United States District Court, N.D. Texas, Dallas Division
JOHN O. MARABLE, JR., Plaintiff,
DEPARTMENT OF COMMERCE, Defendant.
MEMORANDUM OPINION AND ORDER DENYING
PLAINTIFF’S SECOND MOTION TO COMPEL
L. HORAN, UNITED STATES MAGISTRATE JUDGE.
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.
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.
filed a court-ordered response to the Second MTC.
See Dkt. Nos. 29, 30, & 31. And Marable replied.
See Dkt. No. 32.
Court DENIES the Second MTC for the following reasons.
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
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).
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).
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).”).
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).
“[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.
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)).
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, ...