United States District Court, E.D. Michigan, Southern Division
ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO [DOC.
118] AND UPHOLDING THE MAGISTRATE JUDGE'S OPINION AND
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL DISCOVERY
Honorable Victoria A. Roberts, Judge
Michael A. Kitchen (“Kitchen”) filed a motion to
compel discovery of various documents from Defendants
Stephenson, Steece, Gambati, Hightower and Finco. On June 12,
2017, Magistrate Judge David R. Grand entered an opinion and
order DENYING the motion. Kitchen timely objected; these
objections are fully briefed.
reviewing objections to a Magistrate Judge's order on a
pretrial, non-dispositive issue, the Court must modify or set
aside the part of the decision that is determined to be
“clearly erroneous or contrary to law.” 28 U.S.C.
§636(b)(1)(A); Fed.R.Civ.P. 72(a); United States v.
Curtis, 237 F.3d 598, 602-03 (6th Circ. 2001). The
“clearly erroneous” standard is only applicable
to a Magistrate Judge's factual findings; the
“contrary to law standard” is applicable to the
Judge's legal conclusions. Visteon Global Techs. v.
Garmin Int'l, Inc., 903 F.Supp.2d 521, 524-525 (E.D.
finding is considered clearly erroneous where “although
there is evidence in support, the reviewing court… is
left with the definite and firm conviction that a mistake has
been committed.” United States v. Gypsum Co.,
333 U.S. 364, 395 (1948). If it is possible to have two or
more permissible views of evidence, then the Magistrate
Judge's decision is not considered “clearly
erroneous.” Anderson v. City of Bessemer City,
N., 470 U.S. 564, 573-574 (1985).
other hand, “a legal conclusion is considered contrary
to law when it fails to apply or misapplies relevant
statutes, case law, or rules of procedure.”
Robinson v. Allstate Ins. Co., No. 09-10341, 2011 WL
3111947, at 2 (E.D. Mich. July 2016, 2011). Ultimately, when
reviewing a Magistrate Judge's legal conclusions, the
Court is required to use its independent judgment.
submitted a request for production of various documents. He
sought: Special Problem Offender Notices, personal
information about other prisoners, misconduct charges filed
against other prisoners, as well as all grievances and
complaints filed against Defendants. He also requested access
to all emails and communications between Defendant Steece and
other prison officials concerning prisoner transfers.
Defendants objected. They said they did not have custody or
control over the documents. Kitchen stated that even if the
Defendants do not have custody over the requested
information, they utilized the information to facilitate his
transfer. Additionally, the Defendants objected to allowing
Kitchen access to all emails and communications between
Defendant Steece and other prison officials regarding
transfers; Defendants say such communications are not
relevant to the action and disclosure could jeopardize prison
safety. In responding to Kitchen's request, Defendant
Steece searched his emails and found no communications
regarding Kitchen's transfer.
Magistrate Judge ruled in Defendants' favor. His decision
cannot be said to be either clearly erroneous or contrary to
law. The Magistrate Judge stated that Kitchen only provided a
conclusory argument that the Defendants would have control
over the documents through the Michigan Department of
Corrections (“MDOC”). Specifically, Kitchen
argued that when he subpoenas documents, the subpoenas are
referred to the Michigan Attorney General's Office for
objections. That office refers the subpoenas to defense
counsel and counsel for the Attorney General. Kitchen goes on
to argue that that will result in a dispute between
Kitchen's attorney and defense counsel. Based on this
sequence of events as Kitchen describes, Kitchen argued that
the Defendants will ultimately have possession or control of
the requested documents.
Judge Grand correctly decided that Kitchen's argument
failed to show actual possession or control by Defendants. In
fact, Kitchen seems to understand that he must request
documents from the MDOC, which he has already done.
Magistrate Judge Grand points out that under Fed.R.Civ.P. 34,
“a request for production may only seek documents or
tangible things which are in the possession, custody, or
control of the party upon whom the request is served.”
In his objections, Kitchen says: (1) “Magistrate Judge
Grand's definition of “possession” or
“control” is too narrow and will only result in
the Defendants or the MDOC being permitted to
“filibuster” Kitchen's request [Doc. 118, Pg
2]; and (2) Defendant Steece's search of his emails for
communications regarding Kitchen's transfer was
insufficient as a response to Kitchen's request for all
emails and communications regarding prisoner transfers [Doc.
118, Pg 2].
Court carefully reviewed the record and the case law cited in
both parties' briefs as well as Magistrate Judge
Grand's order. The Magistrate Judge correctly decided
that Kitchen failed to show that the Defendants were in
possession or control of the requested documents. As
Magistrate Judge Grand concluded, the Court is unable to
order any of Kitchen's thirteen requests for production.
the Court finds Magistrate Judge Grand appropriately decided
Defendant Steece's response was sufficient. The
Magistrate Judge decided that under Fed.R.Civ.P. 26(b)(1), a
request for production must be proportional to the needs of
the case. Kitchen's request to obtain all communications
to or from Steece discussing, planning and/or seeking the
transfer of any prisoner has unlimited breadth and is not
proportional to the needs of the case. Defendant Steece
searched his emails for responsive documents concerning
Kitchen's transfer. The Judge correctly decided that this
was adequate to fully comply with his discovery obligations.
Judge Grand's decision is neither clearly erroneous nor
contrary to law. The Court OVERRULES
Kitchen's objections and UPHOLDS the
Magistrate Judge's opinion and order.