Dale v. Dejong et al

Filing 59

ORDER denying as moot in part and denying in part 48 Motion to Compel. Signed by US Magistrate Judge Veronica L. Duffy on 3/28/2016. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES IRVING DALE,

4:14-CV-04102-LLP

Plaintiff,
ORDER ON MOTION TO COMPEL
DOCKET NO. 48

vs.
KELLY TJEERDSMA, MICHAEL
MEYER, REBECCA SCHIEFER,
GEORGE DEGLMAN, UNKNOWN
DEPARTMENT OF CORRECTIONS
MEDICAL STAFF, UNKNOWN
DEPARTMENT OF CORRECTIONS
STAFF, ROBERT DOOLEY, TAMMY
DEJONG, CORY TYLER, ANDRA
GATES, MICHAEL JOE HANVEY, MIKE
DOYLE,
Defendants.

Pending is Plaintiff James Irving Dale’s Motion to Compel Discovery,
Docket No. 48. Mr. Dale seeks (1) copies of his medical records, and (2) copies
of any emails or directives from the prison staff regarding the matter of Dale v.
Dooley, CIV. 14-4003, or any other legal matter regarding Mr. Dale.
Defendants have filed a response and Mr. Dale has filed his reply brief so the
matter is ready for a ruling.
A. Medical Records.
In their response to the motion, defendants represent Mr. Dale has been
provided copies of the requested medical records. Mr. Dale did not dispute this
in his reply. This portion of the motion will be denied as moot.

B. Copies of emails or written directives.
Plaintiff seeks “any and all documents, Electronic (E-Mails) Mails, or
directives from any South Dakota D.O.C. staff, or MDSP staff, to any named or
unnamed Defendants regarding the matter of James Irving Dale v. Robert
Dooley, et al., U.S.D.C. File: 14-CV-4003-LLP, or any other legal matter
regarding James Irving Dale.” See Docket 50-1, p. 2. Defendants responded to
Mr. Dale’s discovery request by stating “no such documents exist from South
Dakota D.O.C. or MDSP staff, regarding the instant litigation, or any other legal
matter regarding Plaintiff James Dale.” See Docket Nos. 50-2, p. 5 and 53-1,
p. 2. In his reply brief, Mr. Dale contends there are documents responsive to
the request and urges the court to order the defendants to produce the
documents or, in the alternative, hold a hearing to have defendants or D.O.C.
staff testing under oath that no documents exist.
Counsel for defendants has filed an affidavit indicating that he made due
inquiry of his clients to determine if any emails responsive to Mr. Dale’s
discovery request exist. Counsel swears, under oath, that his duly diligent
inquiry yielded no responsive documents. See Docket No. 53-1. Mr. Dale’s
contrary position is based on guess and conjecture. Defendants have satisfied
their duty to respond to Mr. Dale’s request for documents under FED. R. CIV. P.
34. The court cannot order defendants to produce documents that do not
exist. Should such documents come to light subsequent to this order, Mr. Dale
would be allowed to seek sanctions against defendants. See FED. R. CIV. P. 37.

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Accordingly, it is ORDERED Plaintiff James Irving Dale’s Motion to
Compel, Docket 48, is DENIED AS MOOT in part and DENIED in part.
DATED this 28th day of March, 2016.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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