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Kandey v. Leo Barbera

March 5, 2012

KANDEY COMPANY, INC., PLAINTIFF,
v.
LEO BARBERA, BARBERA UTILITY CONTRACTING, INC., D/B/A HORIZONTAL HOLES AND HORIZONTAL EQUIPMENT MANUFACTURING, INC., DEFENDANTS.



The opinion of the court was delivered by: Hon. Hugh B. Scott

Order

Before the Court is plaintiff's motion to compel (Docket No. 19*fn1 ). Defendants respond that they were in the process of assembling the documents sought by plaintiff (Docket No. 21, Defs. Atty. Aff. ¶¶ 2, 3). Responses to this motion were due by January 25, 2012, with any reply due by February 1, 2012 (Docket No. 20), and the motion was submitted (without oral argument) on February 1, 2012 (id.).

BACKGROUND

This is a removed diversity contract action. Plaintiff now moves to compel defendants to make their initial disclosure and produce documents and things in response to its discovery demands. Plaintiff argues that defendants waived any objections to the discovery demands by failing to respond within the 30 days for responding to them (Docket No. 19, Pl. Memo. at 2-3).

Defendants responded that they are assembling responsive documents and would serve initial disclosures by January 27, 2012 (Docket No. 21, Defs. Atty. Aff. ¶¶ 2-3). Plaintiff's reply focuses upon recovery of reasonable motion expenses under Federal Rule of Civil Procedure 37(a)(5) as well as production (Docket No. 22, Pl. Atty. Reply Decl. ¶¶ 3, 8, 10).

DISCUSSION

I. Standard

Discovery under the Federal Rules is intended to reveal relevant documents and testimony, but this process is supposed to occur with a minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 655-65 (Civil 2d ed. 1994). "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter." Fed. R. Civ. P. 26(b)(1) (effective Dec. 1, 2007). Initial disclosure includes producing "a copy of, or a description by category and location of, all documents . . . that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims . . . ." Fed. R. Civ. P. 26(a)(1)(B).

Federal Rule 26(b)(2)(i) allows this Court to limit the scope and means for discovery if

"the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive."

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)(2)(A).

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, response, or objection was substantially justified, or "other circumstances make an award of expenses unjust," Fed. R. Civ. P. 37(a)(5)(A).

II. ...


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