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Doe v. Anderson

United States District Court, E.D. Michigan, Southern Division

November 1, 2017

JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, JOHN DOE 8, JOHN DOE 9, JOHN DOE 10, and JOHN DOE 12, Plaintiffs,
v.
DUSTIN ANDERSON et al., Defendants.

          ARTHUR J. TARNOW DISTRICT JUDGE

         OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL [82], GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL [88], GRANTING DEFENDANTS' MOTION TO COMPEL [101], GRANTING PLAINTIFFS' MOTION TO COMPEL [102], AND DENYING PLAINTIFFS' MOTION TO ENFORCE SUBPOENA [103]

          MONA K. MAJZOUB UNITED STATES MAGISTRATE JUDGE.

         Plaintiffs John Does 1-5, 8-10, and 12, current and former prisoners of the Michigan Department of Corrections (MDOC), initiated this prisoner civil rights action in November 2015, against Defendants, Corrections Officers Dustin Anderson, Scott Arp, Noah Beesley, Adam Coburn, Conklin, Deschaine, Jason Erway, Charles Gollnast, Michael Hall, Hammer, Francis Heyrman, Tami Hoogewind, Erik Jacobson, Edward Juranek, Joseph Martens, McLeod, Cody Pennell, Aimee Rogers, Ross, Sherwood, Ronald Stambaugh, Gretchen Walters, Scott Schooley, Gary Stump, and Matthew Ward, Deputy Director Kenneth McKee, Director Heidi Washington, and the MDOC pursuant to 42 U.S.C. § 1983, alleging violations of their First Amendment rights.[1] (Docket nos. 1, 4, 22.) More specifically, Plaintiffs, who were housed in adult prisons while under the age of eighteen, allege that Defendants retaliated against them for exercising their First and Sixth Amendment rights to sue the MDOC and its employees for sexual abuse that they endured during their incarceration. (See docket no. 22.)

         This matter is currently before the Court on five Motions: (1) Plaintiffs' Motion to Compel Responses to Plaintiffs' First Request for Production of Documents and Deposition Testimony and Motion for Protective Order (docket no. 82); (2) Plaintiffs' Motion to Compel Complete Responses to Plaintiffs' Interrogatories Regarding Trial Witnesses (docket no. 88); (3) Defendants' Motion to Compel Certain Depositions and Preserve the Right to Take Others After Discovery Cut-Off as Needed (docket no. 101); (4) Plaintiffs' Motion to Compel Complete Responses to Plaintiffs' Second Request for Production of Documents (docket no. 102); and (5) Plaintiffs' Motion to Enforce Subpoena to MDOC (docket no. 103). Plaintiffs did not respond to Defendants' Motion to Compel; however, Defendants have filed responses to each of Plaintiffs' Motions to Compel, and the MDOC responded to Plaintiffs' Motion to Enforce Subpoena. (Docket nos. 90, 94, 106, 107.) Plaintiffs filed reply briefs to Defendants' Response to Plaintiffs' third Motion to Compel (docket no. 109) and to the MDOC's Response to Plaintiffs' Motion to Enforce Subpoena (docket no. 110). The parties have also filed Joint Statements of Resolved and Unresolved Issues with regard to Plaintiffs' first two Motions to Compel. (Docket nos. 95, 97, 133.) Additionally, the parties and the MDOC have filed Supplemental Briefs with regard to Plaintiffs' third Motion to Compel and Plaintiffs' Motion to Enforce Subpoena. (Docket nos. 119, 120, 122, 123.) The Motions have been referred to the undersigned for consideration. (Docket nos. 85, 92, 108.) The Court has reviewed the pleadings and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f). The Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).

         I. Discovery Standards

         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, is relevant to any party's claim or defense, and is proportional to the needs of the case. 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. Information need not be admissible in evidence to be discoverable. Fed.R.Civ.P. 26(b)(1). 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 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).

         Federal Rule of Civil Procedure 45 governs subpoenas and provides that a non-party served with a subpoena may make written objections to the subpoena before the earlier of the time specified for compliance or 14 days after the subpoena is served. Fed.R.Civ.P. 45(d)(2)(B). “The filing of the objection suspends any duty to produce the subpoenaed documents, until the party serving the subpoena procures an order compelling production” from the issuing court. Matthias Jans & Assoc., Ltd. v. Dropic, No. 01-MC-26, 2001 WL 1661473, at *1 (W.D. Mich. Apr. 9, 2001); see also Fed. R. Civ. P. 45(d)(2)(B)(i). Any order compelling production, however, “must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.” Fed.R.Civ.P. 45(d)(2)(B)(ii). This section of Rule 45 was added to protect non-parties “against significant expense resulting from involuntary assistance to the court.” Fed.R.Civ.P. 45 (Advisory Committee Notes, 1991 Amendment, Subdivision (c)).

         II. Motion to Compel Responses to Plaintiffs' First Request for Production of Documents and Deposition Testimony and Motion for Protective Order [82]

         Plaintiffs raise several issues in the instant Motion to Compel, some of which have been resolved, according to the parties' Joint Statement of Resolved and Unresolved Issues. (Docket no. 95.) The Court will now address the unresolved issues in turn.

         A. Plaintiffs' Request for Production (RFP) no. 1

         Plaintiffs' RFP no. 1 asks Defendants to:

Please produce the full and complete files for the Plaintiffs, including the following files:
a. Institutional and central office file;
b. Medical file; c. Psychiatric and/or psychological treatment file[;]
d. Grievance file;
e. Counselor file;
f. Any other file maintained at any institution where a Plaintiff was housed, for each individual Plaintiff

(Docket no. 82-2 at 4.) Plaintiffs assert that Defendants failed to produce the parole files for all Plaintiffs in response RFP no. 1. (Docket no. 82 at 14.) Plaintiffs also seek an order compelling Defendants to certify that they have made a complete production with regard to this RFP. (Id. at 15.)

         Defendants argue that parole records do not fall within the categories of information requested in RFP no. 1, and if Plaintiffs want their parole files, they need to ask for them through a new request for production so that Defendants have an opportunity to respond and/or object as necessary. (Docket no. 90 at 6.) The Joint Statement of Resolved and Unresolved Issues indicates that Defendants have agreed to produced Plaintiffs' parole files to the extent that they have not already been produced, but Defendants maintain their position that RFP no. 1 does not include a request for Plaintiffs' parole files, . (Docket no. 95 at 2-3.) Accordingly, this issue is partially resolved.

         With respect to Defendants' assertion that Plaintiffs' RFP no. 1 does not request Plaintiffs' parole files, the Court disagrees with Defendants and holds that it does. The RFP seeks Plaintiffs' full and complete files. By prefacing the enumerated list of specific files with the phrase “including the following, ” Plaintiffs created a non-exhaustive list of specific files. Therefore, the absence of “parole files” from the list does not mean that they were excluded from the RFP. The Court finds that Plaintiffs' broad request for production of “the full and complete files for the Plaintiffs” encompasses a request for parole files.

         Plaintiffs' request for an order directing Defendants to certify that they have made a complete production with respect to RFP no. 1 also remains unresolved. Defendants do not oppose this request in their Response to Plaintiffs' Motion, and the Court does not find the request to be inappropriate or particularly burdensome. Accordingly, the Court will grant Plaintiffs' Motion in this regard and order Defendants to amend their answer to Plaintiffs' RFP no. 1 to certify that all responsive files (including Plaintiffs' parole files) have been produced.

         B. Plaintiffs' RFP nos. 22 and 27

         Plaintiffs' RFP nos. 22 and 27 ask Defendants to:

22. Please produce any and all photographs and/or video camera footage documenting or showing injury to each or any of the Plaintiffs during his incarceration in any MDOC facility, including any images that are stored in digital cameras, DVRs, tasers or other electronic control devices, or stored on a removable storage device, including but not limited to flash memory cards. If responsive documents no longer exist, please so indicate and provide the retention schedule and date of destruction.

27. Please produce any and all documents, photographs, video camera footage and audio recordings of the following locations on the specified dates, including any responsive information that is stored in digital cameras, DVR[s], tasers or other electronic control devices, or stored on a removable storage device, including but not limited to flash memory cards. If any responsive photograph, video camera footage and/or audio recording no longer exists, please so indicate[] and provide the retention schedule and date of destruction: [following the text of this RFP is an enumerated list of 23 locations and dates for which the above information is sought].

(Docket no. 82-2 at 13, 14-16 (emphasis added).) In their supplemental response to RFP no. 22, Defendants stated that “[t]o the extent Defendants understand what Plaintiffs seek, any documents or tangible things that may be responsive to this request have been produced in response to Request[] No. 1, Request No. 27, or Request No. 28.” (Docket no. 82-4 at 21.) In their supplemental response to RFP no. 27, Defendants stated, in relevant part:

To the extent Defendants understand what Plaintiffs seek, and to the extent documents responsive to Request no. 27 (g), (m), (p), (v), and (w) could be located and identified, it has been produced in the enclosed CD. . . . As for Request no. 27 (a)-(f), (h)-(k), (n)-(o), or (q)-(u), upon information and belief, a search has been conducted and no documents or tangible things have been identified.

(Id. at 24.)

         Plaintiffs assert that Defendants have not answered the portions of RFP nos. 22 and 27 highlighted in bold above. (Docket no. 82 at 16.) Plaintiffs argue in this regard that (1) the materials sought are central to their claims; (2) Defendants, who have legal interests adverse to those of Plaintiffs, have exclusive control over these materials; and (3) the materials should have been preserved. (Id.) They claim that they are entitled to learn whether the materials sought through these RFPs ever existed, and, if so, the circumstances under which the materials were destroyed. (Id.)

         Defendants inform that Plaintiffs already possess the MDOC's retention schedule, as it was provided to them in the state-court proceedings. (Docket no. 90 at 8 n.4.) Defendants then proceed to argue that Plaintiffs are asking them, in essence, “to answer an interrogatory in the context of a request for production and confirm that ‘destroyed' information previously existed when Defendants do not know and cannot determine whether the information existed in the first instance.” (Id. at 8.) Defendants claim that this is an impossible task, and in the form of a rhetorical question, they assert that if they do not know whether Plaintiffs were captured on footage in the first instance, they cannot confirm either the existence of the footage or the destruction of the footage. (Id.)

         Essentially, Defendants assert that they do not know and they are unable to determine whether any other documents or materials responsive to RFP nos. 22 and 27 previously existed and have since been destroyed. The Court cannot order Defendants to produce that which they do not have, and it will therefore deny Plaintiffs' Motion to Compel in this regard. Nevertheless, because Defendants' responses to RFP nos. 22 and 27 are wholly non-responsive to the portions of Plaintiffs' RFPs at issue, the Court will order Defendants to amend their responses to clarify that the MDOC's retention schedule has already been produced and that Defendants have no knowledge of any other previously-existing responsive documents or materials, or the destruction thereof.

         C. ...


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