ANTHONY P. PATTI, Magistrate Judge.
This matter is before the Court for consideration of Plaintiff's motion to compel Defendant Shawn Brewer to provide documents and answer interrogatories and requests for admission (DE 80), and Defendant Brewer's response (DE 85). For the reasons that follow, Plaintiff's motion is
Plaintiff Jonathan Roden filed his complaint and application to proceed in forma pauperis on April 4, 2016 in the Western District of Michigan. (DE 1.) The Court granted his application and transferred the case to this district. (DE 4.) Plaintiff brought this lawsuit against Defendants Michelle Floyd (Deputy Warden), Richard Cady (Resident Unit Manager), and Beverly Haynes-Love (Corrections Officer), alleging that they transferred him to a more restrictive correctional facility and removed him from Jackson College classes because of grievances he filed regarding the education program and treatment of students. (DE 1.) He asserted a retaliation claim under the First and Fourteenth Amendments to the United States Constitution and sought compensatory damages. (Id., Count I.)
On March 15, 2018, the Court entered an Opinion and Order, adopting my Report and Recommendation, and granting in part and denying in part Defendants' motion for summary judgment. (DEs 52, 57.) Plaintiff's claims against Defendant Haynes-Love were dismissed with prejudice, and his First Amendment claims against Defendants Floyd and Cady are to proceed to trial. (Id.)
On September 5, 2018, the Court granted Plaintiff's unopposed motion to amend the complaint and ordered that DE 59 at Page ID 1047-1058 be treated as Plaintiff's Amended Complaint. (DE 65.) Plaintiff's Amended Complaint: (1) adds two defendants, Shawn Brewer (Warden) and James Roth (Inspector); (2) reasserts the retaliation claim under the First and Fourteenth Amendments against all Defendants; and (3) adds a second cause of action against all Defendants for "violation of the United States Constitution Eighth and Fourteenth Amendments and Michigan common law by civil conspiracy through concerted actions, manufacturing a false sexual harassment allegation." (DE 59.) Plaintiff seeks damages in the amount of $380,000. (Id.)
In the instant motion, Plaintiff asserts that Defendant Brewer has not properly responded to his discovery requests. Plaintiff takes issue with Brewer's responses to Interrogatory Nos. 1-3, Request for Admission Nos. 1, 2, 5-11, 13, 14, 20-23, and Request for Production Nos. 4-7. Plaintiff asks the Court to order Defendant to fully answer the interrogatories and requests for admission, and to provide the documents requested. (DE 80.)
Defendant Brewer oppose the motion. He asserts that Plaintiff's Interrogatory No. 1 seeks information irrelevant to his claims, that he is not in possession, custody of control of the documents sought in Request for Production Nos. 5-7, and that Request No. 5 is overly broad and unduly burdensome. He further argues that he lacks the requisite knowledge to respond to Interrogatory Nos. 2 and 3 and Request for Admission Nos. 1, 2, 5-11, 13, 14, and 20-23. (DE 85.)
The Court has broad discretion to determine the scope of discovery. Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998). The scope of discovery, which permits a party to obtain "any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit," is always subject to being "limited by court order[,]" and thus, within the sound discretion of the court. Fed. R. Civ. P. 26(b)(1). Further, discovery is more liberal than even the trial setting, as Rule 26(b) allows information that "need not be admissible in evidence" to be discoverable. Id. However, the court must also balance the "right to discovery with the need to prevent `fishing expeditions.'" Conti v. Am. Axle & Mfg., Inc., 326 F. App'x 900, 907 (6th Cir. 2009) (quoting Bush, 161 F.3d at 367). Rule 37(a) allows a party to move for an order compelling "an answer, designation, production, or inspection" if the opposing party has failed to provide a discovery response. Fed. R. Civ. P. 37(a)(3).
Plaintiff moves to compel Defendant Brewer to provide more complete answers to Interrogatory Nos. 1, 2 and 3.
Interrogatory No. 1 asks:
(DE 80 at 28.) Brewer responded: "Defendant objects that this interrogatory is irrelevant and will not lead to the discovery of admissible evidence." (Id.) In his response to Plaintiff's motion to compel, Brewer states that his "performance and policy compliance is not at issue in this case and thus not relevant to this lawsuit" and that Plaintiff does not address his objections in the motion to compel. (DE 85 at 5.) Brewer also argues that his employment records contain Personally Identifiable Information (PII), protected by Fed. R. Civ. P. 5.2(a).
Although it is true that Plaintiff does not specifically address Brewer's objections to Interrogatory No. 1, he does broadly discuss the "purpose of the requested Interrogatories and Documents," which he contends is to:
2) Ascertain Defendants' position as to the sexual harassment and love letters[,] [w]ho reported this, who investigated it, who was the subject of the harassment, where is (are) the letter(s), when did this occur, what was the disciplinary action; and 3) Illustrate the sexual harassment narrative and conspiracy through text messages and e-mails between and amongst Defendants, Grievance Coordinator and Transfer Coordinator.
(DE 80 at 2-3.)
These stated "purposes" do not justify discovery seeking previous reprimands by the MDOC of Brewer relating to his job performance and adherence to state policies, if any. Plaintiff fails to explain in his motion how the information sought in this interrogatory is relevant to his claim that Defendants retaliated against him and transferred him from JCF because of grievances he filed regarding the education program and treatment of students, or his claim that Brewer was part of a conspiracy to "manufacture a false sexual harassment allegation" against him. He has demonstrated little to no need for this information and disclosure implicates Brewer's right to privacy and could jeopardize the safety and security of the institution and Brewer. Accordingly, Plaintiff's motion to compel with regard to Interrogatory No. 1 is
Interrogatory No. 2 asks:
(DE 80 at 29.) Brewer responded: "I do not recall as this incident allegedly occurred in 2015." (Id.)
The Court notes that, in general, it cannot compel a party to provide information that he or she does not possess any more than it can compel that party to produce documents that do not exist or are not in his possession, custody or control. However, Brewer previously stated in an affidavit filed earlier in this matter that:
(DE 44-11 ¶¶ 4-5.) In light of this prior sworn testimony, Brewer is ordered to supplement or amend his response to Interrogatory No. 2, if necessary, to conform with his representations in his affidavit. To the extent he is unable to provide the information requested after a good faith investigation, he must expressly state so under oath in a verified interrogatory response.
Interrogatory No. 3 asks:
(DE 80 at 29.) Brewer stated in response: "I don't know. Please refer to the prisoner file if any disciplinary action occurred." (Id.)
While a "[l]ack of knowledge or the ability to recollect is, if true, an acceptable answer" to an interrogatory, Annabel v. Heyns, No. 2:12-cv-13590, 2014 WL 1207802, at *1 (E.D. Mich. Mar. 24, 2014), aff'd, 2018 WL 4870866 (6th Cir. Apr. 10, 2018), "[a] party answering interrogatories has an affirmative duty to furnish any and all information available to that party." 7 JAMES WM MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 33.102[1], [3] (3d ed. 2017) (emphasis added) ("The duty to provide all information available encompasses the responsibility to provide information within the party's control, even if that information is in the possession of a nonparty."). Rule 33 grants a party the option of identifying business records in lieu of answering, but requires the party to "specify[] the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could[.]" Fed. R. Civ. P. 33(d).
Brewer is ordered to amend or supplement his response by
Plaintiff seeks to compel Brewer to fully respond to Request for Production Nos. 4-7. He complains generally that Brewer's discovery responses are "incomplete, evasive and did not state that Defendant made reasonable efforts to inform himself prior to responding `I don't know.'" (DE 80 at 7.) He further claims that "[b]oth Defense Counsel and Defendant Brewer have access to the requisite emails, J-Pay Messages, discipline records, and/or information to respond." (Id. at 9.)
Request No. 4. States:
(DE 80 at 32.) Brewer responded:
(Id.) Plaintiff fails to specify how this response, agreeing to search for and produce responsive documents, is deficient. Accordingly, Plaintiff's motion to compel this response is
Request No. 5 states:
(DE 80 at 33.) Brewer responded:
(Id.) The Court agrees that a request for "any and all e-mails to or from any staff at JCF" is over broad. Plaintiff has made no showing that Brewer, as a warden, would have possession, custody or control over all emails of JCF staff. However, Brewer has sufficient possession, custody or control over emails to or from himself and JCF staff or MDOC Central Classification. Accordingly, the Court will compel Brewer to search for and produce, if found, by
Request No. 6 seeks "the love letter you claim Jonathan Roden sent to a teacher at Jackson College." (DE 80 at 33.) Brewer responds that he is "not in possession nor do I have access to this letter." (Id.) As explained above, a party cannot be compelled to produce what he does not have. Accordingly, Plaintiff's motion to compel a response to Request No. 6 is
Request No. 7 states:
(DE 80 at 33.) Brewer states in response, "I am not in possession nor do I have access to JPay messages as I am currently assigned to WHV." (Id.)
Again, Brewer cannot be compelled to produce what he does not have. He explained that he is no longer the warden at JCF and thus does not have access to any JPay messages at that facility. The Court notes that JPay was a third party vendor that provided a process for friends and family to deposit money into prisoner accounts.
Plaintiff argues that Brewer should be compelled to "fully answer" request for admission nos. 1, 2, 5-11, 13, 14, and 20-23. (DE 80 at 7-9.) He states that all of Brewer's responses "were identical in claiming `Defendant lacks requisite knowledge to formulate a belief,'" and he contends that such responses are "knowingly false and willful refusals to comply with discovery requests." (Id. at 8.) He further broadly contends that the "purpose" of his requests for admission is to "establish 1) Plaintiff did not receive any Due Process for the thank you card; 2) Plaintiff did not receive any Due Process on the possession of letter allegations; [and,] 3) There is no love letter or complaint of sexual harassment by any staff." (Id. at 3.) However, as above, Plaintiff does not more specifically address each response to each request for admission. Again, motions to compel discovery are not the appropriate vehicle for proving the falsity of a response. Nor are discovery requests a means of trying the whole case.
The Court finds that Brewer has sufficiently responded to Request for Admission Nos. 1 and 5. The Court thus
The Court finds that Brewer's responses to Request for Admission Nos. 2, 6-11, 13, 14 and 20-23 are insufficient. Brewer asserted the following identical response to each of those requests:
(See DE 80 at 35-38.) That response is not an admission, denial, or a statement "stat[ing] in detail why the answering party [could not] truthfully admit or deny it," as required by Rule 36. Fed. R. Civ. P. 36(a)(4). A party responding to a request for admission may not "hedge his bets" or simply state that he lacks information or knowledge regarding the matter in question. Rather, Rule 36 states that:
Fed. R. Civ. P. 36(a)(4) (emphases added). Here, Defendant responds both that he lacks knowledge and yet also somehow manages to deny the requests. He cannot have it both ways. If he truly lacks the information necessary, he cannot have a good faith basis for denying the requests.
Further, if a party asserts his lack of knowledge or information as a basis for failing to admit or deny a response, he must state in good faith that he has made a reasonable inquiry and that the information known or readily obtainable is insufficient to enable him to admit or deny. Fed. R. Civ. P. 36(a)(4) ("The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.") (emphasis added). "Generally, courts are in agreement that a `reasonable inquiry' is limited to review and inquiry of those persons and documents that are within the responding party's control." Lieber v. Wells Fargo Bank, N.A., No. 1:16 CV 2868, 2017 WL 3923128, at *3 (N.D. Ohio Sept. 7, 2017) (citing cases). "A `[r]easonable inquiry includes investigation and inquiry of any of defendant's officers, administrators, agents, employees, . . . who conceivably, but in realistic terms, may have information which may lead to or furnish the necessary and appropriate response. In this connection, relevant documents and regulations must be reviewed as well.'" Id. (citation omitted).
Brewer must therefore supplement his responses to Request for Admission Nos. 2, 6-11, 13, 14 and 20-23 by
In sum, the Court
Plaintiff's motion to compel is
Defendant must supplement and/or amend his responses to the following discovery requests by
