Durham v. Mohr et al

Filing 62

OPINION AND ORDER denying 55 Motion to Compel; denying 58 Petition for Order to Reserve Evidence. Signed by Magistrate Judge Norah McCann King on 12/23/2015. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROY A. DURHAM, JR.,
Plaintiff,
vs.

Civil Action 2:14-cv-581
Judge Marbley
Magistrate Judge King

GARY C. MOHR, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on plaintiff’s motion to compel,
ECF 55 (“Motion to Compel”),1 and plaintiff’s Petition for Order to
Reserve Evidence, ECF 58 (“Motion to Preserve Evidence”).
I.

Background
The Complaint, ECF 3, was filed by plaintiff on June 17, 2014

when plaintiff was incarcerated at the Southern Ohio Correctional
Facility (“SOCF”).

On July 10, 2015, plaintiff, currently

incarcerated at the Toledo Correctional Institution (“ToCI”), filed
the Amended Complaint, ECF 8.
On December 24, 2015, plaintiff filed a motion for an order
compelling defendant Gary C. Mohr to produce certain information.
19.

ECF

The Court denied that motion, which appeared to be an initial

discovery request, and directed plaintiff to serve initial discovery
requests on defense counsel.

Order, ECF 20.

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Thereafter, plaintiff

Plaintiff’s motion, ECF 55, also asked that the Court extend case deadlines,
a request that the Court addressed in an earlier Order, ECF 56. See also
infra.

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requested that the Court reconsider this decision, representing that
he does not know the identity of defense counsel.

ECF 24.

In an

order resolving this request, the Court advised plaintiff on January
13, 2015, that defendants were represented by Thomas N. Anger, Esq.,
and provided Attorney Anger’s contact information in the Ohio Attorney
General’s office.

Order, ECF 27, p. 1.

After many of the defendants responded to the Amended Complaint,
see, e.g., ECF 28, 29, the Court established a case schedule that
requires, inter alia, that discovery be completed by June 1, 2015 and
that dispositive motions be filed by July 1, 2015.
ECF 30, pp. 1-2.

Scheduling Order,

The Court specifically advised that the discovery

completion date required that discovery requests be made sufficiently
in advance to permit timely response by that date.

Id.

On October 7, 2015, defendants moved to extend the dispositive
motion deadline, representing, inter alia, that, as of October 2,
2015, Attorney Anger was no longer employed by the Corrections
Litigation Unit and that new counsel, Gene D. Park, had recently taken
over representation of defendants in this action.

ECF 52, p. 4

(citing Declaration of Gene D. Park, ¶ 2 (“Park Declaration”),
attached thereto).
discovery.

ECF 55.

Plaintiff also requested additional time for
On October 14, 2015, the Court extended the

deadline for completing discovery to February 15, 2016 and the
deadline for filing dispositive motions to April 15, 2016.
56, p. 2.

Order, ECF

In extending these deadlines, the Court again reminded the

parties that the discovery completion date requires that discovery

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requests be made sufficiently in advance to permit timely response by
that date.

Id.

Plaintiff has now moved to compel certain information from
defendants, see generally Motion to Compel. Defendants oppose the
motion.

Defendants’ Response to Plaintiff’s Motion to Compel

Discovery, ECF 57 (“Opposition”).
filings.

Plaintiff has replied in two

See ECF 59 (pages 1-9); ECF 60 (pages 10-21) (collectively,

“Reply”).
II.

Standard
Rule 37 of the Federal Rules of Civil Procedure authorizes a

motion to compel discovery when a party fails to respond to
interrogatories submitted under Rule 33 and/or requests for production
of documents under Rule 34.

Fed. R. Civ. Pro. 37(a)(3)(B)(iii), (iv).

“The ‘proponent of a motion to compel discovery bears the initial
burden of proving that the information sought is relevant.’”

O'Malley

v. NaphCare Inc., No. 3:12-CV-326, 2015 WL 6180234, at *2 (S.D. Ohio
Oct. 21, 2015) (quoting Hendricks v. Hazzard, No. 2:11–cv–399, 2013 WL
4052873, at *3 (S.D. Ohio Aug. 12, 2013)).
Rule 26(b) provides that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s
claim or defense.”

Fed. R. Civ. P. 26(b)(1).

purposes is extremely broad.
389, 402 (6th Cir. 1998).

Relevance for discovery

Lewis v. ACB Bus. Servs., Inc., 135 F.3d

“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

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the discovery of admissible evidence.”

Mellon v. Cooper-Jarrett,

Inc., 424 F.2d 499, 500-01 (6th Cir. 1970).
In addition, the party moving to compel discovery must certify
that it “has in good faith conferred or attempted to confer with the
person or party failing to make disclosure or discovery in an effort
to obtain it without court action.”
also S.D. Ohio Civ. R. 37.2.

Fed. R. Civ. P. 37(a)(1).

See

Similarly, Local Rule 37.1 provides that

discovery related motions “shall not be filed in this Court under any
provision in Fed. R. Civ. P. 26 or 37 unless counsel have first
exhausted among themselves all extrajudicial means for resolving the
differences.”

S.D. Ohio Civ. R. 37.1.

III. Discussion
Defendants first argue that the Court should deny the Motion to
Compel because plaintiff fails to attach the required certification
under Rule 37(a)(1).

Opposition, pp. 2-3.

While it is true that

plaintiff’s motion omits the certification, the Court notes that
plaintiff attaches a declaration to the Reply that sets forth the
steps he purportedly took to obtain the requested discovery.

See

Declaration of Roy A. Durham, Jr., ECF 60, PAGEID#:1749-1751
(“Plaintiff’s Declaration”).

Under the particular circumstances of

this case, the Court concludes that plaintiff has sufficiently met the
requirements of Rule 37(a)(1).
At the heart of the parties’ discovery dispute is whether or not
plaintiff served discovery requests on defendants’ former counsel,
Attorney Anger, before filing the Motion to Compel.

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Plaintiff

represents that he sent letters addressed to Attorney Anger dated
March 15, 2015 and June 1, 2015, requesting certain discovery,
including, inter alia, certain video recordings allegedly involving
plaintiff.

See, e.g., Motion to Compel, PAGEID#:1685-1686; Exhibit 1-

B, ECF 55, PAGEID#:1696-1698 (copy of letter dated March 15, 2015);
Reply, PAGEID#:1734-1735, 1737-1739, 1741; Plaintiff’s Declaration, ¶¶
2, 4.

Plaintiff further represents that, when he did not receive any

response to his discovery requests, he followed up with Attorney Anger
by letter dated September 9, 2015.

See, e.g., Motion to Compel,

PAGEID#:1685-1686; Exhibit 1-A, ECF 55, PAGEID#:1699-1700 (copy of
letter dated September 9, 2015); Reply, PAGEID#:1734-1735, 1738-1739;
Plaintiff’s Declaration, ¶ 3.

Plaintiff also represents that, on

October 7, 2015, he sent copies of, inter alia, his letters dated
March 15, 2015 and September 9, 2015, “to the office of the Ohio
Attorney General, Criminal Justice Section[,]” but received no
response.

Plaintiff’s Declaration, ¶¶ 5-6.

Defendants, however, dispute that plaintiff sent letters dated
March 15, 2015 and June 1, 2015, and represent that current counsel’s
review of the case file reveals no such letters.

Opposition, pp. 2-3.

Defendants also contend that ToCI records undermine plaintiff’s
assertion that he mailed such letters.

First, defendants contend that

plaintiff’s ToCI inmate account does not show any transactions for
mail.

Id. (citing Exhibit 1, attached thereto).

Defendants next

contend that ToCI’s legal mail log from March 2015 does not reveal
that plaintiff sent outgoing mail to the Ohio Attorney General around

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the date of March 15, 2015.
thereto).

Id. at 2 (citing Exhibit 2, attached

Defendants also contend that inmate cash slips to purchase

postage do not show that plaintiff purchased any postage around the
date of March 15, 2015.

Id. (citing Exhibit 3, attached thereto).

Instead, defendants represent that the only letter dated June 1, 2015,
that counsel received from plaintiff was a cover letter regarding
motions in this case and in other cases, which did not contain any
discovery requests.

Id. (citing Exhibit 4, attached thereto).

For

all of these reasons, defendants take the position that they have
never received any discovery requests from plaintiff and that the
Court should therefore deny the Motion to Compel.

Id.

In reply, plaintiff insists that he mailed letters on March 15,
2015, June 1, 2015, and September 9, 2015, explaining why each one of
defendants’ attached exhibits does not conclusively establish that he
failed to mail these letters; plaintiff also notes that current
counsel does not represent that he did not find the letter dated
September 9, 2015 in the case file.

See generally Reply.

Based on this record, the Court is unable to determine whether
plaintiff served discovery requests prior to filing the Motion to
Compel.

A party cannot successfully move for an order compelling the

production of documents when that party did not first seek this
information in accordance with Rule 34.

See Fed. R. Civ. P.

37(a)(3)(B)(iv) (permitting a party to move for an order compelling
production when a party fails to respond to a request pursuant to Rule
34); McDermott v. Cont’l Airlines, Inc., No. 08-3557, 339 F. App’x

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552, at *560 (6th Cir. July 30, 2009) (finding no abuse of discretion
in denying motion to compel where moving party did not request
documents pursuant to Rule 34); Nilavar v. Mercy Health Sys. - W.
Ohio, 210 F.R.D. 597, 610 (S.D. Ohio 2002) (“However, Rule 34 is the
formal mechanism by which documents are to be requested, and
Plaintiff’s Motion to Compel Discovery is only viable as to documents
requested by that method.”).

Accordingly, because the Court cannot

confirm whether plaintiff first served his discovery requests before
moving to compel production of the requested documents, the Court
declines to grant the Motion to Compel.
The Court DENIES the Motion to Compel, but without prejudice to
renewal should defendants fail to respond to discovery requests
propounded by plaintiff on current defense counsel, Attorney Park.
The parties are REMINDED that the deadline for completing
discovery remains February 15, 2016 and the deadline for filing
dispositive motions remains April 15, 2016.

Order, ECF 56, p. 2.

parties are FURTHER REMINDED that the discovery completion date
requires that discovery requests be made sufficiently in advance to
permit timely response by that date.
Finally, plaintiff’s Motion to Preserve Evidence appears to
request an order compelling defendants to produce or preserve video
recordings that are the subject of the Motion to Compel.

For the

reasons previously stated, however, this request is not well-taken.

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The

WHEREUPON, plaintiff’s motion to compel, ECF 55, and plaintiff’s
Petition for Order to Reserve Evidence, ECF 58, are DENIED consistent
with the foregoing.

December 23, 2015

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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