United States District Court, D. New Mexico
ORDER DENYING PLAINTIFFS' MOTION TO COMPEL [Doc.
LOURDES A. MARTÍNEZ UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on
Plaintiffs' Motion to Compel (Doc.
46), filed on December 13, 2016. Defendant filed a
response to the motion on January 11, 2017 [Doc.
58], and Plaintiffs filed a reply on January 25, 2017
[Doc. 64]. Having considered the motion, response,
reply, record of the case, and relevant law, the Court finds
that the motion is not well-taken and should be
their motion, Plaintiffs ask the Court to enter an order
compelling Defendant to produce all outstanding initial
disclosures. See [Doc. 46 at 1]. Plaintiffs
state that they asked Defendant to supplement his initial
disclosures by sending him letters dated November 2, 2016
(see Id. at 5-7) and November 28, 2016 (see
Id. at 8), and that, on December 7, 2016, Defendant
served a supplemental disclosure of a recorded interview of
Plaintiff Bryce Hall, but that “[n]one of the requested
documents identified in the November 2 and 28, 2016 letters
were served on Plaintiff” (id. at 2).
response to the motion, Defendant contends that
Plaintiffs' motion “is the latest in a series of
attempts to use the discovery process to harass Defendant and
other state agencies across two different cases, ” and
that “[r]ather than use the limited number of discovery
requests permitted, Plaintiffs now seek to ‘compel'
initial disclosures.” [Doc. 58 at 1-2].
Defendant further contends that Plaintiffs' November 2,
2016 letter asks for recordings that are not in the custody
or control of Defendant, and asks for materials that are not
related to Defendant's defenses. Id. at 2.
Defendant, therefore, argues that Plaintiff's motion to
compel asks for supplemental information that is outside of
the scope of what must be produced in a party's initial
disclosures. See Id. at 3-5. In addition, Defendant
asks the Court to award him his costs and fees incurred in
responding to Plaintiffs' motion to compel pursuant to
Rule 37. See Id. at 5-6. In support of this request,
Defendant contends that the motion is without merit, and
states that Plaintiffs failed to contact Defendant regarding
the motion prior to filing it. Id. at 6.
reply, Plaintiffs state that “[t]he taped conversations
between Plaintiffs and Defendant go to the issue of consent
to enter the property, ” and that Defendant's
“initial disclosures reference documentation that has
not been disclosed to Plaintiffs, including missing and
unaccounted for audio tapes, goes directly to the issue of
consent to enter the property in violation of Plaintiffs'
Fourth and Fourteenth Amendment rights and is directly
related to the Defendant's defense of qualified
immunity.” [Doc. 64 at 2]. Plaintiffs further
state that they “have shown in their Motion to Compel
that there is a direct connection between the information
they seek in discovery and the validity of Defendant's
qualified immunity assertion.” Id.
Court finds that Plaintiffs' motion is without merit for
two reasons. First, Plaintiffs failed to comply with Local
Rule 7.4(a) by failing to determine whether the motion is
opposed prior to filing it. While Plaintiffs attach to their
motion an exhibit titled “Certificate of Good Faith
Attempts to Resolve Discovery Dispute, ” Plaintiffs
merely reference the November 2, 2016 and November 28, 2016
letters they sent to Defendant, and then state: “As of
the present date, the Plaintiffs have not yet received the
requested supplemental initial disclosures from the
Defendant.” [Doc. 46 at 3]. This does not
constitute a “good-faith request for concurrence”
because it did not provide Defendant an opportunity to
discuss the motion to compel with Plaintiffs prior to
Plaintiffs filing it, and the motion could be summarily
denied for this reason alone. D.N.M. LR-Civ. 7.1(a).
Plaintiffs have not established that Defendant has failed to
comply with the initial disclosure requirement of Rule
26(a)(1)(ii). Pursuant to this rule, a party must provide to
other parties information “that the disclosing party
has in its possession, custody, or control and may use to
support its claims or defenses, unless the use would be
solely for impeachment.” Fed.R.Civ.P. 26(a)(1)(ii).
Defendant has stated that the information sought by
Plaintiffs is not in his custody or control and/or is not
related to his defenses. See [Doc. 58 at
2]. Plaintiffs do not refute these statements by Defendant
and, instead, merely state that the requested information is
relevant to the issues in this case. See [Doc.
64]. A motion to compel a party to supplement its
initial disclosures is not the appropriate way to obtain
discovery that is not in the custody or control of that
party, or that the party does not intend to use to support
its claims or defenses. Moreover, to the extent Plaintiffs
seek this discovery in order to oppose Defendant's motion
for summary judgment, the proper way to seek such discovery
is set forth in Rule 56(d), and Plaintiffs have already made
this request in their response to Defendant's motion for
summary judgment. See [Doc. 61]. The Court,
therefore, finds that Plaintiffs motion to compel fails to
show that Defendant has not complied with his obligations for
initial disclosures under Rule 26(a).
37(a)(5)(B) provides that, if a court denies a motion to
compel, the court “must, after giving an opportunity to
be heard, require the movant, the attorney filing the motion,
or both to pay the party or deponent who opposed the motion
its reasonable expenses incurred in opposing the motion,
including attorney's fees.” Furthermore, “the
court must not order this payment if the motion was
substantially justified or other circumstances make an award
of expenses unjust.” Id. Here, Plaintiffs had
an opportunity to respond to Defendant's request for
costs and fees in their reply to Defendant's response,
but did not do so. The Court finds that Plaintiffs'
motion is not substantially justified and that no other
circumstances make an award of expenses unjust. Moreover, the
Court finds that Plaintiffs' counsel failed to comply
with the Court's Local Rules regarding making a
good-faith request for concurrence. Therefore, the Court will
require Plaintiffs' counsel to pay Defendant his
reasonable costs and fees incurred in filing his response to
the motion to compel, and counsel for Plaintiffs may not
charge their clients for this expense.
IS THEREFORE ORDERED that, for the reasons stated
above, Plaintiffs' Motion to Compel
(Doc. 46) is DENIED.
IS FURTHER ORDERED that Defendant's counsel may
submit documentation of reasonable attorney's fees and
costs incurred in connection with this motion. Plaintiffs may
respond to the amount of requested attorney's fees and
costs within fourteen (14) days of their