Gray v. Faulkner

148 F.R.D. 220, 1992 U.S. Dist. LEXIS 21254, 1992 WL 471287
CourtDistrict Court, N.D. Indiana
DecidedApril 14, 1992
DocketNo. S86-172 (RLM)
StatusPublished
Cited by34 cases

This text of 148 F.R.D. 220 (Gray v. Faulkner) is published on Counsel Stack Legal Research, covering District Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gray v. Faulkner, 148 F.R.D. 220, 1992 U.S. Dist. LEXIS 21254, 1992 WL 471287 (N.D. Ind. 1992).

Opinion

MEMORANDUM AND ORDER

PIERCE, United States Magistrate Judge.

This case is now before the court on a Motion to Compel Discovery filed by plaintiff, Alvin K. Gray, on March 24, 1992.

Plaintiffs Interrogatories Served on February 19, 1991

Mr. Gray initially seeks an order compelling defendants Duckworth and Faulkner to answer a set of eight interrogatories served by Mr. Gray on or about February 19, 1991. Defendant Hartley is the only defendant who has furnished answers to the interrogatories. The interrogatories in question were not directed to any particular defendant. Rather, they merely contained a general statement indicating that Mr. Gray, by his counsel, was “posting] the following interrogatories:” In the absence of any indication that the interrogatories were directed to each defendant or any particular defendant, Mr. Gray’s motion to compel is DENIED. Mr. Gray will be permitted to serve similar interrogatories in the future, but each set of interrogatories must specifically identify the party from whom responses are being sought.

Request Nos. 23, 21, 10, II, 12 and 13 of Plaintiffs “Third Motion to Produce”

Mr. Gray’s motion to compel is also concerned with Production Requests Nos. 23, 24, 40, 41, 42 and 43 of his “Third Motion to Produce.” According to the certificate of service, defendants responded to those production requests on September 25, 1991 by indicating that the requested documents would be provided to plaintiffs counsel upon agreement that the documents would be kept confidential and would not be disclosed to the plaintiff or other inmates. In a letter dated October 29,1991, Mr. Gray’s counsel wrote to defendants’ counsel requesting that defendants furnish a form for a proposed protective order. However, it appears that defendants did not offer any further response to the requests or furnish Mr. Gray’s counsel with a proposed form of agreed protective order until April 6, 1992, after Mr. Gray’s counsel had filed the present motion to compel.

The court finds that defendants’ responses to Document Requests 23, 24, 40, 41, 42 and 43 are insufficient. If a responding party believes that information sought by a discovery request is privileged or subject to some rule of confidentiality, the responding party must object and/or apply to the court for a protective order. In this case, defendants did not produce the documents, did not object to the document requests, and did not seek a protective order from the court. Instead, they responded to the requests by indicating that the documents would be produced if Mr. Gray’s attorney agreed that the documents would be kept confidential. A responding party cannot unilaterally impose conditions upon compliance with a discovery request.

Although defendants’ responses to the document requests in question are insufficient, the court is reluctant to order the [223]*223unconditional production of documents which might adversely affect the security of the institution or reveal personal information having no relevance to the subject matter of the present action. Under these circumstances, plaintiffs Motion to Compel Discovery with respect to Requests Nos. 23, 24, 40, 41, 42 and 43 of plaintiffs Third Motion to Produce is HELD IN ABEYANCE, pending defendants’ submission of a' proper application for a protective order supported by a detailed statement of reasons, citation of legal authority, and identification of the specific rule of confidentiality or privilege relied upon. Any such request for protective order shall be submitted by defendants within fifteen (15) days of this date.

Request Nos. 33, 3k, 35, 36, 37 and 39 of Plaintiff’s “Third Motion to Produce”

Mr. Gray also seeks an order compelling further responses to Request Nos. 33, 34, 35, 36, 37 and 39 of his “Third Motion to Produce.” With respect to Request Nos. 33 and 34, Mr. Gray apparently does not believe defendants’ claims that the documentation requested in these items is non-existent or as minimal as defendants have indicated. The fact that a party may disbelieve or disagree with a response to a discovery request, however, is not a recognized ground for compelling discovery, absent some indication beyond mere suspicion that the response is incomplete or incorrect. Should it later appear that requested information was not revealed or was deliberately concealed, a responding party or attorney would be subject to appropriate sanctions. Plaintiffs Motion to Compel with respect to Request Nos. 33 and 34 is DENIED.

Defendants have objected to Request No. 35 on the ground that the request is overbroad, “because it would be impossible to provide a proper answer,” and because “[tjhere are essentially no limitations in the request.” The court must agree. Request No. 35 contains no time limitations; it is not limited to any particular facility of the Department of Correction; and it vaguely seeks information about “other incident[s], whether inter-inmate or involving staff....” Accordingly, defendants’ objection to Request No. 35 is sustained, and plaintiffs Motion to Compel Discovery with respect to such request is DENIED.

Plaintiffs Request No. 36 calls upon defendants to produce the following:

The title, cause number and Court of any litigation which has arisen from any assault or other incident whether inter-inmate or involving staff, occurring during, or connected with, temporary housing of DEATH ROW inmates outside of DEATH ROW, whether in Protective Custody, IDU, or elsewhere at any Indiana State Correctional Facility including but not necessarily limited to the Michigan City Facility.

Defendants’ response to this request raises no objection, but simply indicates that the information requested is “unknown,” and that the records are “not maintained.” The court must agree with Mr. Gray’s assertion that this response is evasive and thus insufficient. A party responding to a Rule 34 production request “cannot furnish only that information within his immediate knowledge or possession; he is under an affirmative duty to seek that information reasonably available to him from his employees, agents, or others subject to his control.” 10A Federal Procedure, Law Ed. § 26:377, p. 49 (1988). Documents in the possession of a party’s attorney (in this case the Attorney General of Indiana) may be considered to be within the control of the party for purposes of a Rule 34 production request. 10A Federal Procedure, Law Ed. § 26:380, p. 52 (1988). Of course, “[i]f a document or thing does not exist, it cannot be in the possession, custody, or control of a party and therefore cannot be produced for inspection.” 10A Federal Procedure, Law Ed. § 26:381, pp. 52-53 (1988).

In this case, defendants’ statement that the requested information is “unknown” gives no indication that defendants have attempted to locate the information within their possession, custody or control, and their statement that the information is “not maintained” does not necessarily mean that it does not exist. Plaintiffs Motion to Compel with respect to Request No. 36 is GRANTED. Defendants shall respond to such request within thirty (30) days of this date. In [224]*224their response, defendants shall certify that they have conducted a search for the information reasonably available to them through their agents, attorneys, or others subject to their control and have determined that the information requested either does not exist or that it has been produced.

Mr. Gray’s Request No.

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148 F.R.D. 220, 1992 U.S. Dist. LEXIS 21254, 1992 WL 471287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-faulkner-innd-1992.