Scott v. Iredell Statesville Schools Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL ACTION NO. 5:18-CV-071-KDB-DCK

MARLENE B. SCOTT, )

)

Plaintiff, )

)

v. ) ORDER

)

IREDELL-STATESVILLE SCHOOLS )

BOARD OF EDUCATION, )

)

Defendant. )

)

THIS MATTER IS BEFORE THE COURT on “Defendant’s Motion To Compel

Discovery, To Compel Disclosure, And For Sanctions” (Document No. 34) filed July 19, 2019.

This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b),

and immediate review is appropriate. Having carefully considered the motion, the record, and

applicable authority, the undersigned will grant the motion.

STANDARD OF REVIEW

Rule 26 of the Federal Rules of Civil Procedure provides that:

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). The rules of discovery are to be accorded broad and liberal construction.

See Herbert v. Lando, 441 U.S. 153, 177 (1979); and Hickman v. Taylor, 329 U.S. 495, 507

(1947). However, a court may “issue an order to protect a party or person from annoyance,

embarrassment, oppression or undue burden or expense.” Fed.R.Civ.P. 26(c)(1).

Whether to grant or deny a motion to compel is generally left within a district court’s broad

discretion. See, Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th

Cir. 1995) (denial of motions to compel reviewed on appeal for abuse of discretion); Erdmann v.

Preferred Research Inc., 852 F.2d 788, 792 (4th Cir. 1988) (noting District Court’s substantial

discretion in resolving motions to compel); and LaRouche v. National Broadcasting Co., 780 F.2d

1134, 1139 (4th Cir. 1986) (same).

If the motion is granted--or if the disclosure or requested discovery

is provided after the motion was filed--the court must, after giving

an opportunity to be heard, require the party or deponent whose

conduct necessitated the motion, the party or attorney advising

that conduct, or both to pay the movant’s reasonable expenses

incurred in making the motion, including attorney’s fees.

Fed.R.Civ.P. 37(a)(5)(A) (emphasis added).

DISCUSSION

By the instant motion, Defendant requests that the Court compel Plaintiff to: fully respond

to its discovery requests; supplement initial disclosures; and pay Defendant’s attorney fees and

reasonable costs incurred in connection with the motion. (Document No. 9). Defendant contends

that its first discovery requests were served on or about December 20, 2018, and that since then

Plaintiff has continued to fail to provide complete, timely, and verified responses. (Document No.

34-1). See also Fed.R.Civ.P. 33(b)(3) (“[e]ach interrogatory must, to the extent it is not objected

to, be answered separately and fully in writing under oath”).

Defendant notes that during Plaintiff’s deposition she “admitted that many of her responses

to the Board’s First Discovery Responses were incorrect or incomplete.” (Document No. 34-1, p.

5) (citing Document No. 34-5). Defendant argues that due to Plaintiff’s repeated disregard of her

discovery obligations under the Federal Rules, Defendant “is without information vital to its

defense and has been forced to expend considerable attorneys’ fees in seeking compliance from

Plaintiff.” (Document No. 34-1, p. 18).

“Plaintiff’s Response…” acknowledges that “some of her initial responses were not

complete,” “that her responses have not been timely,” and that her “responses may not have been

entirely complete or timely.” (Document No. 37, pp. 2, 4, 6). However, Plaintiff asserts that she

has repeatedly supplemented her responses, that she has “substantially complied” with discovery

requests, and denies that she has ignored Defendant’s requests or otherwise acted in bad faith.

(Document No. 37).

Plaintiff states that she has “fully responded to Defendant’s Request for Admissions” but

does not assert that the has fully responded to Defendant’s interrogatories or requests for

production of documents. (Document No. 37, p. 1). Moreover, Plaintiff does not seem to contest

that her interrogatory responses have not been provided under oath. Id.

“Defendant’s Reply…” asserts that “Plaintiff and Plaintiff’s counsel have committed

repeated and ongoing violation of their discovery obligations,” and have “not complied with a

single discovery deadline in this matter.” (Document No. 38, p. 1). Defendant lists multiple

discovery requests that are allegedly still deficient. (Document No. 38, pp. 3-5). As of August 8,

2019, Defendant contends it is still without information to which it is entitled. (Document No. 38,

p. 7).

At this time, it is unclear to the undersigned whether the outstanding discovery has been

provided. As noted above, Plaintiff further supplemented her discovery responses on August 2,

2019 – after the motion to compel was filed and after the discovery deadline – but as of the filing

of the reply brief, Defendant contends it still lacked significant information. (Document No. 37,

p. 2; Document No. 38; Document No. 56-22). Even if discovery has been fully completed, it

was provided only after multiple requests by Defendant culminating in the instant motion to

compel.

The undersigned also notes that Plaintiff does not seem to suggest that Defendant has

sought information that is privileged, irrelevant, or is not proportional to the needs of the case.

(Document No. 37). Rather, Plaintiff contends she has tried to provide responsive information,

while acknowledging that her efforts have been neither timely nor complete. Id.

Under these circumstances, the undersigned finds that Defendant’s motion should be

granted. In addition, because Plaintiff has failed to show any exceptions that would deter the Court

from ordering the payment of Defendant’s reasonable expense and attorney fees incurred in

making this motion to compel, the undersigned finds that Plaintiff must reimburse Defendant’s

counsel for the reasonable expenses and attorney fees associated with preparing and filing the

motion to compel and supporting documents (Document No. 34) and the reply brief in support of

the instant motion (Document No. 38). See Fed.R.Civ.P. 37(a)(5)(A)(i)-(iii).

IT IS, THEREFORE, ORDERED that “Defendant’s Motion To Compel Discovery, To

Compel Disclosure, And For Sanctions” (Document No. 34) is GRANTED. To the extent she has

not already done so, Plaintiff shall provide complete and verified discovery responses on or before

October 15, 2019.

IT IS FURTHER ORDERED that Plaintiff’s counsel shall confer with Defendant’s

counsel by telephone or in person, on or before October 22, 2019, in a good faith attempt to

arrange Plaintiff’s payment of reasonable expenses and attorney’s fees as directed herein. If

counsel for the parties are unable to resolve the issue of expenses and fees without further Court

intervention, Defendant’s counsel may file a motion with appropriate supporting documentation

that seeks such relief on or before October 25, 2019.

IT IS FURTHER ORDERED that if Plaintiff fails to fulfill her remaining discovery

obligations, Defendant may seek additional sanctions.

SO ORDERED.

Signed: September 30, 2019

I ont

David C. Keesler 28

United States Magistrate Judge geet