Hanson v. Brey et al

Filing 112

ORDER signed by Judge Lynn Adelman on 6/28/16 that plaintiffs motion to compel 97 is GRANTED IN PART and DENIED IN PART. Defendant Van Ermen shall either produce to plaintiff the completed form (an example blank form is at Docket #86-1) or explain to him why he cannot produce it within seven days of this order. Further ordering that defendants need not respond to plaintiffs May 26, 2016 discovery requests. Further ordering that defendants motion for a protective order 99 is DENIED as moot. Further ordering that defendants motion to strike 103 is GRANTED. The clerks office shall strike Docket #93-96 from the record. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________
DANIEL L. HANSON,
Plaintiff,
v.

Case No. 14-CV-1024

SEAN M. VAN ERMEN, et al.,
Defendants.
______________________________________________________________________
ORDER
Plaintiff Daniel Hanson, a Wisconsin state prisoner, filed a motion to compel on
May 27, 2016, which is now fully briefed and ready for decision 1. Also before me are
two motions filed by defendants: a motion for protective order and a motion to strike,
both of which were filed on June 10, 2012.
On February 2, 2016, at plaintiff’s request, I extended the discovery deadline
from February 19, 2016, to April 19, 2016. On February 7, 2016, plaintiff served
defendant Van Ermen with discovery requests consisting of eight requests for
production, zero interrogatories, and eighty items styled as requests for admission.
According to Van Ermen, the requests for admission read more like interrogatories. Van
Ermen timely responded. He states that he “answer[ed] the items styled as requests for
admission when [he was] able to understand such requests, and produc[ed] nonprivileged documents within [his] custody, possession, and/or control when not
otherwise objected to.” (Docket #102 at 2).

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In plaintiff’s reply in support of his motion to compel, plaintiff clarifies that his motion to
compel applies only to the discovery he served upon defendant Van Ermen; it does not
extend to the discovery he served upon defendant Amundson. (Docket #105 at 7).

On April 13, 2016, again at the plaintiff’s request, I extended the discovery
deadline from April 19, 2016, to June 3, 2016. Plaintiff served his second set of
discovery requests on Van Ermen on April 15, 2016. These requests again contained
eight requests for production and zero interrogatories; they also contained an additional
forty items styled as requests for admission. Van Ermen states that these additional
requests for admission also read like interrogatories. Despite believing many of the
requests were duplicative and confusing in nature, Van Ermen timely responded to all of
them.
On May 26, 2016, just one week before the discovery deadline of June 3, 2016,
plaintiff filed this motion to compel, which included an additional 194 items styled as
requests for admission.
Plaintiff’s Motion to Compel
Van Ermen argues that plaintiff’s motion should be denied because: (1) he has
already informed plaintiff that the documents he has requested in his motion are not in
his custody, possession, or control; (2) discovery is closed and the third set of discovery
requests was untimely; (3) the purported requests for admission are actually
interrogatories and therefore exceed the allowed number of interrogatories; (4) he has
already responded to the requests that he could understand and were not
argumentative; and (5) forcing him to respond to additional requests would cause him
annoyance, oppression, and undue burden and expense that are out of proportion to
the needs of this case.
As a threshold matter, the court concludes that plaintiff’s third set of discovery
requests were untimely. In the scheduling order, I stated that, “All requests for discovery

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shall be served by a date sufficiently early so that all discovery is completed no later
than the [deadline].” (Docket #54) (emphasis added). Plaintiff served his most recent
set of discovery requests on May 26, 2016, eight days before the revised discovery
deadline of June 3, 2016. Because the Federal and local rules allow a party thirty days
to respond to requests for admission, there was inadequate time for Van Ermen to
respond to plaintiff’s third set of discovery before the discovery deadline. As Van Ermen
noted, if plaintiff wanted him to respond to additional requests for admission, such
requests should have been served on defendant no later than May 4, 2016. Van Ermen
and Amundson are not required to respond to plaintiff’s third set of discovery requests.
That, however, does not resolve plaintiff’s motion to compel because, as Van
Ermen has noted, plaintiff’s third set of discovery requests was largely duplicative of
discovery that Van Ermen already responded to. In fact, according to plaintiff, the third
set of discovery requests is actually a resubmission of his second set of discovery
requests, which he re-filed because he was not satisfied with the original responses Van
Ermen gave him on May 18, 2016.
It appears that Van Ermen timely responded to plaintiff’s second set of discovery
requsts. He states that, to the extent he understood the requests, he responded to them
and produced documents that were in his possession, custody, or control. To the extent
he did not understand the requests, he indicated that in his response. It is not entirely
clear, but it does not appear that plaintiff attempted to clarify his requests or confer with
Van Ermen about his responses.
The court notes that Civil Local Rule 37 requires that anyone who files a motion
to compel discovery to file, along with the motion, “a written certification by the movant

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that, after the movant in good faith has 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, the parties are unable to reach an accord.” (Civil L. R. 37, E.D. Wis.) That’s a
long way of saying that a plaintiff needs to first discuss a dispute with the defendant
before asking the court to intervene, and that if he can’t work out the dispute with the
defendant and needs to resort to a motion to compel, he must provide the court with
proof that he tried to work it out with the defendant first.
The court understands that an incarcerated plaintiff cannot simply pick up the
phone and call counsel for Van Ermen, nor can he send counsel an e-mail. But he can
write to opposing counsel. The plaintiff has not attached to his motion to compel any
evidence indicating that he tried to work out this dispute with Van Ermen’s counsel.
Instead, he just re-filed his discovery, apparently hoping Van Ermen would give different
responses.
Normally, I would require plaintiff and Van Ermen’s counsel to confer before
considering plaintiff’s motion, but this case has been pending nearly two years,
discovery is now closed, and dispositive motions are due in less than two weeks. In
addition, the positions of the parties are clear: plaintiff believes Van Ermen “could have
given more effort in answering these questions” (Docket #105 at 9); and Van Ermen
believes he adequately responded as required by the rules. Requiring the parties to
confer at this point would simply waste additional time and resources.
After reviewing both plaintiff’s requests and Van Ermen’s responses, I agree that
Van Ermen has, for the most part, adequately responded and/or objected to plaintiff’s
discovery requests. Van Ermen objected only in those instances where plaintiff’s

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request was unclear, confusing, or argumentative. In addition, Van Ermen asserts that
he has already produced all of the requested documents in his possession, custody,
and control. I cannot compel Van Ermen to produce documents he does not have.
Further, plaintiff’s general dissatisfaction with Van Ermen’s responses is too
vague for me to act upon. He complains generally that Van Ermen didn’t “answer
properly” or “give effort,” but he never states why he believes the answers are improper
or incomplete.

Without specific explanations from plaintiff about which particular

responses he is dissatisfied with and why, I cannot determine what additional
information Van Ermen should provide, especially given that Van Ermen maintains that
he fully responded where possible.
There is, however, one exception, where plaintiff is very specific about what he
wants but has not received despite numerous requests. In his reply brief, plaintiff
discusses at length his many efforts to obtain a completed copy of a form entitled
“Command for Testing by Law Enforcement Officer” (see an example blank form at
Docket #86-1). (Docket #105 at 7). Plaintiff states that he has the blank form, and he
believes this form was never filled out by Van Ermen as required by state law. If the
completed form exists, he wants it.
It is unclear to me whether Van Ermen has the completed form in his possession,
custody, or control, or even if the completed form exists. If it does exist and Van Ermen
has it in his possession, custody, or control, he shall produce a copy of it to plaintiff. If
he does not have it in his possession, custody, or control or if it does not exist, he shall
notify plaintiff of that fact. Given that the dispositive motion deadline is quickly
approaching, Van Ermen shall either produce the completed form to plaintiff or explain

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to him why he cannot produce it within seven days of this order. I will deny plaintiff’s
motion to compel in all other respects.
Defendants’ Motion for a Protective Order
Defendants have filed a motion asking me to enter a protective order allowing
them not to respond to plaintiff’s newest set of discovery. I have already ruled that
plaintiff’s third set of discovery was untimely and that defendants do not have to
respond. Because there is no need for a protective order, I will deny defendants’ motion
as moot.
Defendants’ Motion to Strike
Defendants explain that plaintiff served a total of four sets of discovery on them,
which contained numerous items styled as requests for admission. The items each
contained two boxes beneath them, one with the word “Admit” next to it, and one with
the word “Deny” next to it. Defendants chose not to check either box, but instead replied
to each individual item in paragraph form. After defendants served their responses on
plaintiff, he chose to check the boxes based on his interpretation of the defendants’
written responses. Plaintiff then filed the requests with boxes that he checked; he did
not include defendants’ written responses. (Docket #93-96).
Defendants ask that I strike these documents from the record. They argue that
the documents are inauthentic because they did not check any of the boxes and that the
documents are prejudicial to defendants because they do not contain accurate
representations of defendants’ answers to plaintiff’s requests to admit.
I agree there is no reason for these documents to be in the record. They are
misleading because they imply that defendants checked the boxes, which they did not.

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In addition, they contain none of the objections or qualifications that defendants
included in their responses. I will grant defendants’ request to strike them from the
record. This does not mean that plaintiff cannot cite to or rely on defendants’ responses
to his discovery requests in future filings. He may do so; however, he must cite to
defendants’ actual responses, not his interpretation of defendants’ responses.
THEREFORE IT IS ORDERED that plaintiff’s motion to compel (Docket #97) is
GRANTED IN PART and DENIED IN PART. Defendant Van Ermen shall either produce
to plaintiff the completed form (an example blank form is at Docket #86-1) or explain to
him why he cannot produce it within seven days of this order.
IT IS FURTHER ORDERED that defendants need not respond to plaintiff’s May
26, 2016 discovery requests.
IT IS FURTHER ORDERED that defendants’ motion for a protective order
(Docket #99) is DENIED as moot.
IT IS FURTHER ORDERED that defendants’ motion to strike (Docket #103) is
GRANTED. The clerk’s office shall strike Docket #93–96 from the record.
Dated at Milwaukee, Wisconsin, this 28th day of June, 2016.
s/ Lynn Adelman
______________________
LYNN ADELMAN
District Judge

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