pages
of her deposition.
Plaintiffs do not argue that Ms. Gould
provided inadequate answers during the portion of the deposition
reflected on those pages, nor do they argue that her deposition
testimony inadequately responds to the interrogatories at issue.
Instead, plaintiffs merely argue that Ms. Gould’s responses
should have directed them to the proper lines, rather than pages,
of the deposition.
Because this Court finds that Ms. Gould’s
reference to the specific pages is an acceptable response to the
interrogatories asked, plaintiffs’ motion to compel Ms. Gould’s
answers to Interrogatory Nos. 14 and 15 will be denied.
As to plaintiffs’ motion to compel answers to Interrogatory
Nos. 17 and 18, Ms. Gould argues:
Plaintiffs claim in their motion to compel that
Defendant’s responses remain evasive because she did not
answer the question “Did you.” Defendant specifically
lists the steps that she took with respect to Plaintiff
J.T.’s urine specimen. She states exactly what was asked
of her with regard to the urine specimen and the steps
she took to fulfill that which she was asked. Defendant
cannot make up an answer that Plaintiffs wish to hear,
nor is she required to revise her responses to state,
-12-
“Yes, I did” or “No, I did not.”
Id. at 5.
On the ground that “[s]he answered the questions
posed,” Ms. Gould urges the Court to deny the motion to compel
these responses.
Id.
In response, plaintiffs claim that Ms.
Gould’s responses remain evasive.
The Court agrees with plaintiffs.
As plaintiffs argue, they
did not ask what steps Ms. Gould took with respect to the urine
sample – the question which is answered by Ms. Gould’s responses.
Because Ms. Gould has yet to answer the questions plaintiffs
asked and instead provided evasive answers under Fed. R. Civ. P.
37(a)(4), plaintiffs’ motion to compel responses to Interrogatory
Nos. 17 and 18 will be granted.
The Court now turns to the disputed requests for production
of documents.
In Requests No. 2 and 3, plaintiffs requested the
following:
Request No. 2: Any and all documents identifying training
and/or
education
you
have
undertaken,
whether
successfully completed or not, with respect to the
collection of drug testing specimen(s), including in
particular urine specimen.
Request No. 3: Any and all documents identifying training
and/or
education
you
have
undertaken,
whether
successfully completed or not, with respect to the
analysis of drug testing specimen(s), including in
particular urine specimen.
Ms. Gould’s initial response to these requests was that she did
“not have such records in [her] possession.”
Subsequent to a
discovery conference with this Court, however, Ms. Gould produced
her college transcript.
In their motion to compel, plaintiffs argue that Ms. Gould
improperly refuses to provide authentication for her college
transcript.
In opposition, Ms. Gould argues that plaintiffs are
requesting a document from a nonparty.
Ms. Gould states that
“[i]f Plaintiffs are unsatisfied with [her] participatory
-13-
responses, then they can subpoena the documents from the
appropriate nonparty custodian.”
(Doc. #51 at 6).
In reply,
plaintiffs “submit that it is inconceivable that the source of
the alleged transcript did not reveal its authenticated identity
in connection with providing the document” to Ms. Gould.
#55 at 5).
(Doc.
Plaintiffs argue that Ms. Gould must provide this
information if her discovery is to be complete.
This Court agrees with Ms. Gould.
Ms. Gould obtained and
produced a copy of her college transcript.
If plaintiffs are
dissatisfied with this production and seek additional
authenticating documents, the proper way to obtain such documents
would be by issuing a subpoena under Fed. R. Civ. P. 45 to the
nonparty that they believe possesses such documents.
Ms. Gould
has indicated that she does not have any additional responsive
documents.
As such, plaintiffs’ motion to compel Ms. Gould to
produce documents in response to Requests No. 2 and 3 will be
denied.
Turning to plaintiffs’ Requests No. 5, 6, and 8, plaintiffs
requested, and Ms. Gould responded, as follows:
Request No. 5: Any and all documents regarding and/or
related to directions and/or instruction with respect to
use of drug testing and/or screening methodology employed
with respect to the April 20, 2012 urine specimen
provided by JT.
Answer: I do not have the instructions for the test kit
used that day.
Request No. 6: Any and all documents and/or other source
of information provided to any party, including any
Defendant, the Reynoldsburg City School District Board of
Education, Ohio Department of Education, Ohio Board of
Nursing and/or United States Department of Education,
mentioning, regarding and/or otherwise relevant to the
Incident.
Answer: I do not have any such documents.
-14-
Request No. 8: Any and all documents containing,
mentioning, referencing and/or otherwise regarding the
allegation that JT smoked, used, and/or otherwise
possessed marijuana on April 20, 2012 provided to and/or
received from any party, person and/or entity.
Answer: I do not have any such records.
As to these document requests, plaintiffs argue that Ms. Gould
“has refused to provide documents, or a response which speaks to
whether responsive documents are, in her custody and/or control.”
(Doc. #46 at 4).
In opposition, Ms. Gould states that she
accurately responded to the requests by stating that she does not
have any such documents in her custody and/or control.
Plainly
stated, Ms. Gould argues that she “cannot produce documents that
she does not have.”
(Doc. #51 at 7).
In reply, defendants
argue:
When considered with Defendant Gould’s response that she
does not have drug training and/or background documents
she discovered in response to Plaintiffs’ observation
that she must produce documents under her control,
Defendant Gould’s argument lack [sic] credibility.
Having unsuccessfully attempted to ‘game’ the discovery
rules with evasive “I do not have” reply to Plaintiffs’
discovery request for training and/or background
documents in her possession, custody and/or control,
Defendant Gould’s evasive reply to Plaintiffs’ request
for responsive documents under her control should also
fail.
(Doc. #55 at 5).
On this basis, plaintiffs request this Court to
compel Ms. Gould to provide responsive documents.
Ordinarily, the representation of a party’s attorney that no
documents exist is sufficient to defeat a motion to compel absent
credible evidence that the representation is inaccurate.
Consequently, if plaintiffs “do not provide any evidence
demonstrating that responsive documents do, in fact, exist and
are being unlawfully withheld, their motion to compel must fail.”
Alexander v. F.B.I., 194 F.R.D. 299, 301 (D.D.C. 2000).
-15-
Here,
Ms. Gould represented, through counsel, and in a written response
to the document requests at issue, that she has no responsive
documents.
Plaintiffs make broad arguments alleging that Ms.
Gould is participating in gamesmanship in the discovery process,
but they do not provide credible evidence that the representation
by her counsel is inaccurate.
Of course, counsel have an
affirmative obligation to ensure that what their clients tell
them is accurate, see Bratka v. Anheuser-Busch Co., Inc., 164
F.R.D. 448, 461 (S.D. Ohio 1995), and the Court presumes that
they have discharged their duties in this case accordingly.
Consequently, plaintiffs’ motion to compel Requests No. 5, 6, and
8 will be denied.
In summary, plaintiffs’ motion to compel Ms. Gould to comply
with discovery (Doc. #46) will be granted in part and denied in
part.
More specifically, plaintiffs’ motion to compel Ms. Gould
to respond to Interrogatory Nos. 12, 17, and 18 will be granted,
and their motion to compel Ms. Gould’s answers to Interrogatory
Nos. 14 and 15 will be denied.
Plaintiffs’ motion to compel Ms.
Gould to produce documents in response to Requests No. 2, 3 and
5, 6, and 8 will also be denied.
C. Plaintiffs’ Motion to Compel Defendant Patriot Academy
The Court next examines plaintiffs’ motion to compel Patriot
Academy to supplement its initial disclosures and respond to
plaintiffs’ first discovery request.
(Doc. #48).
With respect
to the initial disclosures, plaintiffs argue that Patriot Academy
refuses to provide the names, addresses and/or telephone numbers
of each Patriot Academy student present in the classroom in which
J.T. allegedly said he smoked marijuana on April 20, 2012.
According to plaintiffs, each of these students “is likely, as a
consequence of such presence, to have discoverable information,
such as whether J.T. said he smoked marijuana and the presence of
Defendant Smith in the classroom, that the disclosing party may
-16-
use to support its claims or defenses, such as the claim that
J.T. said he smoked marijuana....”
Id. at 4.
In response, Patriot Academy argues that it has no duty to
supplement the initial disclosures.
Specifically, Patriot
Academy argues that the information requested is protected by the
Family Educational Rights and Privacy Act of 1974 (“FERPA”), and
it has no intention of using it in support of its claims or
defenses in this case.
On this basis, Patriot Academy urges that
the motion for this information should be denied.
Plaintiffs did
not file a reply brief in support of its motion.
Fed. R. Civ. P. 26(a)(1)(A)(i) requires the disclosing party
to provide “the name and, if known, the address and telephone
number of each individual likely to have discoverable information
– along with the subjects of that information – that the
disclosing party may use to support its claims or defenses....”
As noted above, Patriot Academy states that it will not use
information from the individuals at issue in support of its
claims or defenses in this case.
Hence, this information does
not fall within the scope of Fed. R. Civ. P. 26, and the Court
need not address whether it is protected under FERPA.
Because
Patriot Academy has no requirement to disclose information that
it will not use, plaintiffs’ motion to compel supplemental
initial disclosures will be denied.
The Court now turns to the portion of plaintiffs’ motion
that requests this Court to compel Patriot Academy to respond to
plaintiffs’ first discovery request.
More specifically,
plaintiffs raise issues with respect to Patriot Academy’s
responses to Interrogatory Nos. 11, 13, 14, 17, and 20.
Plaintiffs also argue that Patriot Academy’s response to Request
for Admission No. 6 is evasive.
In Interrogatories Nos. 11 and 13, plaintiffs asked, and
Patriot Academy responded, as follows:
-17-
Interrogatory No. 11: State the basis for each denial of
allegations made in the Complaint, including the
identification of each and every document which such
statement references or otherwise on which it relies, in
any manner whatsoever.
Answer: Defendant objects to this Interrogatory.
It
implies that Defendant bears the burden of proving the
negative.
Without waiving this objection, Defendant
responded to several requests by Plaintiff’s [sic]
counsel for documentation regarding [JT]. All of the
documentation in Defendant’s possession is now in the
possession of Plaintiff’s [sic] counsel.
Interrogatory No. 13: State the basis for each denial of
each denied admission, including the identification of
each and every document which such statement references
or otherwise on which it relies, in any manner
whatsoever.
Answer: Defendant objects. This Interrogatory implies
that Defendant bears the burden of proving a negative.
Without waiving this objection, all documentation in
Defendant’s possession pertinent to [JT] has been
produced to Plaintiff’s [sic] counsel.
Plaintiffs argue that Patriot Academy’s responses to
Interrogatory Nos. 11 and 13 are evasive and fail to provide the
requested facts.
In opposition, Patriot Academy urges the Court
to consider its specific objections as well as its general
objections that the requests are overly broad, unduly burdensome,
and seek information already produced in discovery.
Patriot
Academy further argues that the requests call for “the mental and
strategic impressions of legal counsel” and “would require a
burdensome process of attempting to identify each document that
might form the basis of an unspecified denial or admission and
then provide a comprehensive summary of each and every fact,
action or occurrence.”
(Doc. #53 at 3-4).
This Court first examines Interrogatory No. 11, which
requests the basis for Patriot Academy’s denial of allegations in
the complaint.
It also seeks identification of the documents
-18-
Patriot Academy relied on in making those denials.
In Downs v.
Brasted, No. 92-1611-MLB, 1993 WL 273370, at *1 (D. Kansas June
28, 1993), defendants sought relief from having to respond to
requests for admission which asked them to admit or deny
allegations quoted from each paragraph of the complaint.
Defendants also sought relief from having to respond to
interrogatories accompanying each request for admission which
required defendants to explain a response that was something
other than an unqualified admission.
In reviewing defendants’
motion for a protective order, the Court found that the proposed
requests for admission and interrogatories constituted “an abuse
of the discovery process.”
The Court stated:
It is inappropriate for a plaintiff to attempt to require
the defendant to admit or deny nearly every paragraph of
their complaint. Defendants have filed their answer. If
plaintiffs believe that the answer does not comply with
the rules, then plaintiffs can file a motion seeking to
have the defendants supplement their answer. The court
can then determine whether or not the answer is
sufficient.
However, a plaintiff cannot serve such
requests for admission just because he or she believes
the answers to be insufficient.
Id.
Consequently, the Court granted the motion for a protective
order, finding that defendants did not have to respond to the
requests for admission or the interrogatories corresponding to
those requests.
The situation presented in this case is slightly different,
in that plaintiffs did not seek this information through the
requests for admission, but instead posed an interrogatory that
relates directly to the denials made in the answer to the
complaint.
Nevertheless, the Court finds the Brasted decision to
be persuasive.
Patriot Academy has filed its answer, and
plaintiffs have not argued that the answer is deficient or fails
to comply with the relevant rules.
To require Patriot Academy to
explain each denial in its answer and to identify the documents
-19-
that it relied upon in making those denials would be unduly
burdensome.
Consequently, plaintiffs’ motion to compel a
response to Interrogatory No. 11 will be denied.
This Court now turns to Interrogatory No. 13, which requests
the basis for each request for admission denied by Patriot
Academy, including the identification of any document Patriot
Academy relied on in making the denial.
Interrogatories which
reference requests for admission are permissible under Fed. R.
Civ. P. 33.
See Dang v. Cross, No. CV 00 13001 GAF(RZX), 2002 WL
432197, at *2 (C.D. Cal. Mar. 18, 2002).
In addition, a
plaintiff may properly use an interrogatory to request that a
defendant identify documents used to support responses to
requests for admission.
See Barrett v. Reynolds, No. 8:12CV328,
2014 WL 1223330, at *2 (D. Neb. Mar. 24, 2014).
Contrary to
Patriot Academy’s argument, the requested information is not
privileged or otherwise protected by the work product doctrine.
See Mead Corp. v. Riverwood Natural Res. Corp., 145 F.R.D. 512,
518 (D. Minn. 1992).
Moreover, by its own admission, Patriot
Academy has already produced this information in discovery.
Because the interrogatory is a proper request seeking relevant
information, Patriot Academy will be ordered to supplement its
response to provide the basis for each denial and citation to the
documents responsive to this request.
In Interrogatory No. 14, plaintiffs asked, and Patriot
Academy responded, as follows:
Interrogatory No. 14: Identify any and all source(s) of
information, including names, address and telephone
number, forming the basis for or otherwise contributing
to Academy Disciplinary Matter No. 202697 (dated April
20, 2012) which identifies JT with the “use, possession,
sale or distribution of drugs”.
Answer: Please see the response to Interrogatory #2, the
testimony of Sean Smith, and the documents which
previously were produced to Plaintiff’s [sic] counsel
-20-
before suit was filed.
In their motion, plaintiffs request that Patriot Academy
identify the location of the testimony in the referenced
deposition transcript and identify specifically the documents
referenced.
In opposition, Patriot Academy argues that its
response is adequate because plaintiffs’ request is for
“sources,” which it identified.
Id. at 4.
The Court agrees that
Patriot Academy’s answer to plaintiffs’ request for the sources
of information is responsive.
Accordingly, plaintiffs’ motion to
compel Patriot Academy to provide a supplemental response to
Interrogatory No. 14 will be denied.
In Interrogatories Nos. 17 and 20, plaintiffs asked, and
Patriot Academy responded, as follows:
Interrogatory No. 17: What specific characteristics did
the urine specimen JT provided on April 20, 2012 display
in support of the conclusion that the specimen was
positive for marijuana?
Answer: Please see the testimony of Defendant Sean Smith
and Pamela Gould, provided in their depositions.
Interrogatory No. 20: Identify by name, address, and
telephone number(s) any and all persons, including
Academy staff and/or students, with whom the Incident was
discussed and/or to whom the incident, including in
particular the expulsion of JT, was disclosed.
Answer: Defendant objects to this Interrogatory in that
it makes inaccurate assumptions. Plaintiff [JT] was not
expelled.
Without waiving this objection, Defendants
Smith and Gould have testified in their depositions
regarding with whom they discussed the “Incident.” [JT]
and Phyllis Cummerlander discussed the “Incident” with
Yolanda Oulds-Briggs, Debra Toyloy and James Duff. Ms.
Toyloy and Mr. Duff have testified regarding their
interactions with [JT] and Ms. Cummerlander. Joseph Tann
wrote to the Reynoldsburg School District, the Ohio
Department of Education and the United States Department
of Education, and Defendant responded to inquiries from
those agencies.
-21-
Plaintiffs argue that Patriot Academy’s response to
Interrogatory No. 17 is evasive and unresponsive.
More
specifically, plaintiffs again argue that “[t]he reply references
testimony and documents without adequately identifying the
referenced testimony and documents.”
(Doc. #48 at 5).
Plaintiffs also argue that defendants’ reply to Interrogatory No.
20 “references testimony provided by Defendants Gould and Smith
without the locations specifics.....”
Id.
In response, Patriot
Academy states that it will revise and resubmit its responses to
direct plaintiffs to the relevant portion of the deposition
transcript.
Given that Patriot Academy has agreed to revise and
resubmit its responses to Interrogatories Nos. 17 and 20,
plaintiffs’ motion to compel this information will be denied as
moot.
Turning to plaintiffs’ Request for Admission No. 6,
plaintiffs asked, and Patriot Academy responded, as follows:
Admission No. 6: Academy has and/or is aware of no
evidence of any nature whatsoever that JT possessed
drugs, e.g., marijuana, for “sale or distribution” on
April 20, 2012.
Answer: Defendant objects, for the purported quotation
from the discipline record is incomplete and inaccurate,
and therefore misleading.
Without waiving this
objection, Defendant admits that it does not know if [JT]
sold or distributed marijuana on April 20, 2012.
Plaintiffs argue that Patriot Academy’s response is evasive.
According to plaintiffs, “[t]he admission is with respect to
concrete and unambiguous ‘evidence’ not the vague and ambiguous
what Defendant ‘knows.’” (Doc. #48 at 5).
In opposition, Patriot
Academy argues:
the request is not the type of categorical request
benefitting a request for admission. The request is both
conjunctive and disjunctive and contains an unattributed
quotation.
On its face the form of the request is
objectionable. Nonetheless, Defendant Academy ventured
-22-
an answer admitting a lack of knowledge.
(Doc. #53 at 5).
On this basis, Patriot Academy urges that its
objection to the request should be well taken.
This Court agrees with plaintiffs and finds the answer
unresponsive.
drugs.
The request pertains to evidence that JT possessed
It does not seek information about Patriot Academy’s
knowledge as to whether JT sold or distributed marijuana on April
20, 2012.
Simply put, if Patriot Academy is aware of no evidence
that JT possessed drugs on April 20, 2012, it must admit the
request.
On the other hand, if it has or is aware of evidence
that JT possessed drugs on April 20, 2012, Patriot Academy must
deny the request.
Because Patriot Academy’s answer to this
request is unresponsive, plaintiffs’ motion to compel the
requested information will be granted.
In summary, plaintiffs’ motion to compel Patriot Academy to
comply with discovery is granted in part and denied in part.
(Doc. #48).
Specifically, plaintiffs’ motion to compel
supplemental initial disclosures and responses to Interrogatory
Nos. 11, 14, 17, and 20 will be denied.
However, plaintiffs’
motion to compel Patriot Academy to respond to Interrogatory No.
13 and Request for Admission No. 6 will be granted.
D. Defendants’ Motion to Compel
The Court now turns to defendants’ motion to compel.
#47).
(Doc.
In the motion, defendants move this Court to compel
plaintiffs to produce evidentiary materials relating to their
alleged damages.
More specifically, defendants request
plaintiffs to:
(1) provide proper and substantive responses to
Defendants’ discovery requests concerning Plaintiffs’
damages (i.e., Interrogatory #2 and Document Requests
Nos. 6, 8, & 9, propounded on each Plaintiff); (2) permit
inspection and copy of all records alluded to in
Plaintiffs’ initial disclosures; and/or (3) simply
indicate “no such documents are in plaintiffs’ possession
-23-
or under their control” where that is the case.
Id. at 2-3.
Plaintiffs’ counsel made a settlement demand of 1.5
million dollars on January 1, 2014.
In Interrogatory No. 2, defendants asked, and plaintiffs
responded, as follows:
Interrogatory No. 2: Itemize and show how you calculate
all losses, expenses, or other damages which you claim
were incurred by you or on your behalf as a result of the
allegations contained in your Complaint, including, but
not limiting your answer to, those losses or expenses
that are attributable to lost wages and benefits, legal
expenses and court costs, as a result of the alleged
actions of Defendants.
JT’s Answer: To the extent this information, if any, is
not privileged, Plaintiffs have not yet calculated “all
losses, expenses, or other damages”. Pending discovery
may be relevant to this determination.
Ms. Cummerlander’s Answer: To the extent this information
is not privileged work product, this calculation has not
yet occurred due in large part to the absence of
necessary variables.
Defendants claim that months later, after significant discovery
has taken place, “Plaintiffs have not supplemented their answers,
despite multiple requests to do so.”
Id. at 3.
Defendants argue
that, aside from listing categories of damages in their
supplemented initial disclosures, plaintiffs have failed to
provide any specific information regarding their alleged damages.
On this basis, defendants seek an order compelling plaintiffs to
respond to Interrogatory No. 2.
Defendants also claim that plaintiffs have refused to
provide proper responses to Document Request Nos. 6, 8, and 9.
In those requests, defendants asked, and plaintiffs responded, as
follows:
Request No. 6: Any and all “document(s)” as defined
herein relating in any way to your claim that Defendants,
one or more of them, inflicted emotional distress upon
-24-
you.
JT’s and Ms. Cummerlander’s Answer: None apart from
privileged documents, if any, and/or those provided by
Defendants.
Will
provide
agreed
on
medical
information/records authorization.
Request No. 8: Any and all “document(s)” as defined
herein relating in any way to your claim that you
suffered harm as a result of acts or omissions of
Defendants, or any one or more of them.
JT’s and Ms. Cummerlander’s Answer: None apart from
privileged documents, if any, and/or those provided by
Defendants.
Will
provide
agreed
on
medical
information/records authorization.
Request No. 9: Any and all “document(s)” as defined
herein relating in any way to the damages you seek.
JT’s and Ms. Cummerlander’s Answer: None apart from
privileged documents, if any, and/or those provided by
Defendants.
Will
provide
agreed
on
medical
information/records authorization.
According to defendants, plaintiffs have produced no documents
responsive to these requests.
Defendants argue that plaintiffs
“simply indicate that they have provided Defendants access to a
portion of their medical records and Defendants should be able to
figure out who paid for what, what was not reimbursed, and which
items are claimed as damages caused by one or more Defendant.”
Id. at 5.
Defendants move this Court to issue an order
compelling “proper and substantive responses” to the requests, on
the ground that “they should not have to guess as to what medical
records or other documents may be responsive to these requests.”
Id.
Defendants argue that, although plaintiffs’ supplemental
disclosures indicate that plaintiffs will make documents relating
to their damages available, plaintiffs have not allowed
defendants access to those documents.
-25-
More specifically,
defendants claim they have tried to arrange to inspect the
documents referenced in plaintiffs’ supplemental initial
disclosures, but plaintiffs’ counsel “has been evasive and
refused to permit inspection.”
Id.
Consequently, defendants
seek an order compelling plaintiffs to provide dates for
inspection and copying, or to provide true and correct copies of
the documents to them.
Plaintiffs oppose the motion, arguing that it seeks
protected work product as well as “medical/counseling records”
that were “already provided and/or made available” to defendants.
(Doc. #54 at 3).
Plaintiffs claim that “[i]n all other respects,
the vagueness of the Motion precludes a response and compels
denial.”
Id.
Plaintiffs likewise argue that the motion “serves
no legitimate purpose,” “because Defendants need not include
unsubstantiated damages in their settlement offer or counter
offer calculations and may seek this Court’s permission to
preclude damages information requested by Defendants and not
provided by Plaintiffs from trial....”
Id. at 3-4.
In reply, defendants argue that, although the mental
impressions and interpretation of evidence made by plaintiffs’
counsel may be protected, “the evidence itself is not.”
#61 at 2).
(Doc.
Despite plaintiffs’ arguments to the contrary,
defendants maintain that plaintiffs’ initial disclosures and
discovery responses remain incomplete and in violation of the
Federal Rules of Civil Procedure.
Fed. R. Civ. P. 26(a)(1)(A)(iii) requires plaintiffs to
provide defendants with “a computation of each category of
damages claimed.”
It also requires plaintiffs to:
make available for inspection and copying as under Rule
34 the documents or other evidentiary material, unless
privileged or protected from disclosure, on which each
computation is based, including materials bearing on the
nature and extent of injuries suffered[.]
-26-
Id.
In their supplemental initial disclosures, plaintiffs state
the following with respect to the damages claimed in their
complaint:
The damages claimed by Plaintiffs include the cost of
attending to the physical, mental and other personal
consequences which Plaintiffs suffered and continue to
suffer as a result of the deprivation of constitutional
rights, defamation, infliction of emotional distress and
accusation of committing a crime perpetrated by
Defendants, consequential damages unknown at this time,
punitive damages, costs and attorney’s fees.
On the
basis of Plaintiffs [sic] review of relevant statutes,
such as 42 U.S.C. 1981a, and 42 U.S.C. 1988, case law,
such as State Farm Mutual Automobile Insurance Co. vs.
Campbell, et al., 538 U.S. 408 (2003), and relevant jury
awards, Plaintiffs [sic] damages consist of (1). medical,
[sic] and counseling costs access to which Plaintiffs
have authorized Defendants of; (2). mental anguish,
anxiety and/or emotional distress of $700,000 ($350,000
for each Plaintiff); (3). punitive damages of $2.1
million ($1,050 million for each Plaintiff); and (4).
attorney fees yet to be determined. To the extent not
privileged, documents and other evidentiary material
relating to the computation of damages, if any, are
available for inspection.
In this case, plaintiffs do not provide a computation of
each category of damages they claim, nor do they specify the
documents relied on in reaching their alleged damages.
Consequently, plaintiffs will be ordered to comply with Fed. R.
Civ. P. 26(a) fully by disclosing a calculation of alleged
damages for each category asserted with documentary support.
If,
as plaintiffs claim, they have already produced all relevant
documents not protected by privilege or the work product
doctrine, plaintiffs should direct defendants to the relevant
documents produced in discovery.
If plaintiffs fail to comply
with this order, they will be precluded from offering any damages
evidence not produced in discovery or any damage calculation not
based on documents produced in discovery.
See Richmond v.
General Nutrition Ctrs., Inc., No. 08 Civ. 3577(PAE)(HBP), 2012
-27-
WL 762307, at *8 (S.D.N.Y. Mar. 9, 2012).
Consequently,
defendants’ motion to compel a proper response to initial
disclosures will be granted.
Because the additional discovery
sought by defendants seeks the same information required by Fed.
R. Civ. P. 26(a), the remainder of defendants’ motion will be
denied as moot.
-28-
E. Defendants’ Motion for Extension of Time
Last, the Court examines defendants’ motion to extend the
expert disclosure deadline.
(Doc. #49).
arguments in support of their motion.
Defendants make three
First, defendants state
that they have had difficulty obtaining records from plaintiffs’
physicians.
Next, defendants claim that they have not had an
opportunity to depose Lyndsy Carson, a registered nurse, who
proffered testimony about an alleged photo of the initial drug
test administered by Patriot Academy.
Finally, defendants claim
that they agreed to delay taking plaintiffs’ depositions to
accommodate the academic calendar, so that they could occur over
spring break. Defendants request that the deadline for disclosure
of its experts be extended until May 31, 2014.
Plaintiffs oppose
the motion, arguing that there is no good cause for extending the
deadline, and defendants have not been diligent in pursuing
discovery.
In reply, defendants maintain that there is good
cause for extending the deadline.
There is no question that, in order to obtain relief from a
deadline set in an order pursuant to Fed. R. Civ. P. 16(b), the
party asking for an extension must show good cause.
That good
cause showing usually takes the form of evidence that, despite
the exercise of reasonable diligence, the party was unable to
meet the date.
Deghand v. Wal-Mart Stores, 904 F. Supp. 1218,
1221 (D. Kan. 1995).
Although lack of prejudice to the opposing
party is also a consideration, it is not the deciding factor.
Tschanz v. McCann, 60 F.R.D. 568, 571 (N.D. Ind. 1995).
In this case, as in any case in which the Court is asked to
extend deadlines, the Court must use its sound and practical
judgment in deciding if, based on the circumstances presented,
defendants have been sufficiently diligent to justify extending
the schedule.
Here, the evidence reflects that defendants have
experienced some delay in receiving medical records.
-29-
For
example, the record reflects that defendants received the medical
authorization from plaintiffs on January 18, 2014, they issued a
subpoena for records on February 11, 2014, but they did not
receive the requested records until March 18, 2014.
The record
also reflects that, despite efforts to do so, defendants have not
yet had an opportunity to depose Lyndsy Carson.
More
significantly, however, defendants demonstrate that, despite due
diligence, they were unable to depose plaintiffs until April 18,
2014.
Based on the foregoing, defendants have provided this
Court with ample support demonstrating that they were diligent in
trying to meet the Court’s deadline.
Consequently, defendants’
motion to extend the expert disclosure deadline until May 31,
2014 will be granted.
(Doc. #49).
III.
Conclusion
For the reasons set forth above, the Court makes the
following findings:
Plaintiffs’ motion for leave to serve additional
interrogatories instanter (Doc. #43) is denied without
prejudice to plaintiffs refiling the motion with
supporting evidence and argument as set forth in Fed. R.
Civ. P. 26(b)(2);
Plaintiffs’ motion to compel Ms. Gould to comply with
discovery is granted in part and denied in part.
(Doc.
#46).
Specifically, plaintiffs’ motion to compel Ms.
Gould to respond to Interrogatory Nos. 12, 17, and 18 is
granted.
Ms.
Gould
shall
respond
to
those
interrogatories within 10 days of the issuance of this
Opinion and Order. Plaintiffs’ motion is denied to the
extent that it seeks to compel Ms. Gould’s answers to
Interrogatory Nos. 14 and 15 and documents in response to
Requests No. 2, 3 and 5, 6, and 8;
Plaintiffs’ motion to compel Patriot Academy to comply
with discovery is granted in part and denied in part.
(Doc. #48). Specifically, plaintiffs’ motion to compel
supplemental initial disclosures and responses to
Interrogatory Nos. 11, 14, 17, and 20 is denied.
However, plaintiffs’ motion to compel Patriot Academy to
respond to Interrogatory No. 13 and Request for Admission
-30-
No. 6 is granted.
Patriot Academy shall respond to
Interrogatory No. 13 and Request for Admission No. 6
within 10 days of the issuance of this Opinion and Order;
Defendants’ motion to compel plaintiffs to produce
evidentiary materials related to their alleged damages is
granted in part and denied in part.
(Doc. #47).
Specifically, defendants’ motion to compel a proper
response to initial disclosures is granted. Plaintiffs
shall provide responsive disclosures within 10 days of
the issuance of this Opinion and Order.
Because the
additional discovery sought by defendants requests the
same information required by Fed. R. Civ. P. 26(a), the
remainder of defendants’ motion is denied as moot; and
For good cause shown, defendants’ motion to extend the
expert disclosure deadline is granted. (Doc. #49). The
deadline for disclosure of defendants’ experts is
extended until May 31, 2014.
IV. Motion to Reconsider
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.
The motion must specifically designate the order or
part in question and the basis for any objection.
Responses to
objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.
S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge
-31-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?