Kemp v. Harris

263 F.R.D. 293, 2009 U.S. Dist. LEXIS 87290, 2009 WL 3030738
CourtDistrict Court, D. Maryland
DecidedSeptember 22, 2009
DocketNo. WDQ-08-0793
StatusPublished
Cited by23 cases

This text of 263 F.R.D. 293 (Kemp v. Harris) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kemp v. Harris, 263 F.R.D. 293, 2009 U.S. Dist. LEXIS 87290, 2009 WL 3030738 (D. Md. 2009).

Opinion

MEMORANDUM AND ORDER

PAUL W. GRIMM, United States Magistrate Judge.

This Memorandum and Order addresses Defendant’s Motion for Sanctions or, Alternatively, to Compel Responses to Harris’ Written Discovery, Paper No. 62; Plaintiffs’ Response to Defendant Harris’ Motion for Sanctions or, Alternatively, to Compel Responses to Harris’ Written Discovery, Paper No. 70; and Officer Harris’ Reply to Plaintiff’s Response to Motion for Sanctions or, Alternatively, to Compel Responses to Harris’ Written Discovery, Paper No. 71.1 I find that a hearing is unnecessary in this case. See Local Rule 105.6. The plaintiffs assert that they have complied with the defendant’s discovery requests. Pl.’s Resp. ¶ 6. However, counsel for Harris asserts that the responses provided are incomplete or evasive. Def.’s Reply ¶¶ 2-3. For the reasons stated herein, Harris’s motion is DENIED IN PART and GRANTED IN PART. This Memorandum and Order disposes of Paper Nos. 62, 70, and 71.

On December 4, 2008, before the Scheduling Order was entered, Defendant Harris served Interrogatories and Document Requests on all seventeen plaintiffs. Def.’s Mot. ¶ 1; Def.’s Mot., Ex. 1-34, Paper Nos. 62-2-62-13. In doing so, he violated Fed. R.Civ.P. 26(d)(1) (stating that “[a] party may not seek discovery from any source before [295]*295the parties have conferred as required by Rule 26(f)”) and Local Rule 104.4 (stating that “discovery shall not commence and disclosures need not be made until a scheduling order is entered”). The Court entered a Scheduling Order, Paper No. 59, on May 18, 2009, requiring the plaintiffs’ Fed.R.Civ.P. 26(a)(2) disclosures regarding experts by July 17, 2009, and setting a discovery deadline of September 30, 2009. On May 26, 2009, the defendant served a duplicate copy of the Interrogatories and Document Requests on all seventeen plaintiffs.2 Def.’s Mot. ¶ 3; Def.’s Mot., Ex. 1-34, Paper Nos. 62-2-62-13. Thus, the plaintiffs’ responses were due on June 25, 2009. Fed.R.Civ.P. 33(b)(2).

According to the plaintiffs, during a June 26, 2009 telephone conference among counsel, all attorneys but Defendant Harris’s counsel “agreed that an extension of the deadlines in the scheduling order would be appropriate.” Pl.’s Mot. ¶¶8-9. During a July 2, 2009 telephone conference among counsel, confirmed by e-mail later that day, Plaintiffs’ counsel said that plaintiffs’ responses would be served by July 31, 2009. Def.’s Mot. ¶ 4; Def.’s Mot., Ex. 37-38, Paper No. 62-13. The parties agreed that “[djocuments can be produced in a piecemeal fashion.” Def.’s Mot., Ex. 37-38. Also, the defendants agreed that they would not object when the plaintiffs failed to designate their experts by July 15, 2009. Def.’s Mot., Ex. 38. By email, the parties agreed that “Plaintiffs should be able to name their liability experts) by the end of July and advise if such experts will testify about the underlying incidents or about the supervisory liability.”3 Id.

Plaintiffs’ counsel informed Defense counsel by letter on July 29, 2009, that the plaintiffs’ responses would not be served by July 31, 2009. Def.’s Mot. ¶ 5; Def.’s Mot., Ex. 39, Paper No. 62-13. They wrote: “[D]e-spite our best efforts, we need more time to respond to your written discovery____Perhaps we should schedule another conference call with an eye toward revising the discovery schedule.” However, Plaintiffs’ counsel failed to provide a date certain by which the overdue discovery responses would be served. See Jayne H. Lee v. Flagstaff Indus., 173 F.R.D. 651, 656 (D.Md.1997) (“a response to a request for production of documents which merely promises to produce the requested documents at some unidentified time in the future, without offering a specific time, place and manner, ... is treated as a failure to answer or respond ..., and the moving party is free to file a motion to compel and for sanctions pursuant to Fed.R.Civ.P. 37(a), if good faith efforts to resolve the dispute with the opposing party have failed”). Def.’s Mot., Ex. 39. With the letter, the plaintiffs provided the “Statements of Probable Cause” that the defendants had filed against them, and the court documents indicating that the State’s Attorney’s Office nolle grossed the charges. Def.’s Mot. ¶ 5.

Defense counsel e-mailed Plaintiffs’ counsel on July 31, 2009, to inquire whether the plaintiffs’ responses would be served that day. Def.’s Mot. ¶ 6. In reply, Plaintiffs’ counsel simply “referenced his letter of July 29,2009.” Id.4

On August 3, 2009, Defense counsel filed the pending Motion with the Court, along with a Certificate of Good Faith, Paper No. 63. He asks the Court to compel the plaintiffs’ responses and modify the Scheduling Order accordingly, or to drastically limit the evidence the plaintiffs may introduce in this case, apparently disregarding the fact that the potentially case-dispositive sanctions he seeks (preclusion of fact and expert witnesses, preclusion of documentary evidence, striking of damages) are not available for motions to compel discovery filed pursuant to Rule 37(a). See Fed.R.Civ.P. 37(a)(5)(A); cf. Fed.R.Civ.P. 37(b)(2)(A). The plaintiffs [296]*296filed their response on August 20, 2009, and served their discovery responses the same day. Pl.’s Resp. ¶ 18. Defendant Harris alleges that “there are many insufficient discovery responses that have kept Officer Harris and his counsel in a confused and muddled state as to Plaintiffs knowledge of individuals with personal knowledge and the persons Plaintiffs intend to name as experts,” because the plaintiffs failed to provide contact information for the people listed and did not indicate the extent of these potential witnesses’ personal knowledge. Def.’s Reply ¶ 2-3. Further, Defendant Harris asserts in his reply that the plaintiffs have not yet designated their experts.5 Id. ¶ 4.

Plaintiffs’ attorneys acknowledge that they were “unable to file responses to Harris’ discovery requests by July 31, 2009” and that they were “late in responding to this discovery.” Pl.’s Resp. ¶ 12. They insist that they “acted in good faith in an attempt to complete discovery” by “hir[ing] an intern primarily to assist in this endeavor,” but “misjudged their ability to complete the discovery responses” by the deadline. Id. ¶¶ 12, 14. The plaintiffs argue that Defendant Harris’s counsel “did not endeavor to resolve this discovery dispute” and “did not endeavor to comply with Local Rule 104.7.” Id. ¶ 16. The plaintiffs contend that there are no outstanding discovery requests, and that the defendant’s motion should be denied. Pl.’s Resp. ¶ 6.

Fed.R.Civ.P. 37(a)(3)(B)(iii) provides that a party seeking discovery may move to compel a response if the other party fails to respond to a discovery request.

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Bluebook (online)
263 F.R.D. 293, 2009 U.S. Dist. LEXIS 87290, 2009 WL 3030738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kemp-v-harris-mdd-2009.