The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is plaintiff's motion to compel disclosure (pursuant to Federal Rules of Civil Procedure 33, 34, 37, and 7) and to extend time limits for expert disclosure (Docket No. 18*fn1 ). This Court granted the extension portion of this motion and held in abeyance the discovery deadlines (cf. Docket No. 11, Scheduling Order; see also Docket No. 19, Pl. Atty. Aff. Ex. D) pending resolution of the remainder of this motion (Docket No. 23). Responses to this motion were due by January 4, 2013, with any replies due January 11, 2013 (Docket No. 22), but defendants did not file a response.
This is a removed personal injury action where the basis of federal jurisdiction alleged is diversity of citizenship (see generally Docket No. 1, Notice of Removal). Defendants' truck, driven by defendant Aghihotri, rear ended plaintiff's car in Lewiston, New York (id., Ex. A, Compl. at pages 6-8). Defendants removed this action (Docket No. 1; see Docket No. 19, Pl. Atty. Aff. Ex. B) and answered (Docket No. 4, Answer of Aghihotri and 667619 Canada Inc.; see Docket No. 19, Pl. Atty. Aff. Ex. C). This Court then entered a Scheduling Order, with plaintiff's expert disclosure was due December 4, 2012, defense expert disclosure due by January 18, 2013, and discovery completed by March 5, 2013 (Docket No. 11).
Plaintiff then served discovery demands, seeking answers to Interrogatories, document production, and depositions (Docket No. 19, Pl. Atty. Aff. ¶¶ 6-7, Exs. F, G), but defense counsel adjourned deposition (id. ¶ 8). During the initial mediation, plaintiff's counsel reminded defense counsel of the outstanding discovery but defendants have yet to respond (id. ¶ 9). Plaintiff's counsel again tried reaching defense counsel on December 3, 2012, regarding this discovery but could only leave defense counsel a voicemail message (id. ¶ 10).
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 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).
Defendants have not responded to this motion. Therefore, plaintiff's motion (Docket No. 18) to compel production of ...