United States District Court, E.D. Michigan, Southern Division
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,
DUSTIN ANDERSON et al., Defendants.
J. TARNOW DISTRICT JUDGE
AND ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS' MOTION TO COMPEL , GRANTING IN PART AND
DENYING IN PART PLAINTIFFS' MOTION TO COMPEL ,
GRANTING DEFENDANTS' MOTION TO COMPEL , GRANTING
PLAINTIFFS' MOTION TO COMPEL , AND DENYING
PLAINTIFFS' MOTION TO ENFORCE SUBPOENA 
K. MAJZOUB UNITED STATES MAGISTRATE JUDGE.
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. (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.
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).
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).
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).
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)).
Motion to Compel Responses to Plaintiffs' First Request
for Production of Documents and Deposition Testimony and
Motion for Protective Order 
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.
Plaintiffs' Request for Production (RFP) no. 1
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
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.)
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.
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.
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.
Plaintiffs' RFP nos. 22 and 27
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.)
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.
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.)
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