The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is plaintiff's motion to compel discovery and to amend the Scheduling Order*fn1 (Docket No. 13*fn2 ). Responses to this motion were due by October 21, 2011, and any reply was due by November 4, 2011, and the motion was deemed submitted (without oral argument) on November 4, 2011 (Docket No. 15).
This is a removed civil rights action arising from the alleged wrongful death of Adam Murr, plaintiff's son, while in defendant Erie County's custody at the Erie County Holding Center (see Docket No. 1, Notice of Removal, Ex. A, State Compl.). Defendants duly answered (Docket No. 3).
Plaintiff seeks (Docket No. 13) responses to her discovery demands and answers to her Interrogatories and an extension of the Scheduling Order (see Docket No. 14). She complains that defense responses were not complete (Docket No. 13, Pl. Atty. Aff. ¶¶ 6-8; Docket No. 20, Pl. Reply Memo. at 2). According to her reply, her Interrogatories sought "standard foundation information, such as the name of the individual or individuals who participated in preparing the answers," the identity of all who may have knowledge about the circumstances of Murr's incarceration, his screening for suicide risk, and his suicide, and training of Sheriff's personnel (Docket No. 20, Pl. Reply Memo. at 3-4). Defendants responded that the information sought was protected by attorney-client privilege, work product privilege or that the question was vague, ambiguous, over broad (see id. at 5, 7; Docket No. 16, Defs. Atty. Decl. Ex. A). Defendants objected to answering Interrogatories by attaching documents, as asked in the Interrogatories (Docket No. 16, Defs. Atty. Decl. Ex. A), and plaintiff argues that her request to include document production in answer to her Interrogatories is sanctioned by Rule 33(d) (Docket No. 20, Pl. Reply Memo. at 8).
Interrogatory No. 7 asked to disclose written communication between
the defendants and the United States Department of Justice*fn3
(see Docket No. 13, Ex. A), but defendants object that the
information is not reasonably calculated to lead to discoverable
information (Docket No. 20, Pl. Reply Memo. at 8).
This Court granted plaintiff an extension of the Scheduling Order, with plaintiff's expert disclosure now due by October 14, 2011, defense expert disclosure by November 30, 2011, discovery to be completed by January 27, 2012, and referral to mediation to conclude by February 7, 2012 (Docket No. 14). In her motion, plaintiff noted that she could not generate an expert report without the discovery sought in this motion (Docket No. 13, Pl. Atty. Aff. ¶ 9).
Defendants respond that they replied to plaintiff's discovery in their response (Docket No. 16, Defs. Atty. Decl. ¶ 3, Ex. A; cf. Docket No. 18, Pl. Atty. Reply Aff. ¶ 5). Defendants thus request dismissal of this motion (Docket No. 16, Defs. Atty. Decl. ¶ 6).
In reply, plaintiff opposes dismissal of her motion because the served Answers to Interrogatories are "incomplete and evasive" (Docket No. 20, Pl. Reply Memo. at 2; see also id. at 5-8). Plaintiff, however, withdraws her motion (without prejudice) regarding her document production requests, being satisfied with defense production on October 21 and November 3, 2011 (id. at 2-3).
Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an Order compelling discovery, with that motion including a certification that the movant in good faith conferred or attempted to confer with the party not making the disclosure to secure that disclosure without court intervention. Fed. R. Civ. P. 37(a)(5)(A).
"A party seeking discovery may move for an order compelling an answer, designation, production, or inspection," where a party fails to respond to a request to inspect documents, id., R. 37(a)(3)(B)(iv).
If a motion to compel is granted, or if the opponent produces discovery after the motion is filed, the Court "must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that 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 payment if movant files before attempting in good faith to resolve the matter, the opponent's nondisclosure, ...