United States District Court, D. Connecticut
ORDER ON RENEWED MOTION TO COMPEL [DOC. #68]
HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.
Plaintiff John Hollis (hereinafter “plaintiff”) filed a motion to compel on February 15, 2016, the deadline for the close of discovery in this matter, seeking to compel discovery from defendants, the Department of Mental Health and Addiction Services for the State of Connecticut (hereinafter “DMHAS”), Linda Gagnon and Cathy McGuiness (hereinafter collectively referred to as the “defendants”). [Doc. #64]. The Court denied that motion without prejudice to renewal on the ground that the motion failed completely to meet the requirements of the Federal and Local Rules of Civil Procedure. See Doc. #67. Plaintiff has filed a renewed motion, which is now before the Court. [Doc. #68]. Defendants have filed a Memorandum in Opposition to the pending motion. [Doc. #73]. For the reasons set forth herein, the Court GRANTS, in part, plaintiff’s Renewed Motion to Compel.
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets forth the scope and limitations of permissible discovery:
Parties may obtain discovery regarding 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). “The party resisting discovery bears the burden of showing why discovery should be denied.” Cole v. Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009). Relevance “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)(citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). Plaintiff seeks to compel responses to two interrogatories, and the production of items responsive to three requests for production. The Court will address each request in turn.
I. Local Rule 37
Before turning to the merits of the plaintiff’s renewed motion, the Court notes that the renewed motion, although more detailed than the original effort, still fails to comply with the applicable Rules. In particular, Local Rule 37 requires:
(a) No motion pursuant to Rules 26 through 37, Fed.R.Civ.P. shall be filed unless counsel making the motion has conferred with opposing counsel and discussed the discovery issues between them in detail in a good faith effort to eliminate or reduce the area of controversy, and to arrive at a mutually satisfactory resolution. In the event the consultations of counsel do not fully resolve the discovery issues, counsel making a discovery motion shall file with the Court, as a part of the motion papers, an affidavit certifying that he or she has conferred with counsel for the opposing party in an effort in good faith to resolve by agreement the issues raised by the motion without the intervention of the Court, and has been unable to reach such an agreement. If some of the issues raised by the motion have been resolved by agreement, the affidavit shall specify the issues so resolved and the issues remaining unresolved.
D. Conn. L. Civ. R. 37(a). In their response to the plaintiff’s original motion to compel, defendants pointed out that plaintiff’s counsel had failed to comply with this Rule. See Doc. #65 at 1-2. In spite of this reminder, plaintiff’s counsel has again failed to comply with this Rule. No affidavit has been submitted, and the defendants contend that counsel for the plaintiff failed to meet his obligation of conferring in good faith prior to filing the original or renewed motion to compel.
This failure of compliance is significant. The requirement of an affidavit is designed to assist the Court in ensuring that (1) the parties have made a good faith effort to reach resolution without Court intervention and (2) the Court is aware of the extent to which any disputes have been resolved in whole or in part. Counsel’s failure -- again -- to comply with the Rule puts the Court in a difficult position, particularly as the original motion was filed on the deadline for the closure of discovery. The Court could again deny the motion without prejudice, but doing so would simply delay resolution of this matter. The Court could deny the motion with prejudice, but doing so would serve only to punish the plaintiff for the failings of his counsel. “Applying procedural rules to preclude relief in this case seems harsh since [plaintiff] may be being severely punished for the failure of his attorney.” U.S. ex rel. Tsirizotakis v. Lefevre, 534 F.Supp. 40, 45 (E.D.N.Y.), aff’d sub nom. Tsirizotakis v. Le Fevere, 672 F.2d 901 (2d Cir. 1981).
The Court will thus proceed to consider the motion. However, the Court will narrowly construe plaintiff’s arguments, and will accept as admitted any arguments raised by defendants that are not opposed by plaintiff. Furthermore, in the future, the Court will hold plaintiff accountable for the failings of his chosen counsel. As the Supreme Court has held, there is “no merit to the contention” that penalizing a party for the actions of counsel is unjust. Link v. Wabash R. Co., 370 U.S. 626, 634 (1962). “Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney.”
II. Defendants McGuiness and Gagnon
A. Interrogatory No. 5
As to defendants McGuiness and Gagnon, plaintiff first seeks to compel responses to Interrogatory No. 5. See Doc. #68 at 3. Defendants, in both their response to the original motion and their response to the amended motion, have indicated that the requested information has already been provided. See Doc. #65 at 3-4; Doc. #73 at 2. Counsel for the plaintiff has not responded to this assertion, and, as noted, has provided no affidavit ...