Curran v. Bernhardt

Filing 47

ORDER denying 32 Motion for Attorney Fees; granting in part and denying in part 32 Motion to Compel. Signed by US Magistrate Judge Veronica L. Duffy on 1/10/2022. (PM)

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
MICHAEL J. CURRAN,

5:20-CV-05009-JLV

Plaintiff,
vs.
DAVID L. BERNHARDT,
SECRETARY, U.S. DEPARTMENT
OF THE INTERIOR;

MEMORANDUM OPINION AND
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION TO COMPEL
[DOCKET NO. 32]

Defendant.
INTRODUCTION
This matter is before the court on Plaintiff Michael Curran’s complaint
alleging violations of Title VII of the Civil Rights Act of 1964 for discrimination
and a hostile work environment based on his race (Caucasian), sex (male), and
national origin (American). See Docket No. 1. Jurisdiction is premised on the
diverse citizenship of the parties and an amount in controversy in excess of
$75,000. See 28 U.S.C. § 1332. This court also has federal-question
jurisdiction over the controversy. See 28 U.S.C. § 1331. Now pending is
plaintiff’s motion to compel defendants to provide discovery responses and
motion for attorney’s fees. See Docket No. 32. Defendant, David Bernhardt,
Secretary of the United States Department of the Interior, opposes this motion.
See Docket No. 38. This matter was referred to this magistrate judge for a
recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the October

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16, 2014, standing order of the Honorable Jeffrey L. Viken, United States
District Judge. See Docket No. 44.
FACTS
Mr. Curran filed this lawsuit in federal court on September 11, 2019,
alleging violations of Title VII of the Civil Rights Act of 1964 for discrimination
and a hostile work environment based on his race (Caucasian), sex (male), and
national origin (American). See Docket No. 1. Mr. Curran alleges that
Defendant, David Bernhardt, Secretary of the United States Department of the
Interior, discriminated against him and subjected him to a hosile work
environment during the course of his employment with the Department of the
Interior, Office of Appraisal Services (“the Agency”). Id. at 1-2.
A.

Underlying Complaint
On November 17, 2014, Mr. Curran was hired by the Agency as a

Regional Supervisory Appraiser (“RSA”), GS-1171-14, for the Great Plains
Region of the Office of the Special Trustee for American Indians, Office of
Appraisal Services, in Rapid City, South Dakota. Docket No. 1, p. 3. The
following year, Mr. Curran was demoted to Review Appraiser, GS-1171-13, and
reassigned from the Great Plains Region in Rapid City, South Dakota, to the
Western Region in Phoenix, Arizona. Id. at 3-4.
Mr. Curran’s first-level supervisor was Deborah Lewis, Acting Deputy
Director, Office of Appraisal Services, whom Mr. Curran claims is a Native
American woman. Id. at 4. Mr. Curran’s second-level supervisor was Eldred

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Lesansee, Director, Office of Appraisal Services, whom Mr. Curran claims is a
Native American male. Id.
Mr. Curran alleges that, from March 2015 through October 2015,
Ms. Lewis treated him differently than the other similarly situated RSAs at the
Agency by frequently saying negative things about him to other staff and by
displaying contentious and unprofessional behavior towards him. Id. at 4-5.
These actions, Mr. Curran alleges, undermined and usurped his leadership,
thereby causing a hostile work environment. Id. at 5.
B.

Discovery Dispute
On October 19, 2020, Mr. Curran served his first set of written

interrogatories and request for production of documents upon defendant
pursuant to Federal Rules of Civil Procedure 33 and 34. See Docket No. 34-2.
On November 17, 2020, defendant notified Mr. Curran’s primary counsel that
they required additional time to respond to the discovery requests given
complications posed by the present pandemic, namely that many witnesses
could not easily access relevant information while teleworking. The parties
agreed to a 21-day extension. See Docket No. 39-1.
On December 8, 2020, defendant requested an additional extension of
time to respond to discovery requests, again citing difficulty acquiring
information from witnesses who were teleworking, as well as witnesses who
had since retired or otherwise left the Agency. See Docket No. 39-2. In the
same correspondence, defendants indicated they had recently learned that
Mr. Curran’s primary counsel may have already received over 3,500 documents
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through discovery at the administrative level that he had not previously
disclosed. Id. On December 9, 2020, Mr. Curran’s primary counsel agreed to a
two-week extension and verified that he did, in fact, have documents in his
possession that he had failed to disclose due to an oversight. Id. Defendant
argues that many of these undisclosed documents are responsive to
Mr. Curran’s discovery requests. Docket No. 38, p. 2.
Defendant provided its initial objections and responses to Mr. Curran’s
discovery requests on December 23, 2020. See Docket No. 34-3. Defendant
supplemented these disclosures on December 30, 2020, January 11, 2021, and
March 1, 2021. See Docket Nos. 34-4, 34-5 & 34-6. The discovery period was
extended on March 5, 2021, over Mr. Curran’s objections, to March 15, 2021,
to give defendant additional time to further supplement its initial responses.
See Docket No. 31. After the discovery period extensions, defendant
supplemented its responses for a fourth time on March 8, 2021, a fifth time on
March 26, 2021, and a sixth time on April 5, 2021. See Docket Nos. 34-7, 34-8
& 34-9. In all, the defendant asserts it has disclosed approximately 9,768
pages of discovery in response to Mr. Curran’s discovery requests. Docket
No. 38, p. 2.
However, on March 12, 2021, Mr. Curran sent a notice to defendant
identifying its allegedly deficient discovery responses. See Docket No. 34-1. In
response, defendant sought a “meet-and-confer” teleconference with
Mr. Curran’s attorneys, which was scheduled for March 25, 2021. Docket
No. 39-7. During the short, sixteen-minute conference, the parties did not
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discuss the specific contents of the deficiency notice and, instead, focused on
the timeliness of the deficiency notice and whether defendant was obligated to
respond. Docket No. 33, p. 2; Docket No. 38, p. 3. This meet-and-confer
teleconference proved unsuccessful.
On April 7, 2021, Mr. Curran filed the present motion to compel. See
Docket No. 32. On April 9, 2021, Mr. Curran’s local counsel offered to further
discuss the issues raised in the motion to compel, and conduct a second meetand-confer. See Docket No. 39-9. Defendant did not oppose this offer. Id.
Accordingly, the parties held a second meet-and-confer conference by
telephone on April 27, 2021. See Docket Nos. 39-10, 39-11 & 39-12.
During this conference, defendant asserts they provided an explanation
for various objections, described the ongoing efforts to respond to particular
requests, requested that Mr. Curran’s primary counsel explain the relevance of
particular requests, and asked that some requests be narrowed. Docket
No. 38, p. 4. Defendant also asserts that Mr. Curran’s primary counsel agreed
to narrow interrogatory no. 8 to the Great Plains Region, to exclude information
related to federal employee benefits, to narrow requests for production nos.
15-17 to exclude medical information, and requested that responses
referencing materials already in Mr. Curran’s possession be re-phrased to
include a reference to broad categories of materials. Id.
Also during this second meet-and-confer, the parties agreed that
defendant would produce a privilege log related to the defendant’s litigation
hold policy, which would include a list of individuals who received a litigation
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hold in the course of the present litigation. Id. at 5. Later on, a protective
order was filed on May 21, 2021. See Docket No. 43. The motion is now fully
briefed and ripe for decision.
DISCUSSION
A.

Standards Governing Discovery
Federal Rule of Civil Procedure 26(b)(1) sets forth the scope of discovery

in civil cases pending in federal court:
Scope in General. Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the
issues at stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Information within the scope of discovery need not be admissible in
evidence to be discoverable.
See FED. R. CIV. P. 26(b)(1).
If a party fails to respond to a proper request for discovery, or if an
evasive or incomplete response is made, the party requesting the discovery is
entitled to move for a motion compelling disclosure after having made a goodfaith effort to resolve the dispute by conferring first with the other party. See
FED. R. CIV. P. 37(a).
The scope of discovery under Rule 26(b) is extremely broad. See 8
Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 2007 (3d ed.
Oct. 2020 update). The reason for the broad scope of discovery is that
“[m]utual knowledge of all the relevant facts gathered by both parties is
essential to proper litigation. To that end, either party may compel the other to
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disgorge whatever facts he has in his possession.” Id. (quoting Hickman v.
Taylor, 329 U.S. 495, 507-08 (1947)). The Federal Rules distinguish between
discoverability and admissibility of evidence. FED. R. CIV. P. 26(b)(1), 32, and
33(a)(2) & (c). Therefore, the rules of evidence assume the task of keeping out
incompetent, unreliable, or prejudicial evidence at trial. But these
considerations are not inherent barriers to discovery.
“Relevancy is to be broadly construed for discovery issues and is not
limited to the precise issues set out in the pleadings. Relevancy . . .
encompass[es] ‘any matter that could bear on, or that reasonably could lead to
other matter that could bear on, any issue that is or may be in the case.’ ”
E.E.O.C. v. Woodmen of the World Life Ins. Soc’y, No. 8:03CV165, 2007 WL
1217919, at *1 (D. Neb. Mar. 15, 2007) (quoting Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978)). The party seeking discovery must make a
“threshold showing of relevance before production of information, which does
not reasonably bear on the issues in the case, is required.” Woodmen of the
World, 2007 WL 1217919, at *1 (citing Hofer v. Mack Trucks, Inc., 981 F.2d
377, 380 (8th Cir. 1993)). “Mere speculation that information might be useful
will not suffice; litigants seeking to compel discovery must describe[,] with a
reasonable degree of specificity, the information they hope to obtain and its
importance to their case.” Woodmen of the World, 2007 WL 1217919, at *1
(citing Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir. 1972)).
Discoverable information itself need not be admissible at trial; rather, the
defining question is whether it is within the scope of discovery. See FED. R. CIV.
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P. 26(b)(1). Additionally, the court may limit the frequency and extent of
discovery. See Fed R. Civ. P. 26(b)(2); see also Roberts v. Shawnee Mission
Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003) (“The rule vests the district court
with discretion to limit discovery if it determines, inter alia, the burden or
expense of the proposed discovery outweighs its likely benefit.”); Cont’l Ill. Nat’l
Bank & Trust Co. of Chi. v. Caton, 136 F.R.D. 682, 684-85 (D. Kan. 1991) (“All
discovery requests are a burden on the party who must respond thereto.
Unless the task of producing or answering is unusual, undue or extraordinary,
the general rule requires the entity answering or producing the documents to
bear that burden.”).
B.

Mr. Curran’s Motion to Compel Is Timely
Defendant argues that Mr. Curran’s motion to compel is untimely

because the motion was filed after the close of discovery and Mr. Curran failed
to “immediately” call to the court’s attention any discovery deficiencies once
defendant disclosed discovery responses. See Docket No. 38, pp. 7-8. This
argument is without merit.
Federal Rule of Civil Procedure 37 does not specify a time limit for filing a
motion to compel. See Days Inn Worldwide, Inc. v. Sonia Invs., 237 F.R.D.
395, 396 (N.D. Tex. 2006) (noting that Federal Rule of Civil Procedure 37
provides no deadline for the filing of motions to compel discovery).
Nonetheless, “[i]f the moving party has unduly delayed, the court may conclude
that the motion is untimely.” 8A Charles Alan Wright, Arthur R. Miller &
Richard L. Marcus, Fed. Prac. & Pro. § 2285 (2d ed. 1994).
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Generally, absent a specific directive in the scheduling order, motions to
compel discovery filed prior to the discovery deadline have been held timely.
Voter v. Avera Brookings Med. Clinic, No. Civ. 06-4129-KES, 2008 WL
4372707, at *1 (D.S.D. Sept. 2008). But, motions to compel filed after the
discovery deadline have routinely been found to be untimely. See Cont’l
Indus., Inc. v. Integrated Logistics Sols., 211 F.R.D. 442, 444 (N.D. Okla. 2002)
(determining that a motion to compel production of documents, which was filed
six months after the discovery deadline and only three weeks before trial, was
untimely, and resulted in a waiver of any discovery violations through
unreasonable delay). See also Packman v. Chi. Tribune Co., 267 F.3d 628, 647
(7th Cir. 2001) (finding the district court did not abuse its discretion in denying
a motion to compel discovery filed after discovery closed and defendants had
filed their summary judgment motion); Ginett v. Fed. Express Corp., No. 975481, 1998 WL 777998, at *5 (6th Cir. Oct. 21, 1998) (finding the district court
did not abuse its discretion when it denied a motion to compel filed two months
after the discovery deadline, because the plaintiff knew of the document at
issue long before the discovery deadline); and Suntrust Bank v. Blue Water
Fiber, L.P., 210 F.R.D. 196, 200-02 (E.D. Mich. 2002) (determining plaintiff’s
motion to compel should be denied because the motion was filed approximately
two months after discovery cut-off and, although plaintiff knew of the
document at issue long before the discovery deadline, plaintiff failed to file a
motion at that time).

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However, this court addresses this exact issue in its scheduling order.
The court’s scheduling order states “[m]otions to compel discovery shall be filed
no later than fourteen [14] days after the failure of the good faith efforts of the
parties to resolve the dispute under D.S.D. LR 37.1”. See Docket No. 25, p. 2.
The parties held the first meet-and-confer teleconference on March 25, 2021,
which proved to be unsuccessful. Docket No. 39-7. Thirteen days after the
teleconference, on April 7, 2021, Mr. Curran filed the pending motion to
compel. See Docket No. 32.
By upholding defendant’s timeliness argument, the court would be, in
effect, punishing Mr. Curran for pursuing answers to his discovery requests.
Motions to compel are typically dismissed based on timeliness when the
movant knows of discovery deficiencies yet delays requesting supplemental
responses or seeking court intervention. See Ginett, 1998 WL 777998, at *5;
Suntrust Bank, 210 F.R.D. at 200-02. However, in this case, defendant
continuously sent discovery supplements to Mr. Curran and additional
requests were made shortly afterwards. These supplements came on December
30, 2020, January 11, 2021, March 1, 2021, March 8, 2021, March 26, 2021,
and April 5, 2021. See Docket Nos. 34-4, 34-5, 34-6, 34-7, 34-8 & 34-9. The
court would not issue a ruling that required plaintiff to file a discovery motion
before defendant had even finished supplying the requested discovery.
Because this motion was filed within fourteen days after the parties’ good-faith
efforts to resolve the discovery dispute, this motion is timely pursuant to
D.S.D. LR 37.1.
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C.

Joint Protective Order’s Effect on Individual Discovery Requests
In his initial motion, Mr. Curran requested the court to compel defendant

to answer interrogatory nos. 2, 3, 8-12, 14-17, and 25, and produce documents
responsive to requests for production nos. 1, 3-10, 15, 16, and 17. Docket No.
33, p. 1. Since this discovery dispute arose, the parties have filed a joint
motion for protective order, which was adopted and entered by the court on
May 21, 2021. See Docket Nos. 41, 42 & 43. According to Mr. Curran’s reply
brief, “[t]he Privilege Log that was belatedly provided by Defendant sufficiently
responds to Interrogatory No. 14. As such, that Interrogatory is no longer
deficient. Additionally, at the time this Reply is filed, the parties are discussing
a Joint Motion for Protective Order to cover Interrogatory Nos. 8, 12, 15, 16,
17, and Request Nos. 15, 16, and 17. However, if not ruled upon in this Order,
Plaintiff would reserve the right to renew his Motion for these requests, if not
fully and completely responded to by Defendant.” See Docket No. 40, p. 1 n.1.
Since the court has now ordered the protective order [Docket No. 43], the
motion to compel as to interrogatory nos. 8, 12, 14, 15, 16, and 17, and
requests for production of document nos. 15, 16, and 17 is denied as moot.
D.

Remaining Individual Discovery Requests and Objections
1.

Interrogatory No. 2

This interrogatory asks:
List and describe all verbal counseling’s [sic], write-ups, reprimands,
suspensions, demotions or any other employment action taken against
Plaintiff while employed by Defendant from November 2014 to the

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present. This Interrogatory includes proposed disciplinary action(s)
issued to Plaintiff.
See Docket No. 34-2, p. 4.
In response, defendant stated that Mr. Curran is already in possession of
all discoverable materials pertaining to this interrogatory. See Docket No. 38,
p. 9. In Mr. Curran’s deficiency notice to defendant, Mr. Curran asserted that
“the Interrogatory seeks a description of ‘all verbal’ conversations regarding
employment actions. Even assuming all relevant emails are produced, reliance
upon those emails would be unresponsive.” Docket No. 34-1, p. 2. The
court disagrees.
Mr. Curran has failed to identify what verbal conversations or
consultations he believes to be in defendant’s possession and what the
relevance of any such conversations would be. Furthermore, Mr. Curran has
not cited any legal authority from this district or elsewhere holding that “all
verbal” conversations are the proper subject of discovery. A party’s speculation
that more discovery exists is not sufficient to compel discovery; the theoretical
possibility that more documents exist would render discovery never-ending.
See Phoenix Process Equip. Co. v. Capital Equip. & Trading Corp., No. 3:16CV00024-RGJ-RSE, 2019 WL 1261352, at *16 (W.D. Ky. Mar. 19, 2019) (citing
Hubbard v. Potter, 247 F.R.D. 27, 29 (D.D.C. 2008)). Instead, a moving party
must demonstrate that the documents previously produced “permit a
reasonable deduction that other documents may exist or did exist and have
been destroyed.” Hubbard, 247 F.R.D. at 29.

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Furthermore, “Mere speculation that information might be useful will not
suffice; litigants seeking to compel discovery must describe[,] with a reasonable
degree of specificity, the information they hope to obtain and its importance to
their case.” Woodmen of the World, 2007 WL 1217919, at *1 (citing Cervantes,
464 F.2d at 994). Here, Mr. Curran has not argued, with any reasonable
degree of specificity, what exactly he is asking defendant to provide with this
interrogatory. Defendant states they have diligently searched for and produced
all responsive information presently known to defendant, and because the
Federal Rules of Civil Procuedure impose a continuing obligation to disclose
newly discovered material information, there is no additional information that
can be compelled at this time. Docket No. 38, p. 10. While descriptions of
verbal conversations and consultations regarding employment actions taken
against Mr. Curran may be relevant, defendant cannot produce them if they do
not exist. Mr. Curran’s speculation, without more, does not permit the
inference that additional documents, or conversations, exist or existed.
Therefore, Mr. Curran’s motion to compel production of descriptions of “all
verbal” conversations is denied.
2.

Interrogatory No. 3

This interrogatory asks:
Identify all appraisers, by name, gender, race, national origin and
employment date, employed at the Office of Special Trustee for American
Indians (“OST”) Grand [sic] Plains Region from November 2012 to the
present.
See Docket No. 34-2, p. 4.

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In his deficiency notice to defendant, Mr. Curran asserted that, to date,
defendant has not provided any responsive information for this interrogatory.
Docket No. 34-1, p. 2. Defendant’s response to this interrogatory was that
counsel has been working diligently to acquire responsive information and cites
work-related challenges posed by COVID-19 and agency reorganizations
causing difficulties in locating personnel to assist in compiling this data.
Docket No. 38, p. 11; Docket No. 34-3, p. 3.
This motion to compel was filed on April 7, 2021, and the last
supplemental answers the defendant provided to Mr. Curran were served on
April 5, 2021, around nine months ago. In that time, there is no indication in
the record that defendant has provided any information responsive to
interrogatory no. 3. This is unacceptable. Defendant has had ample time to
compile information or locate personnel to assist in finding relevant
information. While the court understands the challenges posed by the COVID19 pandemic, it is no excuse to delay any sort of response for nine months.
Therefore, defendants are ordered to fully respond to interrogatory 3, and
Mr. Curran’s motion to compel as to interrogatory no. 3 is granted.
3.

Interrogatory No. 9

This interrogatory asks:
Identify all persons, by name and title, with whom Deborah Lewis
consulted about issuing a “minimally successful” rating to Plaintiff on his
annual appraisal issued for FY 2015. Identify the date and a summary
of that communication. If the communication was written the document
should be produced in lieu of a summary.
See Docket No. 34-2, p. 5.
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In response, defendant stated that Mr. Curran is already in possession of
all discovery material pertaining to this interrogatory and is otherwise unaware
of any written communications related to Mr. Curran’s minimally successful
rating. Docket No. 34-3, p. 4. In Mr. Curran’s deficiency notice to defendant,
Mr. Curran argues that defendant has only responded to the existence of
written communications, but this interrogatory seeks any verbal consultations
as well. Docket No. 34-1, p. 3. For the same reasons stated in Section D.1,
supra, Mr. Curran’s motion to compel as to interrogatory no. 10 for verbal
consultations is denied.
4.

Interrogatory No. 10

This interrogatory asks:
Identify all persons, by name, title, gender, race and national origin, who
consulted about demoting Plaintiff. Identify the date and a summary of
that communication. If the communication was written the document
should be produced in lieu of a summary.
See Docket No. 34-2, p. 5.
In response, defendant stated that “Plaintiff is already in possession of all
discoverable material pertaining to this Interrogatory. Defendant is otherwise
unaware of any written communication related to Plaintiff’s demotion.” Docket
No. 34-3, p. 4. In his deficiency notice to defendant, Mr. Curran argued that
defendant had only responded to the existence of written communications, but
this interrogatory seeks any verbal consultations as well. Docket No. 34-1,
p. 4. For the same reasons stated in Section D.1, supra, Mr. Curran’s motion
to compel as to interrogatory no. 10 for verbal consultations is denied.

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5.

Interrogatory No. 11

This interrogatory asks:
Identify all persons, by name, title, gender, race and national origin, who
consulted about reassigning Plaintiff. Identify the date and a summary
of that communication. If the communication was written the document
should be produced in lieu of a summary.
See Docket No. 34-2, p. 5.
In response, defendant stated, “Plaintiff is already in possession of all
discoverable material pertaining to this Interrogatory. Defendant is otherwise
unaware of any written communication related to Plaintiff’s demotion.” Docket
No. 34-3, p. 5. In his deficiency notice to Defendant, Mr. Curran asserted that
this response was merely a cut/paste from its response to interrogatory no. 10,
the interrogatory did not seek information related to a demotion but rather the
reassignment of Mr. Curran, and also seeks any verbal consultations. Docket
No. 34-1, p. 4. The court agrees in part.
Looking at defendant’s response to interrogatory no. 11, it is the exact
same response that was given to interrogatory no. 10. Compare Docket No.
34-3, p. 4, with Docket No. 34-3, p. 5. This is a nonresponsive answer to
Mr. Curran’s discovery request. Therefore, Mr. Curran’s motion to compel as
to identifying all persons, by name, title, gender, race and national origin, who
consulted about reassigning Mr. Curran is granted. However, for the same
reasons stated in Section D.1, supra, Mr. Curran’s motion to compel as to
interrogatory no. 10 for verbal consultations is denied.

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6.

Interrogatory No. 25

This interrogatory asks:
Identify Plaintiff’s first-level supervisor, by name, title, gender, race and
national origin, from November 2014-January 2015 and July 2015.
See Docket No. 34-2, p. 7.
In response, defendant stated, “Plaintiff is already in possession of all
discoverable material pertaining to this interrogatory. Defendant nonetheless
restates that Plaintiff’s first-level supervisor from November 2014 to January
2015 was Robert Hatfield, and his first-level supervisor in July 2015 was Alex
Glade.” Docket No. 34-3, p. 7. In Mr. Curran’s deficiency notice to defendant,
Mr. Curran pointed out that defendant’s response did not provide the “title,
gender, race and national origin” of either Robert Hatfield or Alex Glade.
Docket No. 34-1, p. 8.
According to defendant, during one of the meet-and-confer conferences,
they pointed Mr. Curran’s primary counsel to specific pages within the report of
investigation where Mr. Glade provided a signed affidavit with his title, gender,
race, and national origin. See Docket No. 38, p. 13. Furthermore, defendant
asserted they intended to supplement their response to interrogatory 25 to
include Mr. Hatfield’s race and national origin. Id. If both are true, the court
believes this would address the deficiencies set forth by Mr. Curran. However,
in his reply brief, Mr. Curran continues to assert that the supplements
provided by defendant did not fully address the deficiencies in interrogatory no.
25, among others. See Docket No. 40, p. 2. To the extent defendant has not

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supplemented its response to interrogatory no. 25 to supply the requested
demographic information, Mr. Curran’s motion to compel is granted.
7.

Request for Production No. 1

This request seeks:
All statements of possible witnesses, whether written, oral, summarized,
or otherwise reproduced in any manner, relating to the incident
described in the Complaint or the defenses raised in the Answer;
including any such statement referenced in Defendant’s answer to
Interrogatory No. 1.
See Docket No. 34-2, p. 7.
In response, defendant stated, “Plaintiff is already in possession of all
discoverable material pertaining to this Request.” Docket No. 34-3, p. 8. In
Mr. Curran’s deficiency notice to defendant, Mr. Curran argued that this was
merely a boilerplate general objection and defendant should be compelled to
produce documents relevant to request no. 1. Docket No. 34-1, p. 8.
Defendant has asserted they have provided all known discoverable
material regarding this request and Mr. Curran has failed to explain to the
court specifically what documents are missing. Without a clear understanding
as to what Mr. Curran is claiming is deficient in the defendant’s discovery
productions, it leaves the court speculating as to what is being asked to be
compelled. As discussed previously, a party’s speculation that more discovery
exists is not sufficient. See Hubbard, 247 F.R.D. at 29.
However, Mr. Curran cites a District of Nebraska case for the proposition
that objecting on the basis that the moving party is already in possession of
documents it now seeks is an insufficient response to requests for production;
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a party is required to produce documents in its possession, custody, or control,
regardless of whether it believes the requesting party already has the
documents. See Gomez v. Tyson Foods, Inc., No. 8:08CV21, 2012 WL
3111897,*4 (D. Neb. July 31, 2012). While the District of South Dakota has
not addressed this issue, several other districts have affirmed Mr. Curran’s
argument. See also Ragan v. Jeffboat, LLC, 149 F. Supp. 2d 1053, 1061 (S.D.
Ind. 2001); Walt Disney Co. v. DeFabiis, 168 F.R.D. 281, 284 (C.D. Cal.
1996); Cook v. Rockwell Int’l Corp., 161 F.R.D. 103, 105 (D. Colo. 1995); Fort
Washington Res., Inc. v. Tannen, 153 F.R.D. 78, 79 (E.D.Pa. 1994) (“[I]t is not a
bar to the discovery of relevant material that the same material may be in
the possession of the requesting party or obtainable from another source.”).
The court is unable to ascertain which documents defendant argues
Mr. Curran already possesses and, importantly, when and from whom
Mr. Curran obtained them. While the court agrees it would be duplicative to
compel defendant to re-produce documents it has already provided Mr. Curran,
there is no indication whether Mr. Curran obtained the responsive documents
from some other source or from defendant in the administrative proceeding.
Mr. Curran has a right to receive responsive documents from defendant in this
litigation, regardless of whether or not he already obtained them elsewhere.
But it would be a waste of time, money, and resources to require defendant to
re-produce documents it has already produced to Mr. Curran, whether in this
litigation or in the preceeding administrative matter.

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Accordingly, Mr. Curran’s motion to compel as to request for production
no. 1 is denied, but defendant is ordered to identify for Mr. Curran the
documents (by BATES stamp number) they claim to be responsive to
this request.
8.

Request for Production No. 3

This request seeks “[c]omplete copies of Defendant’s litigation hold
policies.” See Docket No. 34-2, p. 7.
In response, defendant objected to this request, claiming that it calls for
information protected by the attorney work-product doctrine and the attorneyclient privilege. Docket No. 34-3, p. 8. In Mr. Curran’s deficiency notice to
defendant, Mr. Curran reasoned that this was an improper boilerplate
objection, that no privilege log had been provided pursuant to Rule 26(b)(5),
and the request is not seeking privileged information, but rather a copy of the
Agency’s litigation hold policies. Docket No. 34-1, p. 9.
According to defendant, during the second meet-and-confer
teleconference on April 27, 2021, the parties agreed that defendant would
produce a privilege log related to the defendant’s litigation hold policy, which
would include a list of individuals who received a litigation hold in the course of
the present litigation. See Docket No. 38, pp. 13-14. In his reply brief,
Mr. Curran argues, “Defendant merely refers Plaintiff to its Privilege Log. The
Privilege Log has zero reference to any [litigation hold] policy.” Docket No. 40,
pp. 2-3. The court agrees with Mr. Curran.

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Mr. Curran’s request for production no. 3 did not ask for a privilege log
or for any privileged information—it simply asks for complete copies of
defendant’s litigation hold policies. See Docket No. 34-2, p. 7. Attorney-client
privilege only protects “the confidentiality of communications between attorney
and client made for the purpose of obtaining legal advice.” Brown Bear v. Cuna
Mut. Grp., 266 F.R.D. 310, 317 (D.S.D. 2009). Additionally, the attorney
workproduct doctrine, according to the Eighth Circuit, asks “whether, in light
of the nature of the document and the factual situation in the particular case,
the document can fairly be said to have been prepared or obtained because
of the prospect of litigation. But the converse of this is that even
though litigation is already in prospect, there is no work product immunity
for documents prepared in the regular course of business rather than for
purposes of litigation.” Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 604
(8th Cir. 1997) (citation omitted). Requesting the litigation hold policies of the
Agency does not require invading confidential communications between
attorney and client, and defendant has not shown that the policy was prepared
for this prospective litigation. Therefore, defendant’s objections are
without merit.
Again, the scope of discovery under Rule 26(b) is extremely broad. See 8
Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 2007 (3d ed.
Oct. 2020 update). Requesting the Agency’s litigation hold policies fits squarely
within the purview of Rule 26(b). Accordingly, Mr. Curran’s motion to compel
as to request for production no. 3 is granted.
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9.

Request for Production No. 4

This request asks for:
All text messages, electronically stored information . . ., documents,
memoranda, notes, correspondence, drafts, and written material of any
kind maintained by Deborah Lewis relating to Plaintiff from November
2014 to the present.
See Docket No. 34-2, p. 7.
In response, defendant stated, “Plaintiff is already in possession of all
discoverable material pertaining to this Request.” Docket No. 34-3, p. 8. In his
deficiency notice to defendant, Mr. Curran asserted that this was merely a
boilerplate general objection and defendant should be compelled to produce
documents relevant to request no. 4. Docket No. 34-1, p. 9. For the same
reasons stated in Section D.7, supra, Mr. Curran’s motion to compel as to
request for production no. 4 is denied, but defendant is ordered to indicate to
Mr. Curran which documents (by BATES stamp number) already in
Mr. Curran’s possession are responsive to this request.
10.

Request for Production No. 5

This request seeks:
All text messages, electronically stored information . . ., documents,
memoranda, notes, correspondence, drafts, and written material of any
kind maintained by Steve Bottemiller relating to Plaintiff from November
2014 to the present.
See Docket No. 34-2, p. 7.
In response, defendant stated, “Plaintiff is already in possession of all
discoverable material pertaining to this Request.” Docket No. 34-3, p. 8. In his
deficiency notice to defendant, Mr. Curran stated that this was merely a
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boilerplate general objection and defendant should be compelled to produce
documents relevant to request no. 5. Docket No. 34-1, p. 10. For the same
reasons stated in Section D.7, supra, Mr. Curran’s motion to compel as to
request for production no. 5 is denied, but defendant is ordered to indicate to
Mr. Curran which documents (by BATES stamp number) already in
Mr. Curran’s possession are responsive to this request.
11.

Request for Production No. 6

This request seeks:
All text messages, electronically stored information . . ., documents,
memoranda, notes, correspondence, drafts, and written material of any
kind maintained by Eldred Lesansee relating to Plaintiff from November
2014 to the present.
See Docket No. 34-2, p. 7
In response, defendant stated, “Plaintiff is already in possession of all
discoverable material pertaining to this Request.” Docket No. 34-3, p. 9. In his
deficiency notice to defendant, Mr. Curran reasoned that this was merely a
boilerplate general objection and defendant should be compelled to produce
documents relevant to request no. 6. Docket No. 34-1, p. 10. For the same
reasons stated in Section D.7, supra, Mr. Curran’s motion to compel as to
request for production no. 6 is denied, but defendant is ordered to indicate to
Mr. Curran which documents (by BATES stamp number) already in
Mr. Curran’s possession are responsive to this request.
12.

Request for Production No. 7

This request seeks:

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All documents, electronically stored information . . ., electronic mail
messages, metadata, memoranda, notes, correspondence, drafts, and
written material of any kind known by Defendant to relate or refer in any
way to the allegations made in the Complaint, the defenses raised in the
Answer, or issues in this litigation.
See Docket No. 34-2, p. 8.
In response, defendant stated, “Plaintiff is already in possession of all
discoverable material pertaining to this Request.” Docket No. 34-3, p. 9. In his
deficiency notice to defendant, Mr. Curran reasoned that this was merely a
boilerplate general objection and defendant should be compelled to produce
documents relevant to request no. 7. Docket No. 34-1, p. 11. For the same
reasons stated in Section D.7, supra, Mr. Curran’s motion to compel as to
request for production no. 7 is denied, but defendant is ordered to indicate to
Mr. Curran which documents (by BATES stamp number) already in
Mr. Curran’s possession are responsive to this request.
13.

Request for Production No. 8

This request seeks:
All draft and final documents relating to Plaintiff’s November 2015
demotion.
See Docket No. 34-2, p. 8.
In response, defendant stated, “Plaintiff is already in possession of all
discoverable material pertaining to this Request.” Docket No. 34-3, p. 9. In
Mr. Curran’s deficiency notice to defendant, Mr. Curran reasoned that this was
merely a boilerplate general objection and Defendant should be compelled to
produce documents relevant to request no. 8. Docket No. 34-1, p. 11. For the
same reasons stated in Section D.7, supra, Mr. Curran’s motion to compel as
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to request for production no. 8 is denied, but defendant is ordered to indicate
to Mr. Curran which documents (by BATES stamp number) already in
Mr. Curran’s possession are responsive to this request.
14.

Request for Production No. 9

This request seeks:
All draft and final documents relating to Plaintiff’s November 2015
reassignment.
See Docket No. 34-2, p. 8.
In response, defendant stated, “Plaintiff is already in possession of all
discoverable material pertaining to this Request.” Docket No. 34-3, p. 9. In his
deficiency notice to defendant, Mr. Curran reasoned that this was merely a
boilerplate general objection and defendant should be compelled to produce
documents relevant to request no. 9. Docket No. 34-1, p. 11-12. For the same
reasons stated in Section D.7, supra, Mr. Curran’s motion to compel as to
request for production no. 9 is denied, but defendant is ordered to indicate to
Mr. Curran which documents (by BATES stamp number) already in
Mr. Curran’s possession are responsive to this request.
15.

Request for Production No. 10

This request seeks:
All draft and final documents relating to Plaintiff’s FY 2015 performance
appraisal.
See Docket No. 34-2, p. 8.
In response, defendant stated, “Plaintiff is already in possession of all
discoverable material pertaining to this Request.” Docket No. 34-3, p. 9. In his
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deficiency notice to defendant, Mr. Curran reasoned that this was merely a
boilerplate general objection and defendant should be compelled to produce
documents relevant to request no. 10. Docket No. 34-1, p. 12. For the same
reasons stated in Section D.7, supra, Mr. Curran’s motion to compel as to
request for production no. 10 is denied, but defendant is ordered to indicate to
Mr. Curran which documents (by BATES stamp number) already in
Mr. Curran’s possession are responsive to this request.
E.

Plaintiff’s Requests for Sanctions
Mr. Curran asks the court for an award of attorneys’ fees for bringing

this motion to compel under Federal Rule of Civil Procedure 37(a)(5)(A). That
rule states:
(5) Payment of Expenses; Protective Orders.
(A)

If the Motion Is Granted (or Disclosure or Discovery Is Provided
After Filing). If the motion is granted—or if the disclosure or
requested discovery is provided after the motion was filed—the
court must, after giving an opportunity to be heard, require the
party or deponent whose conduct necessitated the motion, the
party or attorney advising the conduct, or both to pay the
movant’s reasonable expenses incurred in making the motion,
including attorney’s fees. But the court must not order this
payment if:

(i) the movant filed the motion before attempting in good faith to
obtain the disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an aware of expenses unjust.
FED. R. CIV. P. 37(a)(5)(A). To satisfy this hearing requirement, the court “can
consider such questions on written submissions as well as on oral hearings.”
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FED. R. CIV. P. 37(a)(4) advisory committee’s note to 1993 amendment
(regarding Rule 37(a)(4), which has since been renumbered as Rule 37(a)(5)).
Here, the court has granted, in part, Mr. Curran’s motion to compel
responses to specific discovery requests. Therefore, Mr. Curran meets the first
criterion of Rule 37(a)(5)(A). And Mr. Curran first raised the issue of Rule 37
costs and attorneys’ fees in his motion to compel. See Docket No. 33, p. 12.
Therefore, defendant had an opportunity to be heard when it responded in
writing to Mr. Curran’s motion. With these requirements satisfied, the court
examines whether any of the exceptions outlined in Rule 37(a)(5)(A)(i)-(iii)
apply. If none of the exceptions apply, the court must award costs. FED R. CIV.
P. 37(a)(5)(A).
First, Mr. Curran must not have filed the motion before attempting in
good faith to obtain the disclosure or discovery without court action. Both
parties have submitted to the court documentation showing repeated attempts,
through multiple meet-and-confer teleconferences, to resolve the discovery
disputes without involving the court. Therefore, the court finds that
Mr. Curran did not file this motion to compel before attempting in good faith to
resolve its discovery disputes with defendant.
Next, the court considers whether defendant’s non-disclosure, response,
or objection was substantially justified. Defendant argues, “[a] vast amount of
the discovery sought by Plaintiff during litigation was already in Plaintiff’s
possession,” and, as a result, many of Mr. Curran’s interrogatories and
requests for production in the present litigation were cumulative. Docket
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No. 38, p. 19. Thus, requiring defendant to re-disclose matters already in
Mr. Curran’s possession would be unduly burdensome, inefficient, and
unreasonable. The court agrees.
While this court is compelling defendant to identify (by BATES stamp
number) the responsive documents defendant believes Mr. Curran already
possesses, this does not mean defendant’s objections were without substantial
justification. No District of South Dakota case has compelled this type of
disclosure. Therefore, it was reasonable, and substantially justified, for
defendants to object to re-sending documents they believed to already be in
Mr. Curran’s possession.
Furthermore, many of the other objections defendant’s had with
Mr. Curran’s discovery requests dealt with privacy issues. Mr. Curran filed his
motion to compel on April 7, 2021, defendant responded on April 29, 2021, and
Mr. Curran replied on May 12, 2021. See Docket Nos. 32, 38, 40. The Joint
Protective Order that the parties agreed on was not filed until May 21, 2021.
See Docket No. 43. Therefore, defendant’s objections were, similarly,
substantially justified—they raised privacy objections to discovery requests at
that time because a protective order had not yet been filed. Accordingly,
pursuant to Federal Rule of Civil Procedure 37(a)(5)(A)(ii), an award of
attorneys’ fees is not warranted.

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CONCLUSION
Based on the foregoing facts, law, and analysis, it is hereby:
ORDERED that plaintiff’s motion to compel [Docket No. 32] is granted as
to interrogatory nos. 3, 11 (as narrowed), and 25 and requests for production
no. 3. Defendant shall provide, within 21 days of the date of this order,
information and copies of documents responsive to these discovery requests.
Plaintiff’s motion is denied as to interrogatory nos. 2, 8, 9, 10, 12, 14, 15, 16,
and 17 and requests for production nos. 1, 4, 5, 6, 7, 8, 9, 10, 15, 16, and 17.
However, defendant is
ORDERED to provide to Mr. Curran within 21 days of the date of this
order the BATES stamp numbers of documents already in Mr. Curran’s
possession that are relevant to the pertinent requests for production as stated
more specifically in the body of this opinion. It is further
ORDERED that Plaintiff’s motion for costs and attorneys’ fees is denied.
NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. § 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. § 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. § 636(b)(1)(A). Failure to file timely objections will result in the
waiver of the right to appeal questions of fact. Id. Objections must be timely

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and specific in order to require review by the district court. Thompson v. Nix,
897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir. 1986).
DATED this 10th day of January, 2022.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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