Martin v. Posey et al
ORDER denying 42 , 43 , and 44 Motions for Leave; denying as moot 45 Motion to Compel; denying 46 and 47 Motions to Compel; denying 49 Motion for alternate service; granting 50 Motion for Extension of Time to Complete Discovery; gr anting 53 Motion to Depose Plaintiff; denying 54 Motion to Appoint Counsel; striking 57 Motion for Mr. Posey to undergo a voice stress analysis; granting 59 Motion for Leave to File sur-reply for the limited purpose of addressing the issu es raised by 51 Motion to Compel; granting 61 Motion for Extension of Time to Complete Discovery; denying as moot 63 Motion to Stay; denying as moot 70 Motion for Leave to File; denying 71 Motion for Emergency Relief. Signed by Magistrate Judge Terence P. Kemp on 1/31/2017. (agm)(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
Cody Posey, et al.,
Case No. 2:15-cv-2294
JUDGE GEORGE C. SMITH
Magistrate Judge Kemp
This prisoner civil rights case is before the Court on a
variety of pending motions.
These motions include numerous
motions filed by plaintiff Ronald Martin, namely:
motions for leave to file additional admissions (Docs. 42 and
44); a motion for leave to file additional interrogatories (Doc.
43); four motions to compel (Docs. 45, 46, 47, and 51); a motion
for alternate service (Doc. 49); a motion for extension of time
to complete discovery (Doc. 50); a motion to appoint counsel
(Doc. 54); a motion to have defendant Cody Posey undergo a
computerized voice stress analyzer (Doc. 57); a motion for a
temporary stay (Doc. 63); a motion to file a sur-reply (Doc. 70);
and a motion for emergency relief (Doc. 71).
Posey, Woody Coey, and Brent Cruse have also filed a motion to
depose Mr. Martin (Doc. 53); a motion for leave to file a surreply (Doc. 59); and a motion for an extension of time to
complete discovery (Doc. 61).
The Court resolves all of these
motions as follows.
Mr. Martin, an inmate at the Chillicothe Correctional
Institution filed this 42 U.S.C. §1983 action alleging violations
of his First and Fourteenth Amendment rights as a result of
Mr. Martin’s complaint arises from the same
event that forms one of the bases for the complaint filed in
Robison v. Coey, Case No. 2:14-cv-944.
As a result, some of the
factual allegations detailed in Mr. Martin’s complaint relate to
circumstances involving Mr. Robison.
The factual allegations of
the complaint, relating to Mr. Martin and the current defendants,
can be summarized as follows.
Mr. Martin worked in the Ohio Penal Industries paint shop.
Mr. Posey filled in for Mr. Blakeman, Mr. Martin’s supervisor
during a three-week period in late September to mid-October,
At some point during this time, Mr. Posey asked Mr. Martin
if he knew how to open the lock on Mr. Blakeman’s personal
Mr. Martin did not know of any way short of breaking the
lock, so he informed Mr. Posey that he did not.
October 15, 2014, Mr. Martin “began to feel so uncomfortable”
with Mr. Posey’s request that he told Randy Dunham, a supervisor
in the YUSA building.
On October 20, 2014, Mr. Blakeman returned from his
vacation, discovered that his lock was missing, and filed an
The following day, Mr. Blakeman questioned Mr.
Martin and other inmate workers about the missing lock to see if
they knew anything about it.
Mr. Martin told Mr. Blakeman what
Mr. Posey had asked him to do.
Based on information from both Mr. Martin and Mr. Robison,
Mr. Blakeman filled out a second incident report on October 23,
On that same date, Mr. Martin was handcuffed, called to
the Captain’s office, and placed in isolation for eight days
On November 3, 2014, Mr. Martin received a
conduct report for lying to staff.
In the report, Mr. Martin was
accused of making false statements to corroborate Mr. Robison’s
This conduct report was false because when Mr. Martin
spoke to Mr. Blakeman, he was unaware that Mr. Robison also had
spoken with Mr. Blakeman and because Mr. Martin had told the same
story days earlier to Mr. Dunham.
The information in the conduct
report was, according to Mr. Martin, designed to “cover up for
Defendant Posey’s criminal activities.”
Later that same day, Mr.
Martin was fired from and “re-classed out of” his job at OPI.
The following day, Mr. Martin was called to Sergeant
Parnell’s Office for disposition of the conduct report.
Parnell told Mr. Martin that “‘personally I think your (sic)
getting screwed, but I have to find you guilty because they want
you out of OPI and never allowed through the OPI gate again.’”
Sergeant Parnell did not turn the conduct report over to the
Rules Infraction Board and had formed his opinion that Mr. Martin
was getting “‘screwed’” based on Mr. Coey’s direction regarding
what should happen to Mr. Martin.
Mr. Martin also claims that Mr. Posey worked in concert with
the OPI Industry Manager Mr. Coey and the OPI Superintendent Mr.
Cruse to retaliate against Mr. Martin by writing a false conduct
Mr. Coey retaliated against Mr. Martin for telling the
truth and giving a statement to Mr. Blakeman.
Mr. Coey “covered
up” for Mr. Posey’s criminal activity by writing the false
conduct report against Mr. Martin.
Mr. Coey originally had asked
Mr. Blakeman to “‘make something up’” and write the conduct
report because Mr. Coey wanted Mr. Martin to lose his job.
Coey also requested that Mr. Cruse write the false report but had
to write it himself when Mr. Cruse declined.
Although Mr. Cruse did not write the false conduct report,
he knew that doing so was wrong.
In fact, he was willing to
write the report until he realized he would have to do so by hand
and could not simply submit it anonymously on the computer.
Cruse allegedly knew Mr. Martin was innocent but participated in
the cover up to protect Mr. Posey from being held accountable for
a criminal offense.
Mr. Cruse knew that the investigation
undertaken by his office did not conform with the policies of the
ODRC and did not alert the CCI administrative offices about the
Mr. Martin’s Discovery-Related Motions
The general principles involving the proper scope of
discovery are well known.
The Federal Rules of Civil
Procedure authorize extremely broad discovery.
United States v.
Leggett & Platt, Inc., 542 F.2d 655, 657 (6th Cir. 1976), cert.
denied 430 U.S. 945 (1977); see also Lewis v. ACB Business
Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998)(“The scope of
discovery under the Federal Rules of Civil Procedure is
traditionally quite broad”).
Therefore, Fed.R.Civ.P. 26 is to be
construed liberally in favor of allowing discovery.
Midwestern Indemnity, 88 F.R.D. 191, 195 (S.D. Ohio 1980).
However, recent amendments to Fed. R. Civ. P. 26(b)(1) highlight
certain proportionality factors which the parties are to consider
in making discovery requests, responses, or raising objections.
See Advisory Committee Notes to December 1, 2015 amendments
(“[t]his change reinforces the Rule 26(g) obligation of the
Thus, under current Fed.R.Civ.P. 26(b)(1), the
parties may obtain discovery regarding any non-privileged matter
which is relevant to any claim or defense and proportional to the
needs of the case.
The proportionality analysis requires consideration of a
number of factors, including the importance of the issues at
stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources,
and the importance of the discovery in resolving the issues.
Consideration must also be given to whether the burden or expense
of the proposed discovery outweighs its likely benefit.
Civ. P. 26(b)(1)’s inclusion of the proportionality factors
enforces the collective obligation to consider proportionality in
discovery disputes; it does not, however, permit a party to
refuse discovery simply by making a boilerplate objection that
the information requested is not proportional.
Committee Notes to December 1, 2015 amendments.
party seeking discovery does not bear the burden of addressing
all of the proportionality factors.
Also, despite other changes to Rule 26, it is still the case
that information need not be admissible in evidence in order to
Fed. R. Civ. P. 26(b)(1); see also Mellon v.
Cooper-Jarrett, Inc., 424 F.2d 499, 500-501 (6th Cir. 1970)
(noting that “[t]he scope of examination permitted under Rule
26(b) is broader than that permitted at trial”).
The Court has the duty to deny discovery directed to matters
not legitimately within the scope of Rule 26, and to use its
broad discretionary power to protect a party from harassment or
oppression which may result even from a facially appropriate
See Herbert v. Lando, 44l U.S. 153 (1979);
see also Lavado v. Keohane, 992 F.2d 601 (6th Cir. 1993)(“[I]t is
well established that the scope of discovery is within the sound
discretion of the trial court”)(quoting Chrysler Corp. v. Fedders
Corp., 643 F.2d 1229, 1240 (6th Cir.), cert. denied 454 U.S. 893
Further, the Court has discretion to limit or even
preclude discovery which meets the general standard of relevance
found in Rule 26(b)(1) if the discovery is unreasonably
cumulative or duplicative, can be obtained from some other source
which is more convenient, less burdensome, or less expensive, or
if the party seeking the information has had ample opportunity to
obtain it in the action.
See Fed. R. Civ. P. 26(b)(2).
with these general principles in mind that the present discovery
motion will be resolved.
The Motions for Leave to “File” Additional Discovery Requests
(Docs. 42, 43, and 44)
As noted above, Mr. Martin has filed two identical motions
seeking leave to serve an additional forty requests for admission
on each defendant.
The gist of these motions is that Mr. Martin
has attempted to obtain the consent of defense counsel to serve
these additional requests but the consent was denied.
notes that these additional requests are necessary because many
of the defendants’ previous answers “have been in direct conflict
with each other.”
Mr. Martin has not attached copies of the
proposed additional requests.
For similar reasons, through his
other motion for leave, Mr. Martin seeks to serve an additional
25 interrogatories on each defendant.
He also has not submitted
copies of the proposed interrogatories for the Court’s review.
In response, defendants filed an “omnibus” response to Mr.
Martin’s several pending discovery motions.
As it relates to
these particular motions, defendants contend that Mr. Martin has
not properly conferred with them and that he has failed to set
forth good cause.
Defendants also note that, with respect to his
request for leave to serve additional requests for admission, the
Court has previously denied a similar motion filed by Mr. Martin.
They also point out that Mr. Martin does not provide any examples
of alleged “conflicting statements.”
In reply, Mr. Martin
contends that he is not required to demonstrate good cause for
either of his requests.
Initially, with respect to the motions relating to requests
for admissions, defendants are correct in pointing out that the
Court previously denied a similar motion.
See Order (Doc. 35).
In denying the earlier motion, the Court stated, in part:
Requests for Admission are governed by
Fed.R.Civ.P. 36. This rule provides in part that, “[a]
party may srve on any other party a written request to
admit ... the truth of any matters within the scope of
Rule 26(b)(1) relating to: (A) facts, the application
of law to fact, or opinions about either [.]”
Fed.R.Civ.P. 36(a)(1). Piskura v. Taser Int’l, 2011 WL
6130814, *1, report and recommendation adopted, 2011 WL
6122756 (S.D. Ohio Dec. 8, 2011). The purpose of this
rule is to narrow the issue of proof in trial
litigation and reduce the time and costs of courtroom
litigation. Id. It is not a traditional discovery
Fed.R.Civ.P. 26(b)(2)(A) provides that, “by order
of local rule, the court may  limit the number of
requests under Rule 36. Local Civil Rule 36.1 states,
“[u]nless there has been agreement of the responding
party or leave of Court has first been obtained, no
party shall serve more than forty requests for
admission (including subparts) upon another party.”
“‘Good cause’ means ‘reason to believe that the
petitioner may, if the facts are fully developed, be
able to demonstrate that he is ... entitled to
relief.’” Brown v. Morrow, 2011 WL 2471554, *2 (M.D.
Tenn. June 21, 2011), quoting Williams v. Bagley, 380
F.3d 932, 974 (6th Cir. 2004). In a similar context,
the court in Shaw Grp., Inc. v. Zurich Am. Ins. Co.,
2014 WL 1816494, *8 (M.D. La. May 7, 2014), found that,
“[f]requently, the issue becomes whether the requesting
party has adequately shown that the benefits of
additional interrogatories outweigh the burden to the
opposing party.” To show good cause for expanding the
limits on discovery requests, the Court looks to
whether the benefits of the expansion outweighs the
burden of the extra discovery.
While pro se pleadings are construed more
liberally, “the fact that Plaintiff proceeds pro se
does not entitle him to ignore the procedural rules for
conducting discovery.” Thatcher v. Warden, Lebanon
Corr. Inst., 2012 WL 5496503, *3 (S.D. Ohio Nov.13,
2012). Therefore, absent and agreement with the
Defendants, Mr. Martin must demonstrate good cause for
the Court to grant this request.
Here, Mr. Martin has already served forty requests
for admission. He has neither provided a copy of the
additional requests he wishes to serve for the Court’s
review nor otherwise demonstrated how these additional
requests are pertinent to his claim. ... The Court
understands that prisoners who represent themselves and
have very limited resources to conduct discovery may,
at times, require more written discovery requests both interrogatories and other types of written
requests - than other litigants. Requests for
admission, while they can assist a party in conducting
discovery, are typically not as efficient a means for
doing so as are interrogatories and document requests.
Here, Mr. Martin has not shown why he needs more
requests for admission or how any additional requests
will help him obtain the information he needs to
prosecute his claims.
This remains the situation.
To the extent that Mr. Martin
suggests that he needs to serve such additional requests because
of the defendants’ inconsistent answers, as explained below,
serving additional requests for admission will not solve this
This same reasoning applies to Mr. Martin’s motion for
leave to serve additional interrogatories.
Consequently, all of
these motions will be denied.
Motions to Compel (Docs. 45, 46, 47, and 51)
Mr. Martin also has filed four motions to compel.
these motions relate to requests for production of documents
directed to Mr. Posey (Docs. 45 and 51).
The other two motions
relate to the second set of interrogatories directed to Mr. Posey
(Doc. 46) and to Mr. Coey and Mr. Cruse (Doc. 47).
responded to these four motions as part of their omnibus
Briefly, defendants contend that all four of Mr.
Martin’s motions to compel should be denied because:
(1) he has
not certified the extrajudicial efforts undertaken to resolve any
discovery disputes; and (2) the motions have been rendered moot
because they have responded.
In reply, Mr. Martin devotes a fair amount of discussion to
the issues of his extrajudicial efforts and certification.
Although he concedes that he inadvertently failed to attach a
certification to his motions, the Court is satisfied from both
Mr. Martin’s initial filings and the discussion in his reply that
he has undertaken extrajudicial efforts to resolve his discovery
Consequently, the Court will not deny the motions to
compel on this ground.
Mr. Martin’s reply also clarifies the discovery requests at
The requests still at issue appear to relate only to two
of the motions to compel (Docs. 46 and 47) and include:
Interrogatory Nos. 4 and 5 directed to Mr. Coey (Doc. 47);
Interrogatory Nos. 6 and 11 directed to Mr. Cruse (Doc. 47);
Interrogatory Nos. 3, 4, 7, 9 and 12 directed to Mr. Posey (Doc.
With respect to Mr. Martin’s motions to compel relating to
requests for production of documents (Docs. 45 and 51) the status
of these motions appears to be as follows.
In the first motion,
Doc. 45, Mr. Martin stated that “[a]s of the filing of the
present motion counsel has failed to produce the requested
In his reply, Mr. Martin states that, “although the
defendant’s have responded, the motion to compel is still
appropriate given that the defendant’s failed to produce many of
Mr. Martin, however, does not explain
which specific requests encompassed by his first motion to compel
still remain at issue.
With respect to his second motion to compel relating to the
second request for production of documents, (Doc. 51), this
motion involves Mr. Martin’s request for copies of his
“medical/mental health records.”
Although, as the parties’
filings indicate, defendants originally objected to the request
on grounds of relevance, defense counsel subsequently arranged
for Mr. Martin to review these records, select the records he
wanted to have copied, and have the copies sent to defense
The gist of Mr. Martin’s supplemental filing is that,
although he did review his records and have copies sent to
defense counsel, defense counsel has yet to provide him with the
In light of all of the above, the Court will deny as moot
the first motion to compel relating to the requests for
production of documents (Doc.45).
With respect to the second
motion to compel relating to a request for production of
documents (Doc. 51) the Court will grant defendants’ motion to
file a sur-reply (Doc. 59) for the limited purpose of addressing
Consequently, the Court will limit the focus of
this order to only the motions to compel relating to
interrogatories directed to the defendants (Docs. 46 and 47).
The Court has reviewed Mr. Martin’s recitations in his reply
of the interrogatories and responses still at issue in his
motions to compel.
In doing so, the Court notes that Mr. Martin
has not attached copies of all of the interrogatories and
responses addressed in his motions.
In his reply, he attached
copies only of the following, evidencing the interrogatory and
the particular defendant’s responses provided over objection:
Interrogatories Directed to Mr. Coey
(Motion to Compel Doc. 47):
Interrogatory No. 4: In the conduct report written
against the plaintiff you stated “each inmate did not
give a specific time or date but stated a week time
frame instead.” Question: Identify the ‘week time
frame you are referring to.
I do not recall.
Interrogatory No. 5: In the conduct report that you
wrote against plaintiff you stated ‘through interviews
it was discovered that the lock in question was noticed
by staff to be missing from the locker Monday morning
of the week that inmate Martin was stating that the
incident took place.’ Question: Identify what evidence
you relied upon to determine that the plaintiff
fabricated a story about a missing lock when in fact
you stated in the conduct report that the lock was in
In that report I did not indicate that a
lock was missing, the report indicated that Plaintiff
fabricated a story about how the lock went missing.
Interrogatories Directed to Mr. Cruse
(Motion to Compel Doc. 47):
Interrogatory No. 6: In Interrogatory #11 to Defendant
Posey’s First set of Interrogatories Defendant Posey
stated ‘I do not know how the lock went missing. I do
not who broke the lock. I do not know when the lock
went missing.’ Question: Do you have any knowledge of
who broke the lock, how the lock went missing, and when
th lock went missing.
Response: I do not have an answer to any of those
Interrogatories Directed to Mr. Posey
(Motion to Compel Doc. 46):
Interrogatory No. 9: Did you at any time ever discuss
the broken lock with defendant Cruse?
Response: I do not recall.
Interrogatory No. 12: Other than defendant Coey, who
has spoken directly with you (per investigation or
otherwise) regarding the broken lock?
Response: Assistant Attorney General Mindy Worly,
Defendant Coey, and my attorney Assistant Attorney
General Alexander Kennedy in the context of these
questions. I do not recall specifically speaking with
any other individual.
Because Mr. Martin has not submitted copies of the remaining
discovery responses that he has identified as at issue, the Court
will consider only the above responses in ruling on Mr. Martin’s
In doing so, the Court will deny the motions to compel
without prejudice as they relate to these other responses.
Peterson v. Kramer, 2015 WL 1954615, *3 (S.D. Ohio Apr. 29, 2015)
(denying defendants’ motion to compel without prejudice because
it did not include copies of plaintiffs’ discovery responses).
With respect to Mr. Coey’s responses, Mr. Martin contends
that these interrogatory responses conflict with certain
responses Mr. Coey has provided to other discovery requests.
With respect to Mr. Cruse’s response, Mr. Martin contends that it
is both evasive and perhaps inconsistent with other responses he
provided to other discovery requests.
As a result, Mr. Martin
asserts that this response is further evidence of Mr. Cruse’s
conspiracy to shield Mr. Posey from liability.
With respect to
Mr. Posey’s responses, Mr. Martin argues that Mr. Posey also is
being evasive and that his second answer is inconsistent with Mr.
Cruse’s discovery responses.
Initially, the Court does not view any of the defendants’
responses as evasive, including responses indicating a lack of
Further, Mr. Martin appears to be challenging, in
some detail, the truthfulness of all of these interrogatory
“‘The purpose of a motion to compel discovery is not
to challenge the truthfulness of the response but rather to
compel a party to answer the interrogatory.’”
Annabel v. Heyns,
2014 WL 1207802, *1 (E.D. Mich. March 24, 2014), quoting Stewart
v. Capital Newspapers, Inc. 2010 WL 1508289 (W.D. Wis. Apr. 14,
That is, a motion to compel is not the correct way for
Mr. Martin to argue about the factual accuracy of the defendants’
See Grant v. Target Corp., 2013 WL 571845 (S.D. Ohio
Feb. 13, 2013).
Because that appears to be the sole purpose of
motions to compel, they will be denied.
the Court notes that, if the remaining responses Mr. Martin has
identified as at issue are as represented by Mr. Martin
(Interrogatory No. 11 directed to Mr. Cruse and Interrogatory
Nos. 3, 4, and 7 directed to Mr. Posey), the Court would reach a
similar conclusion with respect to them.
Mr. Martin’s Remaining Motions
Motion for Alternate Service (Doc. 49)
Through this motion, Mr. Martin requests the Court to direct
the United States Marshal Service to serve three subpoenas on
The subpoenas, directed to Tim Blakeman,
Randy Dunham, and Mac Wolfenberger, request that these
individuals provide “affidavit testimony,” directed to specific
issues, at a date and time of their choosing and before any
person authorized to administer oaths.
Mr. Martin asserts that,
because he was granted leave to proceed in forma pauperis, his
request is proper under 28 U.S.C. §1915(d).
In their response, defendants assert that Mr. Martin’s
subpoenas are defective in that they request affidavit testimony
and that such a request is outside the scope of Fed.R.Civ.P. 45.
Rather, defendants explain, Mr. Martin’s option for obtaining
testimony from these individuals is to seek to depose them by
written questions pursuant to Fed.R.Civ.P. 31.
they note that Mr. Martin has not tendered any witness fees,
court reporter fees, or fees for the issuance of subpoenas.
In his reply, Mr. Martin contends that defendants do not
have standing to challenge the subpoenas directed to non–party
Further, he cites to Lyons v. Leach, 2014 WL 823411
(E.D. Mich. March 3, 2014), to support his position that a
subpoena can be used to compel production of a witness’
affidavit, as long as the affidavit was created prior to the time
the subpoena was served.
Finally, he states that he has not
submitted appropriate fees because the Clerk’s office did not
provide him information regarding the appropriate amounts.
Mr. Martin is correct that, because he is proceeding in
forma pauperis, the United States Marshal Service, pursuant to 28
U.S.C. 1915(d), is required to serve his subpoenas.
is also correct that, “[o]rdinarily, a party has no standing to
seek to quash a subpoena issued to someone who is not a party to
the action unless the party claims some personal right or
privilege with regard to the documents sought.”
Schneider, Bayless & Chesley Co. L.P.A. v. Davis, 2013 WL 146362
(S.D. Ohio Jan. 14, 2013), *5 (citations omitted).
however, may exercise its discretion to screen  a subpoena
request, relieving the Marshals Service of its duty when
Brown v. Ross County, 2014 WL 4284874, *2 (S.D.
Ohio Aug. 28, 2014)(citations omitted).
The plain language of Mr. Martin’s subpoenas requests that
these witnesses create an affidavit in response to the subpoena.
As defendants note, this is not contemplated by Rule 45.
reply, Mr. Martin suggests, relying on Lyons, that because “these
affidavits were created numerous weeks ago when [the witnesses]
informed the plaintiff that they would supply him with their
affidavits after receiving their subpoenas,” they are subject to
This does appear to be the rationale applied in Lyons.
In that case, defendants, in asserting that a subpoena
issued by a pro se prisoner plaintiff should be quashed, argued
that the subpoena required that the witness create an affidavit
in response to the subpoena.
In denying the motion to quash, the
Court found persuasive the plaintiff’s assertion that the witness
had created the affidavit before the subpoena was served.
That is not exactly the situation here.
Although Mr. Martin
argues that the affidavits he requests have already been created,
there is no factual support for this assertion, and the subpoenas
have not been served.
Consequently, this Court is not being
asked to address an after-the-fact scenario like that presented
to the Lyons court.
Rather, in this case, the Court may deny Mr.
Martin’s request to have the Marshal serve the subpoenas as they
are currently drafted and to direct him to prepare subpoenas that
comply with Rule 45 if he wishes to have the Marshal serve them.
The Court chooses to do so here.
For this reason, the motion for
alternate service will be denied.
Motion for Extension of Time (Doc. 50)
Mr. Martin has moved for an extension of time to complete
At the time Mr. Martin filed his motion, the
discovery deadline was December 31, 2016.
Defendants have not
opposed this request and have requested their own extension of
the deadline until January 31, 2017.
In light of the rulings
contained in this order, the Court agrees that an extension of
the discovery deadline is appropriate.
discovery deadline will be extended until February 28, 2017.
Motion to Appoint Counsel (Doc. 54)
Because this action has not yet progressed to the point that
the Court is able to evaluate the merits of plaintiff's claim,
the motion for appointment of counsel is denied.
See Mars v.
Hanberry, 752 F.2d 254 (6th Cir. l985).
Motion Regarding Voice Stress Analyzer (Doc. 57)
Through this motion, Mr. Martin requests that Mr. Posey
“undergo a Computerized Voice Stress Analyzer to determine the
‘truth’ or ‘untruthfulness’ of the claims before the Court ....”
As he explains, this is a form of lie detection.
He cites to
precedent from the Ohio Supreme Court establishing the
requirements for admission of polygraph tests.
stipulates that, among other things, if Mr. Posey agrees to
undergo such a test, he will undergo one as well.
In their response, defendants contend that courts have found
such tests unreliable and the results generally inadmissible at
Further, they contend that they are specifically
inadmissible for purposes of establishing the truth or falsity of
Consequently, they request that the motion be
Initially, the Court notes that it is not clear from Mr.
Martin’s filing whether it is intended as a request directed to
Mr. Posey or whether Mr. Martin seeks an order from the Court
compelling Mr. Posey to submit to such an examination.
Martin’s reply clarifies that this filing was intended as a
Absent circumstances not present here,
discovery requests are not to be filed with the Court.
R. Civ. P. 5(d).
Consequently, the filing will be ordered
However, Mr. Martin is cautioned that, “‘[t]he Federal Rules
of Civil Procedure do not provide for discovery in the form of
compelling polygraph examinations of parties or other
Johnson v. Ohio Dept. of Rehabilitation and
Corrections, 2014 WL 5782939, *2 (S.D. Ohio Nov. 6, 2014),
quoting Sango v. Johnson, 2014 WL 4658320, *2 (E.D. Mich. May 22,
“Although the Federal Rules of Civil Procedure establish
tools for obtaining discovery through a party’s sworn testimony,
..., compulsory polygraph tests are not among those tools.”
Motion for a Temporary Stay (Doc. 63)
Mr. Martin filed this motion in response to defendants’
motion for leave to depose him, which is addressed below.
support of his motion, Mr. Martin requests that his deposition be
delayed until a ruling on his various motions.
Martin’s motions are addressed by this order, the motion for a
temporary stay will be denied as moot.
Motion for Leave to File a Sur-Reply (Doc. 70)
Mr. Martin has filed a motion for leave to file a sur-reply
in opposition to defendants’ motion for an extension of the
Because this order grants an extension of
the discovery deadline, this motion will be denied as moot.
Motion for Emergency Relief (Doc. 71)
Mr. Martin’s final motion apparently was prompted by defense
counsel’s alleged communications with individuals Mr. Martin
contends are “Plaintiff’s witnesses.”
Mr. Martin asserts that
such ex parte communications are morally wrong and equate to
obstruction of justice and witness tampering.
He seeks an order
directing that defense counsel “cease and desist with any
communication with plaintiff’s witnesses and enter an order that
no evidence derived from this illegal communication be entered
into the record ....”
It is generally understood that “‘[w]itness interviews,
conducted in private, are routine components of nearly every
attorney’s case preparation.’”
Thomas v. 1156729 Ontario Inc.,
979 F.Supp.2d 780, 786 (E.D. Mich. 2013), quoting In re Am. Med.
Sys., Inc. Pelvic Repair Sys. Prod. Liab. Litig., 946 F.Supp.2d
512, 514 (S.D. W.Va. 2013).
“‘Unless impeded by privilege, an
adversary may inquire, in advance of trial, by any lawful manner
to learn what any witness knows.’” Id., quoting Doe v. Eli Lilly
& Co., Inc., 99 F.R.D. 126, 128 (D.D.C. 1983).
way, “[a]s a general rule, in the absence of a specific
prohibition, potential witnesses are fair game for informal
discovery by either side of a pending action.”
In re Am. Med.,
at 514, citing International Bus. Mach. Corp. v. Edelstein, 526
F.2d 37, 42 (2d Cir. 1975).
That is, “‘no party to litigation
has anything resembling a proprietary right to any witness’s
In re Zimmer NexGen Knee Implant Products Liability
Litigation, 890 F.Supp.2d 896, 907 (N.D. Ill. 2012), quoting Eli
Rather “[w]hile the Federal Rules of Civil Procedure have
provided certain specific formal methods of acquiring evidence
from recalcitrant sources by compulsion, they have never been
thought to preclude the use of such venerable, if informal,
discovery techniques as the ex parte interview of a witness
willing to speak.”
While that is the general rule, the Court recognizes that,
under Rule 26, it has the discretion, in certain circumstances,
to issue a protective order on behalf of any person from whom
discovery is sought.
No such circumstances have been presented
Consequently, Mr. Martin’s motion for emergency relief
will be denied.
Defendants’ Remaining Motion
Motion to Depose Mr. Martin (Doc. 53)
Defendants have moved for leave to depose Mr. Martin
pursuant to Fed.R.Civ.P. 30(a)(2)(B).
The motion sets forth good
cause and the motion will be granted.
For the reasons stated above, the following motions are
the motions for leave (Docs. 42, 43, and 44); the
motions to compel (Docs. 46 and 47); the motion for alternate
service (Doc. 49); and the motion for appointment of counsel
The motion to depose plaintiff (Doc. 53) is granted.
The motion for Mr. Posey to undergo a voice stress analysis (Doc.
57) is ordered stricken.
The motion to compel (Doc. 45); the
motion for a temporary stay (Doc. 63); and the motion to file a
sur-reply (Doc. 70) are denied as moot.
relief (Doc. 71) is denied.
The motion for emergency
The motions for an extension of the
discovery deadline (Docs. 50 and 61) are granted.
shall be completed by February 28, 2017.
Motions for summary
judgment shall be filed by March 31, 2017.
The motion for leave
to file a sur-reply (Doc. 59) is granted for the limited purpose
of addressing the issues raised by the motion to compel
medical/mental health records (Doc. 51).
The motion to compel
(Doc. 51) remains pending.
Motions for Reconsideration
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. 14-01,
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
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 even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.
S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge
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