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Marable v. Department of Commerce

United States District Court, N.D. Texas, Dallas Division

September 26, 2019

JOHN O. MARABLE, JR., Plaintiff,



         Plaintiff John O. Marable, Jr., a former employee of the U.S. Patent and Trademark Office (“USPTO”), brings this pro se action alleging employment discrimination and violation of the Fair Labor Standards Act. His action has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge David C. Godbey.

         Marable again moves to compel Defendant U.S. Department of Commerce to fully respond to two document requests he made under Federal Rule of Civil Procedure 34 – Requests for Production Nos. 2 and 7 [Dkt. Nos. 27 & 28] (the “Second MTC”); see Fed. R. Civ. P. 37(a)(3)(B)(iv).

         Defendant filed a court-ordered response to the Second MTC. See Dkt. Nos. 29, 30, & 31. And Marable replied. See Dkt. No. 32.

         The Court DENIES the Second MTC for the following reasons.

         Legal Standards

         The Federal Rules of Civil Procedure control the scope of a proper discovery request in the form of requests for production or inspection, interrogatories, and requests for admission.

         The party seeking discovery is required to comply with Federal Rule of Civil Procedure 26(b)(1)’s proportionality limits on discovery requests; is subject to Federal Rule of Civil Procedure 26(g)(1)’s requirement to certify “that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry: ... (B) with respect to a discovery request..., it is: (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action”; and faces Federal Rule of Civil Procedure 26(g)(3) sanctions “[i]f a certification violates this rule without substantial justification.” Fed.R.Civ.P. 26(g)(1)(B), 26(g)(3); see generally Heller v. City of Dallas, 303 F.R.D. 466, 475-77, 493-95 (N.D. Tex. 2014).

         Rule 26(b)(1) provides that, “[u]nless 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 this 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); accord Booth v. City of Dallas, 312 F.R.D. 427, 433 (N.D. Tex. 2015).

         Rule 37(a) governs motions to compel discovery responses. And Rule 37(a)(3)(B) provides, as applicable here, that a party seeking discovery may move for an order compelling production against another party when the latter has failed to produce documents requested under Rule 34. See Fed. R. Civ. P. 37(a)(3)(B)(iv); accord Crosswhite v. Lexington Ins. Co., 321 F. App’x 365, 368 (5th Cir. 2009) (“A party may move to compel production of materials that are within the scope of discovery and have been requested but not received. Fed.R.Civ.P. 37(a). Yet, a court may decline to compel, and, at its option or on motion, ‘may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden ..., including ... forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.’ Fed.R.Civ.P. 26(c)(1)(D); see also Fed. R. Civ. P. 37(a)(5)(B).”).

         For purposes of Rule 37(a), “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4). And, in response to a Rule 34(a) request, “[f]or each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Fed.R.Civ.P. 34(b)(2)(B). General or boilerplate objections are invalid, and “[o]bjections to discovery must be made with specificity, and the responding party has the obligation to explain and support its objections. Amended Federal Rule of Civil Procedure 34(b)(2) effectively codifies this requirement, at least in part: ‘An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.’” OrchestrateHR, Inc. v. Trombetta, 178 F.Supp. 3d. 476, 507 (N.D. Tex. 2016) (citing Heller, 303 F.R.D. at 483; quoting Fed.R.Civ.P. 34(b)(2)(C)), objections overruled, No. 3:13-cv-2110-KS, 2016 WL 5942223 (N.D. Tex. Oct. 13, 2016).

         In sum, “[a] party served with written discovery must fully answer each interrogatory or document request to the full extent that it is not objectionable and affirmatively explain what portion of an interrogatory or document request is objectionable and why, affirmatively explain what portion of the interrogatory or document request is not objectionable and the subject of the answer or response, and affirmatively explain whether any responsive information or documents have been withheld.” Heller, 303 F.R.D. at 485.

         Once responses, answers, and objections have been served subject to Rule 26(g), the party who has objected to a discovery request then must, in response to a Rule 37(a) motion to compel, urge and argue in support of its objection to an interrogatory or request, and, if it does not, it waives the objection. See OrchestrateHR, 178 F.Supp. 3d at 507 (citing Dolquist v. Heartland Presbytery, 221 F.R.D. 564, 568 (D. Kan. 2004); Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 662 (D. Kan. 1999)).

         For the reasons that the Court has previously explained, the amendments to Rule 26 do not alter the burdens imposed on the party resisting discovery. See Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, ...

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