United States District Court, D. South Dakota, Southern Division
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL DOCKET
VERONICA L. DUFFY United States Magistrate Judge.
case is before the court on plaintiff Rex Gard's pro
se amended complaint alleging a claim pursuant to Title
II of the Americans With Disabilities Act (ADA), 42 U.S.C.
§ 12132. See Docket No. 55. Currently pending
is his motion for an order compelling defendants to provide
certain discovery. See Docket No. 173. Defendants
oppose the motion. See Docket No. 175. This matter
has been referred to this magistrate judge for determination
pursuant to 28 U.S.C. § 636(b) and the October 16, 2014,
standing order of the Honorable Karen E. Schreier, district
Gard alleges he is an insulin-dependent diabetic.
See Docket No. 55 at 2, 4. Although he never alleges
this to be his disability for purposes of the ADA, the court
assumes it to be. Mr. Gard alleges defendants have failed and
refused to provide him proper diabetic socks and a proper
diabetic diet. Id. at 5-8, 9-12. He alleges the time
set aside for him to visit the law library twice per week is
at the same time he must report for blood sugar checks and
insulin injections, so he misses out on the full time he
could otherwise spend in the law library. Id. at 13.
He alleges his diabetes and medication require him to urinate
frequently. Id. at 12. He alleges defendants'
policies that no visits to the restroom are allowed during
prisoner counts and visitation periods are a hardship on him
because of his need for frequent urination. Id. at
Gard seeks injunctive relief requiring defendants "to
comply with the Americans with Disabilities Act" in
unspecified ways, provide law library time as necessary,
proper meals, access to restrooms during all functions and
visitation, and to provide all [unspecified] programs and
services as required by the ADA and requiring defendants to
provide the necessary staff to maintain all programs and
services that are scheduled and that plaintiff is entitled
to. Id. at 23. Mr. Gard also seeks nominal and
compensatory damages. Id. Finally, Mr. Gard seeks an
order withholding all federal funding from the South Dakota
Department of Corrections until such time as the SDDOC
complies fully with the ADA. Id. at 24. Mr. Gard
requests punitive damages as well, but such damages are not
available under the ADA. Meagley v. City of Little
Rock, 639 F.3d 384, 390 (8th Cir. 2011).
current motion to compel is the second motion Mr. Gard has
filed concerning the same discovery requests. Mr. Gard served
defendants with his discovery requests on October 26, 2016.
Although defendants requested an extension of time to respond
to these requests, Mr. Gard never informed defendants whether
he would grant an extension. He instead filed his first
motion to compel. See Docket No. 167.
court denied Mr. Gard's first motion to compel for two
procedural reasons. First, Mr. Gard did not comply with the
requirement of showing he had made a good-faith effort to
resolve the discovery dispute with defendants before filing
his motion to compel. See Docket No. 172. Second,
Mr. Gard raised new substantive objections to the
defendants' responses in his reply brief and did not file
a copy of defendants' responses. Id. Because of
this, defendants had no opportunity to respond to the
substantive objections and, without having the
defendants' responses before it, the court was unable to
evaluate whether defendants' responses were adequate.
Gard then filed the now-pending motion to compel.
See Docket No. 173. He has again failed to file a
certification that he conferred in good faith with defendants
about his substantive objections to defendants' discovery
responses. Id. He also again failed to provide the
court with a copy of defendants' responses. Id.
The latter omission was cured by defendants-they provided the
court with their responses. See Docket No. 175-1.
Rule of Civil Procedure 37 provides in pertinent part as
On notice to other parties and all affected persons, a party
may move for an order compelling disclosure or discovery. The
motion 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.
See Fed.R.Civ.P. 37(a)(1). Similarly, this
court's local rules provide as follows:
A party filing a motion concerning a discovery dispute must
file a separate certification describing the good faith
efforts of the parties to resolve the dispute.
See DSD LR 37.1. Mr. Gard has not complied with
either of these rules. He never filed a separate
certification of his good faith efforts to resolve this
matter without resort to a court motion, nor did he recite
what efforts he made in the body of his motion. See
Docket No. 173.
week after filing his motion to compel, Mr. Gard
sent a letter addressed to both the court and defendants'
counsel. See Docket No. 174. That document simply
reiterated Mr. Gard's demands for the discovery as
initially requested. Id. This letter also does not
satisfy the requirement of conferring in good faith with
opposing counsel before filing a discovery motion as
required by Rule 37 and Local Rule 37.1.
Mr. Gard's failure excusable. Although he is a lay person
and is representing himself, the court explained at length
the requirement of conferring in good faith with the other
party to try to informally resolve discovery disputes when
the court ruled on Mr. Gard's first motion to compel.
See Docket No. 172 at 3-4. Mr. Gard had this
information in his possession prior to filing the instant
motion to compel. Because Mr. Gard did not comply with this
prerequisite to filing a discovery motion, the court denies
Gard's Motion Fails on the Merits
effort to move this case along, the court also addresses the
merits of Mr. Gard's motion. Although Mr. Gard served
defendants with 21 requests for the production of documents
(see Docket No. 175-1), he outlines only 8 responses
from defendants to which he objects. See Docket No.
173 at 2-4. The court will address only those 8 objections.
scope of discovery is set forth in Federal Rule of Civil
Scope in General. Unless otherwise limited by court
order, the scope of discovery is as follows: 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 out-weighs its likely benefit.
Information within this scope of discovery need not be
admissible in evidence to be discoverable.
See Fed.R.Civ.P. 26(b) (emphasis added).
party requests discovery and the opposing party objects to
producing the discovery, the burden is on the requesting
party to first establish the relevancy of the discovery
requested. E.E.O.C. v. Woodmen of the World Life
Ins. Society, 2007 WL 1217919 at *1 (D. Neb. March 15,
2007) (citing Hofer v. Mack Trucks, Inc.,
981 F.2d 377, 380 (8th Cir. 1993)). "Mere speculation
that information might be useful will not suffice; litigants
seeking to compel discovery must describe with a reasonable
degree of specificity, the information they hope to obtain
and its importance to their case." Id. (citing
Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir.
the requesting party has made a threshold showing of
relevance, the burden shifts to the party resisting discovery
to show specific facts demonstrating that the discovery is
not relevant, or how it is overly broad, burdensome, or
oppressive. Penford Corp. v. National Union Fire Ins.
Co., 265 F.R.D. 430, 433 (N.D. Iowa 2009); St. Paul
Reinsurance Co. v. Commercial Financial Corp., 198
F.R.D. 508, 511 (N.D. Iowa 2000). The articulation of mere
conclusory objections that something is ''overly
broad, burdensome, or oppressive, '' is insufficient
to carry the resisting party's burden-that party must
make a specific showing of reasons why the relevant
discovery should not be had. Cincinnati Ins. Co. v. Fine
Home Managers, Inc., 2010 WL 2990118, *1 (E.D. Mo.
2010); Burns v. Imagine Films Entertainment, Inc.,
164 F.R.D. 589, 593 (W.D.N.Y. 1996).
courts have determined that where the discovery requests are
relevant, the fact that answering them will be burdensome and
expensive is not in itself a reason for a court's
refusing to order discovery which is otherwise appropriate.
See In re Folding Carton Antitrust Litigation, 83
F.R.D. 260, 265 (N.D. Ill. 1979) (stating that
''[b]ecause the interrogatories themselves are
relevant, the fact that answers to them will be burdensome
and expensive >is not in itself a reason for refusing to
order discovery which is otherwise appropriate'
''); Alexander v. Parsons, 75 F.R.D. 536,
539 (W.D. Mich. 1977) (stating that ''the mere fact
discovery is burdensome . . . is not a sufficient objection
to such discovery, providing the information sought is
relevant or may lead to the discovery of admissible
evidence''); and Burns, 164 F.R.D. at 593
(determining that the fact that answering interrogatories
will require the objecting party to expend considerable time,
effort, and expense consulting, reviewing, and analyzing huge
volumes of documents and information is an insufficient basis
for an objection). Moreover, if discovery requests are
relevant, the fact that they involve work, which may be time
consuming, is not sufficient to render them objectionable.
See United States v. Nysco Labs., Inc., 26 F.R.D.
159, 161-62 (E.D.N.Y. 1960)and Rogers v. Tri-State
Materials Corp., 51 F.R.D. 234, 245 (N.D. W.Va. 1970)
(stating that A[i]nterrogatories, otherwise relevant, are not
objectionable and oppressive simply on grounds [that] they
may cause the answering ...