Opinion
Civil Action No.: 13-CV-10613
04-18-2014
Pamela Buschmohle, Plaintiff, v. WWRD US, LLC, a foreign limited liability company, Defendant.
District Judge Stephen J. Murphy, III
Magistrate Judge Mona K. Majzoub
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO COMPEL [17] AND
DENYING PLAINTIFF'S MOTION TO COMPEL [23]
This matter comes before the Court on Defendant's Motion to Compel Plaintiff's Deposition (docket no. 17) and Plaintiff's Counter-Motion to Compel Defendant's Production of Documents and to Produce Certain Employees for Deposition (docket no. 23). The Parties each filed Responses to the Motions (docket nos. 22 and 28), and Defendant filed a Reply to Plaintiff's Response (docket no. 26). The Parties filed Joint Statements of Unresolved Issues with regard to both Motions. (Docket nos. 29 and 30). The Motions have been referred to the undersigned for consideration. (Docket nos. 18 and 24.) The parties have fully briefed the Motions; the Court has reviewed the pleadings and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). The Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).
I. Governing Law
The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may obtain discovery on any matter that is not privileged and is relevant to any party's claim or defense if it is reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). "Relevant evidence" is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. But the scope of discovery is not unlimited. "District courts have discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce." Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007).
Rules 33 and 34 allow a party to serve interrogatories and requests for production of documents on an opposing party. Fed.R.Civ.P. 33, 34. A party receiving these types of discovery requests has thirty days to respond with answers or objections. Fed.R.Civ.P. 33(b)(2), 34(b)(2)(A). Rule 30 allows a party to conduct a deposition of any person without leave of the Court, subject to certain exceptions. Fed.R.Civ.P. 30(a)(1). If the party receiving discovery requests under Rules 33 or 34 fails to respond properly, or if the person whose deposition is sought under Rule 30 fails to properly comply with the rule, Rule 37 provides the party who sent the discovery or noticed the deposition the means to file a motion to compel. Fed.R.Civ.P. 37(a)(3)(B). If a court grants a Rule 37 motion to compel, then the court must award reasonable expenses and attorney's fees to the successful party, unless the successful party did not confer in good faith before the motion, the opposing party's position was substantially justified, or other circumstances would make an award unjust . Fed.R.Civ.P. 37(A)(5)(a).
II. Defendant's Motion to Compel Plaintiff's Deposition
On January 16, 2014, Defendant served Plaintiff with Defendant's Notice of Taking the Deposition of Plaintiff. (Docket no. 17-5.) The notice indicated that Plaintiff was to appear for her deposition at Defendant's attorney's offices on February 7, 2014. (Id. at 3.) Plaintiff's attorney informed Defendant that Plaintiff would not appear for her deposition until Defendant provided responses to Plaintiff's discovery requests. (See docket no. 17 at 8.) Defendant now asks that the Court compel Plaintiff to attend her deposition.
Plaintiff asserts that "the parties had an agreement (or at least a tacit understanding) that the written discovery relating to this case . . . would be completed before any depositions would be taken." (Docket no. 22 at 2.) Defendant contends that no such agreement exists. (Docket no. 26 at 1.) Plaintiff further asserts that because Defendant's discovery responses were deficient, Plaintiff should not have to appear for her deposition until Defendant's responses are appropriately supplemented. (Docket no. 22 at 7.) Any other course, Plaintiff argues, would allow Plaintiff to be "ambushed at her deposition with documents that Defendant had failed to produce in discovery." (Id. at 6.)
Regardless of Plaintiff's concerns over being "ambushed" by Defendant, Plaintiff provides no legal basis for her assertion that she is not required to comply with a Notice of Deposition if Defendant has not completely responded to her discovery requests. To the contrary, "[u]nless the court orders otherwise . . . (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery." Fed. R. Civ. P. 26(d)(2). Therefore, the Court will grant Defendant's Motion and order Plaintiff to attend her deposition at a mutually convenient date, time and place, within 21 days of the date of this order, unless otherwise agreed by the Parties.
III. Plaintiff's Motion to Compel
In Plaintiff's Motion to Compel, she asserts that Defendant's responses to her First Set of Interrogatories and Document Requests and her "separate set of 75 document requests" were deficient. (Docket no. 23 at 1-2.) Thus, she seeks "complete responses" to the requests. (Id.) Additionally, Plaintiff asks that the Court "order[ Defendant] to produce its employees for depositions that were properly noticed by Plaintiff's counsel." (Id. at 6.) Plaintiff's Motion is procedurally and substantively deficient on several counts.
Under Local Rule 7.1(a), a movant must confer with opposing counsel to determine whether the contemplated motion will be opposed. If so, the motion must state that such a conference occurred. E.D. Mich. L.R. 7.1(a)(2). Plaintiff does not state that such a conference occurred. Moreover, Plaintiff filed her Motion on February 26, 2014. (See id.) Defendant contends, and Plaintiff acknowledges, that Defendant agreed to supplement its discovery responses by February 28, 2014, two days after Plaintiff filed her Motion. (See id. at 5.) Thus, had Plaintiff sought concurrence, the instant Motion may have been unnecessary.
Additionally, pursuant to Local Rule 37.2, "[a]ny discovery motion filed pursuant to Fed. R. Civ. P. 26 through 37, shall include, in the motion itself or in an attached memorandum, a verbatim recitation of each interrogatory, request, answer, response, and objection which is the subject of the motion or a copy of the actual discovery document which is the subject of the motion." E.D. Mich. L.R. 37.2. This verbatim recitation of discovery requests is necessary for the Court to properly review a motion. Plaintiff included no such recitation. Instead, Plaintiff cites to two letters sent from Plaintiff's attorney to Defendant's attorney outlining the "deficiencies" in Defendant's responses. The documents to which Plaintiff cites are insufficient for purposes of Local Rule 37.2 and are insufficient for the Court to determine the substance of Plaintiff's Motion.
Moreover, Plaintiff's Motion articulates no legal basis under which the Court should order Defendant to produce any documents or respond to any discovery requests. Aside from failing to specify even a single interrogatory or request for production at issue, Plaintiff merely asserts that Defendant's objections were "boilerplate objections" and that Defendant failed to provide a privilege log. (See docket no. 23 at 7.) Plaintiff does assert the basis for some of her requests in the Parties' Joint Statement of Unresolved Issues, but the Parties' Joint Statement is not the proper filing in which to make such an argument. And even if the Court were to consider Plaintiff's argument therein, she still fails to set for a recitation of the discovery requests at issue.
Finally, with regard to Plaintiff's request that the Court order Defendant to produce certain employees for depositions, Plaintiff includes such a request in the title of her Motion, and she asks for such relief at the end of her Motion. But Plaintiff has provided the Court with no detail regarding the nature of her deposition notices. Plaintiff has not stated whom she intends to depose, when she sent her Notices of Deposition, or how Defendant responded to her notices. Again, without more, the Court has no basis under which to make a determination of Plaintiff's Motion. Therefore, the Court will deny Plaintiff's Motion to Compel.
IT IS THEREFORE ORDERED that Defendant's Motion to Compel [17] is GRANTED. Plaintiff must attend her deposition at a mutually convenient time and place, within 21 days, unless otherwise agreed to by the Parties.
IT IS FURTHER ORDERED that Plaintiff's Motion to Compel [23] is DENIED.
NOTICE TO THE PARTIES
Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen days from the date of this Order within which to file any written appeal to the District Judge as may be permissible under 28 U.S.C. § 636(b)(1).
________________
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE
PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon Counsel of Record on this date.
Lisa C. Bartlett
Case Manager