United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's Motion to Compel Discovery (R.
Doc. 53) filed on February 28, 2018. The deadline for filing
an opposition has expired. LR 7(f). Accordingly, the Motion
is deemed to be unopposed.
January 6, 2017, Brian Roberts (“Plaintiff”)
commenced this civil rights action under 28 U.S.C. §
1983 against Major Shannon Lessard, Major Kevin Durbin, and
Lieutenant Lindell Slater (collectively,
“Defendants”). (R. Doc. 1). Plaintiff alleges
that on December 26, 2015, while an inmate housed in Golf 2,
B Tier, at Elayn Hunt Correctional Center
(“EHCC”), he had a stroke and Defendants denied
him adequate medical treatment in deliberate indifference to
his constitutional rights.
served the discovery requests at issue on May 11, 2017. (R.
Doc. 53-4). Defendants provided responses on August 7, 2017.
(R. Doc. 53-5).
October 13, 2017, Plaintiff filed a Motion to Compel seeking
supplemental responses to Interrogatory Nos. 5 and 8, and
Request for Production Nos. 2, 10, 12, and 13. (R. Doc. 35).
Defendants opposed the motion on the basis that Plaintiff did
not participate in a proper discovery conference before
filing the Motion. (R. Doc. 41).
December 1, 2017, the Court denied the foregoing motion on
the basis that Plaintiff's counsel did not attempt to
hold a conference in “good faith” as required by
Rule 37(a)(1). (R. Doc. 45). The Court specifically provided,
however, that “Plaintiff may reassert his Motion to
Compel after the parties meet-and-confer on the substantive
discovery issues raised in the motion, and with the filing of
a Rule 37 certificate specifically setting forth (1) how the
conference was scheduled and agreed upon, (2) who
participated in the conference, (3) when the conference took
place, (4) whether the conference was conducted by phone or
in person, (5) the duration of the conference, (6) the
specific, itemized topics that were addressed at the
conference, and (7) whether any issues were resolved by the
parties. In the alternative, the Rule 37 certificate must
detail Plaintiff's counsel's good faith attempts to
confer with defense counsel and provide evidence that defense
counsel refused to confer after reasonable notice.” (R.
Doc. 45 at 4).
December 28, 2017, Plaintiff's counsel's office
counsel sent an e-mail to defense counsel requesting dates to
meet-and-confer on the discovery dispute. (R. Doc. 53-7 at
1). Plaintiff represents that no response was provided. (R.
Doc. 53 at 3).
January 31, 2018, Plaintiff's counsel's office sent
an e-mail to defense counsel requesting a discovery
conference on February 2, 2018 at 10:30 a.m. (R. Doc. 53-12
at 2). Defense counsel responded by stating that she had
“a meeting scheduled at that time and [would] be
unavailable for the remainder of the day, ” adding that
she would be “available for Monday, February 2, 2018 at
10:30 [a.m.].” (R. Doc. 53-12 at 2).
February 1, 2018, Plaintiff's counsel sent the following
e-mail to defense counsel: “You need to call either
today or earlier. We have deadlines running and cannot give
you more time. You are well aware of the deficiencies in this
case and you have done NOTHING to remedy the. [sic] Under
Rule 37, we may proceed when you fail to respond or object
timely. WE are waiting for your call.” (R. Doc. 53-9 at
February 5, 2018, Plaintiff's counsel's office sent
an e-mail to defense counsel stating that Plaintiff's
counsel was unavailable, and requested defense counsel's
availability for the remainder of the week. (R. Doc. 53-12 at
1). Plaintiff's counsel's office sent a follow-up
e-mail on the morning of February 6, 2018. (R. Doc. 53-12 at
1). Defense counsel immediately responded that she was
unavailable, adding that she had “some availability
tomorrow afternoon” if Plaintiff's counsel was
available then. (R. Doc. 53-12 at 1).
is no indication in the record that Plaintiff's counsel
further attempted to schedule a discovery conference
pertaining to the issues raised in the instant Motion over
the following three weeks.
February 28, 2018 (the day before the close of non-expert
discovery on March 1, 2018), Plaintiff filed the instant
Motion. (R. Doc. 53).
Law and Analysis
Plaintiff's Non-Compliance with Rule 37(a)(1)
37(a)(1) of the Federal Rules of Civil Procedure provides
that any motion to compel “must include a certification
that the movant has in good faith conferred or attempted to
confer with the person or party failing to make disclosure or
discovery in an effort to obtain it without court
action.” Failure to comply with the meet and confer
requirement may constitute sufficient reason to deny a motion
to compel. Shaw Grp. Inc. v. Zurich Am. Ins. Co.,
No. 12-257, 2014 WL 4373197, at *3 (M.D. La. Sept. 3, 2014);
see also Forever Green Athletic Fields, Inc. v. Babcock
Law Firm, LLC, No. 11-633 (M.D. La. July 2, 2014)
(denying motion to compel where defense counsel made a single
attempt by email to meet and confer and did not do so in a
good faith effort to resolve the dispute without court
submitted a “Rule 37 Certificate on Motion to
Compel.” (R. Doc. 53-3). The certificate lists various
irrelevant interactions between counsel that occurred prior
to the Court's denial of Plaintiff's first Motion to
Compel. (R. Doc. 53-3 at 1-2). The certificate also states
the following: “It is very clear that Defendants do not
intend to provide supplemental responses and Plaintiff has
gone above an [sic] beyond to hold a conference and receive
supplemental responses. Plaintiff has shown good faith
attempts to confer with defense counsel and has provided
evidence that defense counsel refused to confer after
reasonable notice.” (R. Doc. 53-3 at 3).
Court concludes that Plaintiff's counsel's attempts
to hold a discovery conference fall short of the requirements
of Rule 37(a)(1). The sole communication actually sent by
Plaintiff's counsel on February 1, 2018 in no way
demonstrates a good faith attempt to confer without court
resolution. Furthermore, the remaining correspondences
between Plaintiff's counsel's office and defense
counsel demonstrate a willingness on behalf of defense
counsel to schedule an appropriate time and place for a
Plaintiff has not satisfied the requirements of Rule
37(a)(1), Defendants did not oppose the instant motion.
Accordingly, the Court will resolve the motion on its merits
and deny the award of any recoverable expenses in light of
Plaintiff's non-compliance with Rule 37(a)(1).
The Discovery Requests at Issue
Interrogatory No. 5
identify each guard who was present during the discovery of
[Plaintiff's] illness on December 26, 2015, and describe
the action(s) taken by each or the role each played.
Doc. 53-4 at 4).