Opinion
Case No. 4:04 cv 75.
December 11, 2007
OPINION AND ORDER
This matter is before the court on the following motions:
1. Motion to Relieve Defendants, Courtney B. Justice, Justice Law Office and Corinna Mon-tine from Dictates of Local Rule 26.2, filed by defendants on October 17, 2007 (DE 362);
2. Motion for A Court Order to Compel Defendant Terry Smith to Produce Tax Returns, Financial Statements to Plaintiff Per Her First Request For Production of Documents filed by the plaintiff, Annare L. Loubser, on October 11, 2007 (DE 370);
3. Motion to Compel Defendant Justice and Justice Law Et Al to Comply with Plaintiff Loubser's First Request for Production of Documents and Things Defendant Courtney B. Justice and Justice Law Et Al, filed by the plaintiff on October 11, 2007 (DE 366);
4. Motion to Compel Defendant Corinna Montine To Comply with Plaintiff Loubser's First Request for Production of Documents and Things Defendant Corinna Montine, filed by the plaintiff on October 11, 2007 (DE 368);
5. Motion to Compel Defendant Indiana Abstract Title Company Et Al to Comply with Plaintiff Loubser's First Request for Production of Documents and Things on Defendant Indiana Abstract Title Company Et Al, filed by the plaintiff on October 23, 2007 (DE 405);
6. Motion to Compel Defendant Theresa Lepper to Comply with Plaintiff Loubser's First Request for Production of Documents and Things on Theresa Lepper, filed by the plaintiff on October 23, 2007 (DE 407);
7. Motion that Patient-Privileged Information Not Be Disclosed, filed by the plaintiff on October 25, 2007 (DE 416);
8. Motion to Overrule Defendant Pala's Baseless Boilerplate Objections to Plaintiff Loubser's First Request Fort [sic] Production of Documents and Things Defendant Pala and Request for Order to Compel Defedant [sic] Pala to Comply with Plaintiff's Request, filed by the plaintiff on October 23, 2007 (DE 401);
9. Motion to Overrule Defendant Hoover's Baseless Boilerplate Objections to Plaintiff Loubser's First Request Fort [sic] Production of Documents and Things Defendant Hoover and Request for Order to Compel Defedant [sic] Hoover to Comply with Plaintiff's Request, filed by the plaintiff on October 23, 2007 (DE 403);
10. Notice Vacate Modify Motion to Quash Subpoena Pursuant to Indiana Trial Rules and for Protective Order of Date and Day and Time Duration of Subpoena, filed by the plaintiff on November 16, 2007 (DE 475);
11. Modify Motion to Quash Subpoena Pursuant to Indiana Trial Rules and for Protective Order of Date and Day and Time Duration of Subpoena, filed by the plaintiff on November 16, 2007 (DE 473, 474);
12. Response to Judge Kepner and Judge Thacker's Subpoena's And Request for Order to Overrule Objection, filed by the plaintiff on October 25, 2007 (DE 414);
13. Motion to Quash Subpoenas to Supreme Court Administrator Kevin Smith and Judges Kepner and Thacker, filed by the movants Kevin Smith, Judge Rex W. Kepner and Judge Robert W. Thacker on November 8, 2007 (DE 440);
14. Motion to Quash Subpoena to Sondra Rumple, filed by the movant Sondra Rumple, on October 25, 2007 (DE 421);
15. Response to Motion to Quash Subpona [sic] to Sondra Rumple and Move for Order to Compel Production, filed by the plaintiff on November 5, 2007 (DE 435); and
16. Objection to and Motion to Quash Subpoenas to William Roth, Candace Roth, Gregory Roth, Rusty Roth, Kindra Roth, Jillian Roth and Roth Jewelers, filed by the movants on October 25, 2007 (DE 422).
For the reasons set forth below, the motions are ruled upon as follows:
1. Motion to Relieve Defendants, Courtney B. Justice, Justice Law Office and Corinna Mon-tine from Dictates of Local Rule 26.2 (DE 362) is GRANTED.
2. Plaintiff Loubser's Motion for A Court Order to Compel Defendant Terry Smith to Produce Tax Returns, Financial Statements to Plaintiff Per Her First Request For Production of Documents (DE 370) is DENIED
3. Plaintiff Loubser's Motion to Compel Defendant Justice and Justice Law Et Al to Comply with Plaintiff Loubser's First Request for Production of Documents and Things Defendant Courtney B. Justice and Justice Law Et Al (DE 366) is DENIED;
4. Plaintiff Loubser's Motion to Compel Defendant Corinna Montine To Comply with Plaintiff Loubser's First Request for Production of Documents and Things Defendant Corinna Montine (DE 368) is DENIED;
5. Plaintiff Loubser's Motion to Compel Defendant Indiana Abstract Title Company Et Al to Comply with Plaintiff Loubser's First Request for Production of Documents and Things on Defendant Indiana Abstract Title Company Et Al (DE 405) is DENIED;
6. Plaintiff Loubser's Motion to Compel Defendant Theresa Lepper to Comply with Plaintiff Loubser's First Request for Production of Documents and Things on Theresa Lepper (DE 407) is DENIED;
7. Plaintiff Loubser's Motion that Patient-Privileged Information Not Be Disclosed (DE 416) is GRANTED;
8. Plaintiff Loubser's Motion to Overrule Defendant Pala's Baseless Boilerplate Objections to Plaintiff Loubser's First Request Fort [sic] Production of Documents and Things Defendant Pala and Request for Order to Compel Defedant [sic] Pala to Comply with Plaintiff's Request (DE 401) is DENIED AS MOOT;
9. Plaintiff Loubser's Motion to Overrule Defendant Hoover's Baseless Boilerplate Objections to Plaintiff Loubser's First Request Fort [sic] Production of Documents and Things Defendant Hoover and Request for Order to Compel Defedant [sic] Hoover to Comply with Plaintiff's Request (DE 403) is DENIED AS MOOT;
10. Plaintiff's Notice Vacate Modify Motion to Quash Subpoena Pursuant to Indiana Trial Rules and for Protective Order of Date and Day and Time Duration of Subpoena (DE 475) is GRANTED;
11. Modify Motion to Quash Subpoena Pursuant to Indiana Trial Rules and for Protective Order of Date and Day and Time Duration of Subpoena (DE 473, 474) are DENIED AS MOOT;
12. Plaintiff Loubser's Response to Judge Kepner and Judge Thacker's Subpoena's And Request for Order to Overrule Objection (DE 414) is DENIED;
13. Motion to Quash Subpoenas to Supreme Court Administrator Kevin Smith and Judges Kepner and Thacker (DE 440) is GRANTED;
14. Motion to Quash Subpoena to Sondra Rumple (DE 421) is GRANTED;
15. The Plaintiff's Response to Motion to Quash Subpona [sic] to Sondra Rumple and Move for Order to Compel Production (DE 435) is DENIED; and
16. Objection to and Motion to Quash Subpoenas to William Roth, Candace Roth, Gregory Roth, Rusty Roth, Kindra Roth, Jillian Roth and Roth Jewelers (DE 422) is GRANTED.
Background
On October 29, 2007, this court addressed a series of discovery disputes in this matter. (Opinion and Order, DE 425) The background and much of the relevant law is addressed in that order and will not be repeated here.Discussion
The local rules of this court require the electronic filing of all discovery in pro se litigation. The defendant, Courtney B. Justice, who formerly represented the plaintiff, objects to this requirement with respect to the production his files from this prior representation. Justice notes that the file consists of over 16,000 pages. The plaintiff offered no objection to this motion. Accordingly, this motion (DE 362) is GRANTED.
The motion that "patient-privileged information not be disclosed" filed by the plaintiff, Annare L. Loubser, appears to regard documents within these 16,000 pages of records. To the extent that Loubser seeks a protective order placing this information under seal, the local rules of the court require the filing under seal of personal indentifiers. See Local Rule 5.2. In addition, no defendant objected to this motion. Accordingly, to the extent the issue is not already addressed by the rules of this court, the motion (DE 416) is GRANTED.
The plaintiff's motion to compel Justice and the separate motion to compel Montine also appear to regard the production of this 16,000 plus pages. Accordingly, the motions largely are moot. In her supplemental filings to these motions, which the court will construe as reply briefs, the plaintiff argues generally that income tax returns are relevant in this matter because the defendants consider her to have made too much money. The court has addressed this argument. (See Opinion and Order, October 29, 2007, pp 14-15). Accordingly, these motions (DE 366, 368) are DENIED. This also appears to be the primary basis behind the motion to compel financial records from defendant Terry Smith. Based upon the reasoning already provided, this motion (DE 370) is DENIED.
The plaintiff also filed a motion to modify a motion to quash a subpoena prior to receiving notice of this court's order of November 15, 2007. Consequently, Loubser filed "Plaintiff's Notice Vacate Modify Motion to Quash Subpoena." (DE 475) The court construes this as a motion to withdraw the motion to modify. This motion is GRANTED. Accordingly, the clerk is DI-RECTED also to terminate the motion to quash (DE 473) and the motion for a protective order (DE 474).
In their response to Loubser's motions to compel production of documents from defendants Pala and Hoover, these defendants state that the only requests that remain subject to dispute between the parties are requests made on Hoover, numbered 3, 8, 29 and 30. According to the defendant, documents were produced in a digital format that were responsive to requests 3 and 8. However, the parties' on-going dispute regards whether the defendant is required also to produce paper copies of these documents. No reply brief was filed that sheds further light on this issue. There is no indication that Loubser's discovery request specified hard copies or that the documents were not provided as kept in the usual course of business or in a reasonably usable manner. See Federal Rule of Civil Procedure 34(b)(ii) ("If a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable."). See also Lawson v. Sun Microsystems, Inc., 2007 WL 2572170, *5 (S.D. Ind. Sept. 4, 2007).
Two additional requests, numbered 29 and 30, regard documents initially produced in the course of state court actions involving the plaintiff in 2002. Hoover responded to the request stating that he was not certain whether a witness list or Pala's "Rule 12 compliance produced by Hoover" exists. The parties present no argument regarding this information's relevancy, and Hoover indicates that his attempts to respond to this request are on-going. Accordingly, the court has no basis for further compelling a response to this request.
Finally, Loubser seeks an order determining the defendants' objections to the discovery requests are waived because they were untimely by four days. However, in light of the foregoing, noting that as between Loubser and these defendants, the objections largely are moot, there is no effect in finding them waived. Accordingly, the plaintiff's motions to compel Pala (DE 401) and Hoover (403) are DENIED AS MOOT.
On September 4, 2007, Loubser filed a series of requests for production on Indiana Abstract Title Company (DE 302) and the company's employee, Theresa Lepper (DE 300). These defendants apparently have provided no response, even an objection, to Loubser's request. In addition, these defendants have filed no response to Loubser's motion to compel. Accordingly, these motions may be subject to summary ruling. See Local Rule 7.1(a). Loubser's allegations against Indiana Abstract and Lepper include the statement that they "harassed Plaintiff Loubser from obtaining closing statements on marital property" during the pendency of her divorce proceedings. (Second Amended Complaint, ¶¶ 46, 47)
The requests include numerous vague and overbroad requests that, notwithstanding the defendants' failure to respond, the court will not enforce. For instance, Loubser has requested "All documents that Theresa Lepper produced to R. Dennis Hoover pertaining to State Action in the years 2001, 2002, 2003, 2004, 2005, 2006." Loubser also sought production of all "diaries, logs, personal notes, calendars, journals, internal memoranda, or personal files generated or maintained" by Lepper for the same 6-year period. In the meantime, Loubser provides no basis for the relevancy of this information and instead provides a series of general arguments that are made, at times verbatim, in her other motions to compel. These motions (DE 405, 407) are DENIED.
In her request for production from Judge Thacker and Judge Kepner, Loubser seeks tax and financial records dating back six years; cell phone numbers and bills over a four-year period; all dates during a three-year period on which Judge Thacker played golf with various defendants or former defendants; and all "communications" over a four-to-six-year period with other defendants.
Loubser's basis for seeking the Judges' financial and tax records continues to be the belief that the defendants considered her to have made too much money and her desire to compare her income to the defendants. As previously noted, the court has rejected this as a basis supporting the discovery requests.
Further, the plaintiff's extremely broad requests on non-parties is supported by little beyond the plaintiff's often unintelligible patchwork of quotes, citations, and in some instances, misstatements. For instance, in support of the requests made upon Judge Thacker and Judge Kepner, Loubser stated:
The presumption that the judges was [sic] impartial has been the genuine issue of material fact in this case and plaintiff has clearly shown that this was not the case therefore in showing that there was bad faith and improper behavior on the part of the judges and therefore this case 42 U.S.C.A. 1983 and 1985 was remanded to trial and therefore plaintiff Loubser is able to probe the official's thought process.
(DE 415, p. 2)
In further support, Loubser also stated that "This court found that Judge Thacker was prejudice [sic] in it's [sic] Order of June 26, 2007." (DE 414, p. 1) No reading of the court's order permits this conclusion. In addition, Loubser's request for all "communication" with several individuals over a lengthy period of time is not within the scope of a request for production and instead constitutes, at least in part, an interrogatory served on a non-party. Further, this court already has addressed such general, broad requests. ( See Opinion and Order, October 29, 2007, p. 13) ("Under any of Loubser's theories, relevant information regards not the fact of contact between these parties, whether on the golf course or the phone, but an intentional conspiracy motivated by racial animus. Burdensome discovery that has the ability to show nothing with respect to the content of any relevant communication and instead shows only communication between parties who, it can be freely admitted, had multiple legitimate reasons to communicate, will be denied."). See also Rubin v. Islamic Republic of Iran, 349 F.Supp.2d 1108, 1111 (N.D. Ill 2004) ( quoting Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 904 (7th Cir. 1981) (noting that discovery is not limitless, "and these limits become more formidable as the showing of need decreases."). Accordingly, Loubser's request for an order compelling production by Judge Thacker and Judge Kepner (DE 414) is DENIED. The defendants' motion for to quash the subpoena (DE 440) is GRANTED.
Loubser's motion to compel directed to Sondra Rumple, a court reporter in the White County Circuit Court, pertains to the transcript prepared for the appeal in Loubser's divorce. Rumple argues that she does not individually have access to the "tapes" of the proceeding and notes that Loubser already has been provided with the transcript. Rumple also notes that another copy can be prepared at the court's standard cost of $1.50 per page. Loubser, in her motion, cites Indiana Code 5-14-3-3(d) and states that she is entitled to access these documents but is being denied access based on her South African national origin. Indiana Code 5-14-3-3(d) provides that "a public agency that maintains or contracts for the maintenance of public records in an electronic data storage system shall make reasonable efforts to provide to a person making a request a copy of all disclosable data contained in the records on paper, disk, tape, drum, or any other method of electronic retrieval if the medium requested is compatible with the agency's data storage system." Under this statute, the court is permitted to provide the transcript on paper, as it apparently has, and is not required to provide "tapes." Loubser appears to acknowledge this, noting that "at a minimum, Rumple should be ordered to verify this document." (DE 435, p. 4) The plaintiff appears to contemplate some future issue regarding the authenticity of the transcript. When and if this information is necessary evidence in this case, its authenticity will be gauged according to the Rules of Evidence. See generally Federal Rules of Evidence, Article IX. In the meantime, there is no basis on which to further compel Sondra Rumple to respond to the request. Accordingly, Rumple's motion to quash (DE 421) is GRANTED, and Loubser's motion to compel (DE 432) is DENIED.
Finally, in her subpoenas served upon various members of the Roth family who have been dismissed as defendants in this matter, Loubser sought such items as "the names and addresses and phone numbers of your photographer of your wedding," "a list of names and addresses and phone numbers of everyone with whom you worked on the 2002 yearbook as student editor," "all pictures of your wedding," and "a list of names of all your cousins," among others. In her response, Loubser appears to acknowledge that this court has found such requests beyond the scope of discovery and has filed the current motion to reserve the right to address this issue on appeal. The court finds it is not necessary to address further why such requests are beyond the scope of discovery in this matter. Accordingly, the motion to quash filed by the Roth defendants (DE 422) is GRANTED.
In the order of October 29, 2007, the court made explicit that on-going discovery disputes in this matter that are resolved by the court will be subject to the Federal Rules' presumption that sanctions are imposed. Further, much of the plaintiff's arguments were addressed already by this court and this round of motions has been recast in repetitive and often unintelligible terms. Having now addressed more than 20 separate discovery motions in a case that the Seventh Circuit characterized by stating that it was "highly improbable that the suit has any merit," the court finds that discovery sanctions are overdue. In light of the record in this matter, including the presence of a past bankruptcy proceeding, the court doubts the propriety of monetary sanctions. As a result, any further frivolous discovery motions filed by Loubser will result in a recommendation that this cause of action be dismissed. The court reminds the parties that the schedule established in Judge Sharp's order of June 26, 2007, continues to control this matter.
Fore the forgoing reasons, the following motions are ruled upon as follows:
1. Motion to Relieve Defendants, Courtney B. Justice, Justice Law Office and Corinna Mon-tine from Dictates of Local Rule 26.2 (DE 362) is GRANTED.
2. Plaintiff Loubser's Motion for A Court Order to Compel Defendant Terry Smith to Produce Tax Returns, Financial Statements to Plaintiff Per Her First Request For Production of Documents (DE 370) is DENIED
3. Plaintiff Loubser's Motion to Compel Defendant Justice and Justice Law Et Al to Comply with Plaintiff Loubser's First Request for Production of Documents and Things Defendant Courtney B. Justice and Justice Law Et Al (DE 366) is DENIED;
4. Plaintiff Loubser's Motion to Compel Defendant Corinna Montine To Comply with Plaintiff Loubser's First Request for Production of Documents and Things Defendant Corinna Montine (DE 368) is DENIED;
5. Plaintiff Loubser's Motion to Compel Defendant Indiana Abstract Title Company Et Al to Comply with Plaintiff Loubser's First Request for Production of Documents and Things on Defendant Indiana Abstract Title Company Et Al (DE 405) is DENIED;
6. Plaintiff Loubser's Motion to Compel Defendant Theresa Lepper to Comply with Plaintiff Loubser's First Request for Production of Documents and Things on Theresa Lepper (DE 407) is DENIED;
7. Plaintiff Loubser's Motion that Patient-Privileged Information Not Be Disclosed (DE 416) is GRANTED;
8. Plaintiff Loubser's Motion to Overrule Defendant Pala's Baseless Boilerplate Objections to Plaintiff Loubser's First Request Fort [sic] Production of Documents and Things Defendant Pala and Request for Order to Compel Defedant [sic] Pala to Comply with Plaintiff's Request (DE 401) is DENIED AS MOOT;
9. Plaintiff Loubser's Motion to Overrule Defendant Hoover's Baseless Boilerplate Objections to Plaintiff Loubser's First Request Fort [sic] Production of Documents and Things Defendant Hoover and Request for Order to Compel Defedant [sic] Hoover to Comply with Plaintiff's Request (DE 403) is DENIED AS MOOT;
10. Plaintiff's Notice Vacate Modify Motion to Quash Subpoena Pursuant to Indiana Trial Rules and for Protective Order of Date and Day and Time Duration of Subpoena (DE 475) is GRANTED;
11. Modify Motion to Quash Subpoena Pursuant to Indiana Trial Rules and for Protective Order of Date and Day and Time Duration of Subpoena (DE 473, 474) are DENIED AS MOOT;
12. Plaintiff Loubser's Response to Judge Kepner and Judge Thacker's Subpoena's And Request for Order to Overrule Objection (DE 414) is DENIED;
13. Motion to Quash Subpoenas to Supreme Court Administrator Kevin Smith and Judges Kepner and Thacker (DE 440) is GRANTED;
14. Motion to Quash Subpoena to Sondra Rumple (DE 421) is GRANTED;
15. The Plaintiff's Response to Motion to Quash Subpona [sic] to Sondra Rumple and Move for Order to Compel Production (DE 435) is DENIED; and
16. Objection to and Motion to Quash Subpoenas to William Roth, Candace Roth, Gregory Roth, Rusty Roth, Kindra Roth, Jillian Roth and Roth Jewelers (DE 422) is GRANTED.