Opinion
NO: 98-4226-RDR, No: 98-4227-RDR.
January 19, 2001.
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs' Cross Motion to Compel Production of Documents and Reimbursement of Expenses (doc. 163). Plaintiffs move for an order compelling Defendant to reimburse Plaintiffs for the expenses they allegedly have incurred "in sifting through photocopies of mixed UCB and Adecco documents, including bad (illegible) copies." In addition, Plaintiffs move for an order compelling Defendant to produce the originals of the documents that Defendant produced as a result of the Court's August 7, 2000 Memorandum and Order (doc. 127).
A. Reimbursement of Expenses
The Court will deny Plaintiffs' request for reimbursement of Plaintiffs' expenses. Plaintiffs cite no authority upon which the Court could order reimbursement of Plaintiffs' expenses under these circumstances. The Court's own research reveals that a party may be sanctioned under Fed.R.Civ.P. 37(b) for producing unrelated, non-responsive documents in response to a court order. S ee Rothman v. Emory University, 123 F.3d 446, 455 (7th Cir. 1997) (party entitled to recover its fees and expenses when party violated discovery order by producing numerous non-responsive documents.) In this case, however, there is no support for Plaintiffs' allegation that Defendant has produced non-responsive documents and mixed them in with UCB Films, Inc. documents.
The claimed non-responsive documents are the so-called "Adecco documents," i.e., the documents that were in the possession of Adecco Employment Services, Inc. ("Adecco"), the employment agency retained by Defendant to pre-screen applicants seeking employment at Defendant's new Tecumseh, Kansas plant. Plaintiffs argue that these documents were non-responsive to Plaintiffs' requests because the Court did not expressly order Defendant to produce them.
The Court is not persuaded by this argument. Nothing in the Court's August 7, 2000 Memorandum and Order limited Defendant's production obligation to only those documents within its physical possession. To the contrary, the Memorandum and Order made it clear that Defendant had an obligation to produce all documents within its control, even though in the possession of Adecco. See Memorandum and Order (doc.127) at 20. Furthermore, Fed.R.Civ.P. 34(a) expressly requires a party to produce all responsive documents that are in its "possession, custody or control." While the documents may have been in Adecco's physical possession, they were under Defendant's control, and Defendant had an obligation to produce them. Thus, the documents cannot be characterized as "non-responsive."
Plaintiffs also seeks reimbursement for expenses they claim to have incurred in reviewing "bad (illegible) copies." Plaintiffs do not elaborate on their claim and they present no evidence or facts about the extent of the problem. Defendant, however, explains that it has repeatedly asked Plaintiffs to identify any illegible copies, apparently without response from Plaintiffs. Based on the limited information before it, the Court finds no basis for requiring Defendant to reimburse Plaintiffs for any time or expenses they claim they have incurred in reviewing allegedly illegible copies. .
In light of the above, the Court will deny Plaintiffs' Motion to the extent is seeks an order compelling Defendant to reimburse Plaintiffs for their expenses.
B. Production of the Original Documents
The Court will also deny Plaintiffs' Motion to the extent it seeks an order compelling Defendant to produce the originals of all documents produced. Plaintiffs have provided the Court with no authority requiring the originals of documents to be provided. The Court ruled during the August 31, 2000 telephone hearing that a party who chooses to produce documents "as they are kept in the ordinary course of business" under Fed.R.Civ.P. 34(b) is not required to produce the originals of the documents. At the telephone hearing, the Court indicated that it would consider a request from Plaintiffs to review the originals if Plaintiffs provided the Court with information that would give the Court reason to doubt the completeness or accuracy of the photocopies. Plaintiffs have not provided any such information to the Court. Nor have Plaintiffs established any facts that would lead the Court to believe that the photocopied documents were not produced "as they were kept in the ordinary course of business." Accordingly, the Court will deny Plaintiff's request that the Court compel Defendant to produce the originals of the documents.
IT IS THEREFORE ORDERED that Plaintiffs' Cross Motion to Compel Production of Documents and Reimbursement of Expenses (doc. 163) is denied.
IT IS SO ORDERED.