Rote et al v. Zel Custom Manufacturing LLC et al

Filing 143

ORDER granting 130 Motion to Compel. Signed by Magistrate Judge Terence P. Kemp on 2/16/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Troy Rote, et al.,
Plaintiffs,
v.

:
:
:

Case No. 2:13-cv-1189

Zel Custom Manufacturing, LLC,:
et al.,
Defendants.
:

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

ORDER
This case is before the Court to resolve an outstanding
issue relating to discovery. On January 26, 2017, Defendant
Dirección General de Fabricaciones Militares (DGFM) filed a
motion to compel discovery seeking to obtain some of the
ammunition in Plaintiffs’ possession that came from the same box
as the cartridge which is the subject of this case.

The motion

represented that if any destructive testing occurred, other
parties would be invited to attend and record that process.

DGFM

claimed, however, that Plaintiffs conditioned any release of the
cartridges on Plaintiffs’ being able to dictate what testing
could be performed.
The Court subsequently convened a telephone conference at
which it appeared that this issue could be resolved without the
need for further motions practice.

However, shortly after the

conference, Plaintiffs filed an opposing memorandum, and then a
supplemental opposing memorandum, stating that although
Plaintiffs stand ready to produce the ammunition once a written
agreement as to the production and testing is prepared and
signed, that has not occurred.

That has led DGFM to file a reply

in which it agrees not to perform destructive testing and to bear
the cost of any production and testing of the cartridges.
The Court is unable to find any actual disagreement in the
positions set forth in the briefing.

Ordinarily, those

circumstances lead to an agreement rather than a Court order.
Because that has not happened here, the Court grants the motion
to compel (Doc. 130).

Within seven days of the date of this

order, Plaintiffs shall deliver two of the cartridges in question
to counsel for DGFM.

DGFM may conduct such visual inspection,

measuring, photographing, and other non-destructive procedures as
it deems necessary.

It shall return the cartridges to

Plaintiffs, in an unchanged condition, at the conclusion of the
inspection.

All reasonable costs associated with the delivery,

inspection, and return of the cartridges shall be borne by DGFM.

/s/ Terence P. Kemp
United States Magistrate Judge

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