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Smith v. Simmons

May 12, 2009

THOMAS N. SMITH, PLAINTIFF,
v.
DARRIN SIMMONS, INDIVIDUALLY AND D.B.A CLEAN AIR PRODUCTS, AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REGARDING DEFENDANT DARRIN SIMMONS'S MOTION TO COMPEL PLAINTIFF'S RESPONSES TO SPECIAL INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS, TO PRODUCE DOCUMENTS AND AWARD OF SANCTIONS

(Document 106)

INTRODUCTION

Pending before the Court is Defendant Darrin Simmons's Motion to Compel Responses to Special Interrogatories and Request for Production of Documents, To Produce Documents and Award of Sanctions filed March 23, 2009. On May 6, 2009, Plaintiff responded to the motion. On May 8, 2009, Defendant filed a reply. The Court has considered the pleadings and determined that these matters are suitable for decision without oral argument pursuant to Local Rule 78-230(h). The hearing scheduled for May 15, 2009, has been be vacated, and the parties need not appear. Upon consideration of all the pleadings, this Court will find that Defendant's motion to compel responses to the special interrogatories and request for production of documents, to produce documents and award sanctions, should be GRANTED.

RELEVANT PROCEDURAL BACKGROUND*fn1

Plaintiff filed his complaint on September 19, 2005. With specific regard to discovery matters, Defendant filed a Motion to Compel Plaintiff's Initial Disclosures, as well as a Motion to Compel Plaintiff's Response to Request for Production of Documents, each seeking an award of sanctions, on June 28, 2007. On July 18, 2007, Magistrate Goldner granted the motions and awarded sanctions against Plaintiff.

On August 28, 2007, Defendant filed a Motion for Sanctions and Motion for Evidence and Issue Preclusion for Plaintiff's failure to respond to the Court's July 18, 2007, order. Plaintiff opposed the motion on September 19, 2007, and Defendant replied to the opposition on September 24, 2007. The Court's docket reflects a hearing was held October 1, 2007. Plaintiff was ordered to submit passport information and an affidavit regarding documents; Defendant withdrew his motion for sanctions. On October 26, 2007, Judge Wanger signed an Order After Hearing on the motion.*fn2

On March 23, 2009, Defendant filed the instant motion to compel. Plaintiff filed a response and declaration of counsel on May 6, 2009. Defendant replied on May 8, 2009.

DISCUSSION

The purpose of discovery is to make trial "less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent possible." United States v. Procter & Gamble, 356 U.S. 677, 683 (1958). Discovery will also serve to narrow and clarify the issues in dispute. Hickman v. Taylor, 329 U.S. 495, 501 (1947). F. R. Civ. P. 26(b) establishes the scope of discovery and states in pertinent part: Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

"The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections." Oakes v. Halvorsen Marine Ltd., 179 F.R.D 281, 283 (C.D. Cal. 1998); Nestle Foods Corp. v. Aetna Casualty & Surety Co., 135 F.R.D. 101, 104 (D. N.J. 1990).

Here, Defendant served Plaintiff with Special Interrogatories, Set One, and a Request for Production of Documents, Set Two, on December 3, 2008. (See Herr Decl., ¶¶ 3-4 & Exs. A & B.) Plaintiff has failed to respond to date. Moreover, on May 6, 2009, Plaintiff indicated he "does not oppose the motion to compel the discovery responses." (Doc. 124.) Counsel for Plaintiff filed a declaration wherein he stated his "office prepared draft responses and sent them to" Plaintiff for approval on March 23, 2009, yet Plaintiff "travels extensively" and thus it is difficult to communicate with him. (Doc. 125.)*fn3

Discovery Sanctions

A. Special ...


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