Foster v. Litman

U.S. District Court, District of Minnesota January 3, 2020

Trial Court Opinion

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


BRADLEY W. FOSTER,                     Case No. 19-cv-260 (JNE/ECW)      

     Plaintiff,                                                          

v.                                          ORDER                        

ROSS LITMAN and                                                          
MARK PHINNEY,                                                            

     Defendants.                                                         


    This matter is before the Court on Plaintiff Bradley W. Foster’s (“Foster” or 
“Plaintiff”) Motion to Request Court to Compel Defendants’ Compliance with Discovery 
Under the Fed. R. Civ. P. 26(b)(1) (Dkt. 36); Plaintiff’s Motion to Request Court Hold 
Hearing and/or for Expanded Discovery Under the Fed. R. Civ. P., Rules 26(b)(2)(A) and 
33(a)(1) (Dkt. 39); and Plaintiff’s Motion Request for Modification of the Scheduling 
Order to Extend Discovery Time and Request for Hearing (Dkt. 58).         
   I.   MOTION TO COMPEL DEFENDANTS’ COMPLIANCE WITH                     
                        DISCOVERY (DKT. 36)                              

A.   Factual and Procedural Background                                    
    The present action relates to Plaintiff’s claims under

42 U.S.C. § 1983

for
Defendants’ alleged violations of his Constitutional rights and various state law claims
related to injuries he is alleged to have sustained as part of his transport in a vehicle he
describes as a “Paddy-Wagon” (hereinafter “vehicle”) while restrained by a “Black Box
Restraint System” (“BRS”) on August 3, 2015. (See Dkt. 1.)
Plaintiff initially brought a Motion for Accommodation, seeking an Order from
this Court to require Defendants to serve his responsive documents related to discovery in

electronic format, including that all photographs be sent in Joint Photographic Experts
Group (“JPEG”) format or other comparable format. (Dkt. 14.) Based on the
Defendants’ agreement to produce any discovery photographs in JPEG format or a
comparable electronic format and any other discovery documents in Portable Document
Format (“PDF”) or a comparable electronic format, the Court denied the Motion for
Accommodation as moot. (Dkts. 20, 34.)

Plaintiff appears to have served two documents requests on Defendants. The first
request (“First Request”) is as follows:
Plaintiff, acting under Rule 34, hereby requests Defendants’ make available:
paper documents, records, emails, invoices and related data to Plaintiff. This
request is within the scope of Rule 26(b).

(Dkt. 37 at 2.) Defendants objected to this request on the following bases: that the
Request does not describe with reasonable particularity each item or category of items to
be produced, as required under Fed. R. Civ. P. 34; to the extent that it seeks documents
covered by a privilege; because it seeks information not relevant to the claims and
defenses in the present case; and because the information sought is not proportional to
needs in this case. (Id. at 1-2.) The second disputed request (“Second Request”) is as
follows:
Plaintiff requires, with regard to Defendant vehicle No. 579, in Defendants
lawful possession at all times relevant to this case, to produce the following
items in the Defendant’s possession, custody, or control: any and all
documents or electronically stored information-including, writings, vehicle
order sheet, invoices, logs, accident reports, maintenance logs and/or records,
specialized equipment order sheets and invoices, drawings, graphs, charts,
photographs, sound recordings, images, and any other data or data
compilations—stored in any medium from which information can be
obtained either directly into a reasonably usable form; or any designated
tangible things; or permit inspection of vehicle number 579 possessed or
controlled by the Defendants, so Plaintiff may inspect, measure, photograph,
test, or inspect the vehicle and/or the designed operation of equipment on the
vehicle.

(Id. at 3.) Defendants represented that they had produced all documents concerning the
transport at issue, as well as photographs of the interior and exterior of the transport
vehicle at issue. (Id. at 4.) Otherwise, Defendants objected to this request to the extent
that it seeks documents covered by a privilege, because it seeks information not relevant
to the claims and defenses in the present case, and because the information sought is not
proportional to the needs of this case. (Id. at 3-4.)
It appears that Defendants have produced approximately a total of 35 pages of
documents (SLC 1-SLC 35). (Dkt. 37 at 1; Dkt. 44-4.) These documents are comprised
of a Court Order related to Plaintiff’s transport, two pages of what appear to be the
transport logs, a letter from Plaintiff to the St. Louis County Sherriff’s Office asking for
the name and badge number of the deputy in charge of Plaintiff’s transport along with
any reports filed concerning the transport, a responsive letter from the St. Louis County
Sherriff’s Office enclosing the transport log, providing the name and badge number, and
stating no reports were filed, and 30 pages of pictures of the exterior and interior of a
transport vehicle. (Dkt. 44-4.)
In addition, Defendants objected to producing all graphic based information on
Portable Network Graphic format as opposed to the JPEG format that Plaintiff initially
sought and received via agreement from Defendants as the result of motion practice.
(Dkt. 37 at 4.)

B. Legal Standard
Rule 26 of the Federal Rules of Civil Procedure governs the scope of discovery:
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 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). While Rule 26 contemplates a liberal scope of discovery, this
Court “possess[es] considerable discretion in determining the need for, and form of,
discovery. . . .” In re Nat’l Hockey League Players’ Concussion Injury Litig.,

120 F. Supp. 3d 942, 949

 (D. Minn. 2015) (citations omitted).                    
    Further, not only must information sought in discovery be relevant, it must also be 
“proportional to the needs of the case.”  Fed. R. Civ. P. 26(b)(1).  “In determining 
proportionality, courts consider numerous factors, including ‘the importance of the issues 
at stake in the action, the amount in controversy, the parties’ relative access to the 
relevant information, the parties’ resources, and importance of the discovery in resolving 
the issues, and whether the burden or expense of the proposed discovery outweighs its 
likely benefit.’”  Beseke v. Equifax Info. Servs., LLC, No. 17-CV-4971-DWF-KMM,

2018 WL 6040016

, at *3 (D. Minn. Oct. 18, 2018). To this end, a court upon a motion or
on its own “must” limit discovery, when the discovery is “unreasonably cumulative or
duplicative, or can be obtained from some other source that is more convenient, less
burdensome, or less expensive,” if “the party seeking discovery has had ample

opportunity to obtain the information by discovery in the action” or if the discovery is
outside of the scope of Rule 26(b)(1). See Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii).
C. Analysis
Defendants assert that the Motion to Compel should be denied because Plaintiff
failed to meet and confer prior to bringing the present motion. Local Rule 37.1 provides
in relevant part that a motion to compel must comply with the following:

(a) any certification required by a federal or local rule that the movant has in
good faith conferred or attempted to confer with the party failing to act;

(b) a specification of the disclosure or discovery in dispute;

(c) the text (which may appear in an exhibit to which the motion or
memorandum refers) of any interrogatory, request, question, or notice in
dispute, together with each answer, response, or objection to any such
interrogatory, request, question, or notice;

(d) a concise statement of why the disclosure, answer, response, production,
or objection is insufficient, evasive, incomplete, or otherwise improper;

. . . and

(f) the remedy sought, together with an argument for why the requested
remedy is authorized and justified.

D. Minn. LR 37.1. As far as this Court can discern, Plaintiff served two requests and
Defendants only appear to have produced documents pertinent to the more specific
Second Request. (See Dkt. 44-3.) It is unclear from Plaintiff’s motion if he is moving to
compel information as to the First Request.1 Even if Plaintiff is also moving to compel
documents responsive to the First Request, he has not engaged in the required meet-and-

confer and has not provided the Court with any indication as to what documents he was
expecting from Defendants. Plaintiff stated that “[r]ather than make legal arguments
about the unreasonable and time consuming objections of the Defendants, Plaintiff asks
the Court to review the included documents in question; included herein by Affidavit for
the Court’s review; and then draw it’s [sic] own conclusions.” (Dkt. 36 at 3.) The Court
will not come up with arguments on behalf of Plaintiff. If Plaintiff has issues with

respect to Defendants’ response to the First Request, he needs to at least attempt to
engage in a good-faith meet-and-confer with Defendants, via letter, to set forth what
documents he is seeking by way of the First Request,2 and if there is no agreement, then
bring a motion to compel that complies with Local Rule 37.1 as set forth above.3 See
Bunch v. Univ. of Ark. Bd. of Trustees,

863 F.3d 1062, 1067

 (8th Cir. 2017) (“Bunch’s 

status as a pro se litigant did not excuse her from following the local rules.”) (citing 
Bennett v. Dr Pepper/Seven Up, Inc.,

295 F.3d 805, 808

(8th Cir. 2002)). That said, the

1 The Court notes that Defendants treated them as two separate requests. (Dkt. 37.)

2 Plaintiff claims that he engaged in a telephonic meet-and-confer with Defendants
in May 2019, where Defendants allegedly stated they were not interested in discussing
discovery. (Dkt. 52 at 1-3.) However, even if this is true, this telephonic conference is
an inadequate meet-and-confer given that it occurred before the parties even initiated
discovery and before the Defendants responded to his Requests.

3 Plaintiff has access to the Local Rules as is evidenced by the fact that he relies
upon them in at least one his motions before the Court. (See Dkt. 55.)
Court expects Defendants to also engage in good faith as it relates to a meet-and-confer
with respect to the First Request. The Court is concerned that Defendants have only

produced approximately 35 pages of documents in this case, consisting primarily of
pictures of the vehicle at issue, especially considering that the main thrust of the claims in
the Complaint appear to involve the alleged injury to Plaintiff due to the use of the BRS.
With respect to the Second Request, Defendants assert that it has the following
information with respect to the vehicle and transports: the title of the vehicle; the
owner’s manual with respect to the vehicle; records concerning St. Louis County’s

purchase of the vehicle in 2014; records concerning St. Louis County’s maintenance of
the vehicle; and transport logs for “all or nearly all transports completed” since the
vehicle was purchased. Defendants contend that this information is not relevant to the
claims at issue in this case and not proportional to the needs of the case.4
Here, the claims related to the vehicle at issue focus on allegations that it was a

marked vehicle, with no cushioned seats, with a slippery metal bench making it difficult
for Plaintiff to prevent himself from falling, had no seatbelts or other safety features, and
had no windows, or adequate light. (See Dkt. 1 ¶¶ 15, 36.) The vehicle order sheet,
invoices, logs for transports other than the transport at issue, accident reports,
maintenance logs and/or records, specialized equipment order sheets, and invoices

4 Defendants also argue that the motion to compel should be denied without
prejudice because Plaintiff failed to meet and confer prior to bringing the motion. While
the Court warns Plaintiff that future motions to compel should not be brought prior to at
least attempting to meet and confer and the failure to do so may well result in denial of
the motion, the Court will not deny this motion on this basis, as it does not appear that the
parties would be able to work out their differences with respect to the dispute at issue.
requested have no bearing on this case except to the extent that they relate to the safety
features (such as seat belts) or lack thereof. As such, to the extent that Defendants have

any documentation related to the safety features of the vehicle at issue (which appears to
be Vehicle 579), they should be produced to Plaintiff. In addition, Plaintiff is entitled to
any accident records related to Vehicle 579. To the extent that Defendants do not have
any such documents they shall notify Plaintiff of the same in writing. Otherwise, the
information sought by the Second Request is not reasonably likely to lead to the
discovery of relevant evidence and is not proportional to the needs of the case, especially

in light of the extensive photographic evidence of the exterior and interior of Vehicle 579
produced by Defendants.
As to the format of the photographic evidence, Plaintiff has not set forth why he
needs Portable Network Graphic format to view the photographs that were produced, as
opposed to the JPEG format that he initially sought and received via agreement from

Defendants as the result of motion practice. As such, the Court denies this request.
II. MOTION TO REQUEST COURT HOLD HEARING AND/OR FOR
EXPANDED DISCOVERY (DKT. 39)
Plaintiff served one set of Interrogatories comprised of 26 interrogatories on St.
Louis County Sheriff Ross Litman, and another set of Interrogatories comprised of 18
interrogatories on former St. Louis County Deputy Sheriff Mark Phinney. (Dkts. 47-2,
47-3.) Defendants responded by refusing to answer any of the interrogatories on the
ground that Plaintiff’s 44 total interrogatories exceeded the maximum number of

interrogatories allowed by this Court’s April 25, 2019 Pretrial Scheduling Order. (Dkt.
47-4.) Defendants invited Plaintiff to pick 25 of the 44 interrogatories for them to
answer. (Id.) Plaintiff brought the present motion seeking an order for unlimited

interrogatories and requests for admissions on the following basis:
Because Plaintiff is institutionalized, not physically able to move from place
to place; and because depositions will be exceedingly difficult in this case,
Plaintiff requests expanded and unlimited ability to inquire through written
“Interrogatory” sets; and unlimited ability to [“]Requests for Admissions” in
this matter. Without such Order, and as demonstrated by opposing counsel's
objections, Plaintiff will be prejudiced if he is not allowed to conduct a
thorough, liberal, and vigorous discovery regime before and after depositions
in preparation for trial in this matter.

(Dkt. 39.)
Defendants argue that the motion should be denied because Plaintiff failed to meet
and confer prior to bringing the motion5 and because he has not shown the requisite good
cause to amend the pretrial scheduling order to allow for unlimited interrogatories and
requests for admissions. (Dkt. 46.)
The Court set forth the following discovery limitations in this case:
1. No more than a total of 25 interrogatories, counted in accordance with
Rule 33(a), shall be served by each side.

2. No Rule 35 Medical Examinations are permitted in this matter without
first obtaining leave of the Court.

3. Pursuant to the Court’s authority under Federal Rule of Civil Procedure
26 to limit discovery, no depositions are permitted in this matter without
first obtaining leave of the Court.

5 The Court will not deny the motion on this basis as it does not appear that the
parties would able to work out their differences with respect to the dispute at issue.
Again, Plaintiff is cautioned that the Court may in the future deny motions to compel if
he does not make a good-faith effort to meet and confer with Defendants.
(Dkt. 13 at 2.)
Plaintiff asserts that he “honestly believed” that each set of interrogatories equaled

one interrogatory and says he would have objected to the pretrial scheduling order “had
he known it restricted him to 25 total inquiries.” (Dkt. 53 at 2.) In a proposed amended
scheduling order, Plaintiff seeks 50 interrogatories per Defendant. (Dkt. 59.)
“In practical terms, a party seeking leave to take more depositions, or to serve
more Interrogatories, than are contemplated by the Federal Rules or by the Court’s
Scheduling Order, must make a particularized showing of why the discovery is

necessary.” Archer Daniels Midland Co. v. Aon Risk Servs., Inc. of Minn.,

187 F.R.D. 578, 586

 (D. Minn. 1999); see also Bell v. Fowler,

99 F.3d 262

, 271 (8th Cir. 1996)
(where plaintiff “presented no good reason why additional depositions were necessary . . .
[t]he district court committed no abuse of discretion” in denying leave to do so). Here,
the Court has issued a Report and Recommendation recommending that Plaintiff’s claims

against Sheriff Litman be dismissed on several grounds (Dkt. 62), which, to the extent
U.S. District Judge Joan N. Ericksen adopts that recommendation, means that Sherriff
Litman will not be required to answer the interrogatories served on him. Plaintiff has
only served 18 interrogatories on Deputy Phinney to date. (Dkt. 37 at 18-28.) Moreover,
there are no set limitations on requests for production of documents and requests for

admissions. At this point, it appears that Plaintiff has adequate discovery to prosecute his
claims, and he has not shown why he needs more interrogatories than the 25 permitted
and the 7 remaining.6 The Court therefore denies without prejudice Plaintiff’s request for
additional interrogatories.

III. PLAINTIFF’S REQUEST FOR MODIFICATION OF THE SCHEDULING
ORDER (DKT. 58)
Plaintiff seeks an additional 180-day discovery period due to “deficits caused by
the defendants’ willful actions to thwart the litigation process by not complying with
discovery requests.” (Dkt. 58 at 2.) Defendants do not oppose an extension.
On November 1, 2019, the Court issued an Order stating that it would be issuing a
new scheduling order after the Court ruled on Defendants’ Motion for Partial Judgment
on the Pleadings. The Court finds there is good cause to provide Plaintiff with additional
time to conduct discovery based on the delays caused by motion practice, which bear on

the scope of discovery in this action, and will issue a new scheduling order in view of that
finding.
IV. ORDER
Based on the files, records, and proceedings herein,
IT IS ORDERED THAT:
1. Plaintiff’s Motion to Request to Compel Defendants’ Compliance with
Discovery Under the Fed. R. Civ. P. 26(b)(1) (Dkt. 36) is GRANTED in part and

DENIED in part. Defendants will be required to produce documentation related to the

6 Plaintiff’s asserted misunderstanding as to the meaning of the limitation “No more
than a total of 25 interrogatories, counted in accordance with Rule 33(a), shall be served
by each side” does not demonstrate that he needs more than 25 interrogatories,
particularly in view of the Court’s recommendation that the claims against Sherriff
Litman be dismissed. Plaintiff may, however, withdraw the 18 interrogatories served on
Deputy Phinney and serve a new set, not to exceed 25 interrogatories, instead.
safety features of Vehicle 579 and any accident records related to Vehicle 579. The
Motion is otherwise denied.

2. Plaintiff’s Motion to Request Court Hold Hearing and/or for Expanded
Discovery Under the Fed. R. Civ. P., Rules 26(b)(2)(A) and 33(a)(1) (Dkt. 39) is
DENIED without prejudice.
3. Plaintiff’s Motion Request for Modification of the Scheduling Order to
Extend Discovery Time and Request for Hearing (Dkt. 58) is GRANTED insofar as the
Court will issue a separate amended pretrial scheduling order extending the time for fact

discovery.
DATED: January 3, 2020 s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge