Mohamed v. Stratosphere Quality

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ALI MOHAMED,

Plaintiff,

Case No. 2:20-cv-5861

v. Chief Judge Algenon L. Marbley

Magistrate Judge Elizabeth P. Deavers

STRATOSPHERE QUALITY, LLC

Defendant.

ORDER

This matter is before the Court for consideration of Plaintiff’s Motion to Compel for

Honda Manufacturing Plant and Plaintiff’s Motion and Memorandum to Compel Responses to

Subpoena Served to Third Party for Honda: or “MAP” or “HDMA”. (ECF Nos. 47, 56.) In both

Motions, Plaintiff, proceeding without the assistance of counsel, seeks to compel the production

of surveillance tapes pursuant to a subpoena served on third-party Honda Development &

Manufacturing of America, LLC (“HDMA”). (Id.) As Plaintiff affirmatively submits, however,

HDMA already responded to the underlying subpoena and, without waiving its objection to the

subpoena, notified Plaintiff that it “searched for but located no video footage responsive to the

subpoena.” (See ECF No. 47 at PAGEID # 294; ECF No. 56-1 at PAGEID # 352 (emphasis

added).) Notwithstanding this, Plaintiff asks the Court to “overrule” HDMA’s response and

order HDMA to “recover the surveillance tapes.” (ECF No. 56 at PAGEID # 346.)

Plaintiff’s Motions are not well taken. Even assuming, arguendo, that the requested

surveillance footage was relevant, the Court cannot compel HDMA to produce something that

does not exist. Solly v. Mausser, No. 2:15-CV-956, 2017 WL 4280935, at *2 (S.D. Ohio Sept.

27, 2017) (“The Court . . . cannot compel Defendants to produce documents that do not exist.”)

(citing Miller v. Experian Info. Solutions, Inc., No. 3:13-cv-90, 2014 WL 5513477, at *2;

Tolliver v. Liberty Mut. Fire Ins. Co., No. 2:06-cv-00904, 2008 WL 4951792, at * 2 (S.D. Ohio

Nov. 17, 2008) (“A party cannot be compelled to produce documents which do not exist or

which it does not possess or control.”)). As Defendants correctly point out, “[o]rdinarily, the

representation of a party’s attorney that no documents exist is sufficient to defeat a motion to

compel absent credible evidence that the representation is inaccurate . . . . [I]f plaintiffs ‘do not

provide any evidence demonstrating that responsive documents do, in fact, exist and are being

unlawfully withheld, their motion to compel must fail.’” Cummerlander v. Patriot Preparatory

Acad., No. 2:13-CV-0329, 2014 WL 12651258, at *8 (S.D. Ohio May 16, 2014) (quoting

Alexander v. F.B.I., 194 F.R.D. 299, 301 (D.D.C. 2000)).

Here, Plaintiff affirmatively admits that HDMA has searched for, but could not find,

surveillance tapes responsive to Plaintiff’s subpoena. (ECF No. 47 at PAGEID # 292 (HDMA

“searched and [found] no footage”); ECF No. 56 at PAGEID # 344 (same).) Plaintiff

nevertheless argues, however, that the short amount of time between Plaintiff’s service of the

underlying subpoena (on July 21, 2021) and HDMA’s response (on July 27, 2021) was not

sufficient for HDMA to search for the surveillance tapes. (See id. (“[H]ow can somebody . . .

search 2019 tapes in only four days that is not logic[al] for [a] reasonable man to belie[ve].”).)

Because Plaintiff has provided nothing more than an unsupported conspiracy theory that

HDMA is improperly withholding the requested surveillance tapes, the Court cannot accept this

argument. Rather, in the absence of credible evidence to the contrary, the Court must accept

HDMA’s representation that they do not have surveillance tapes responsive to Plaintiff’s request.

Brown v. Warden Ross Corr. Inst., No. 2:10-CV-822, 2011 WL 1877706, at *5 (S.D. Ohio May

16, 2011) (“Defendants have represented that they do not have the information Plaintiff seeks.

The Court cannot require them to produce what they do not have.”); see also Cummerlander,

2014 WL 12651258, at *8 (“Plaintiffs make broad arguments alleging that [Defendant] is

participating in gamesmanship in the discovery process, but they do not provide credible

evidence that the representation by her counsel is inaccurate . . . . Consequently, plaintiffs’

motion to compel Requests No. 5, 6, and 8 will be denied.”).

For these reasons, Plaintiff’s Motion to Compel for Honda Manufacturing Plant, ECF No.

47, and Plaintiff’s Motion and Memorandum to Compel Responses to Subpoena Served to Third

Party for Honda: or “MAP” or “HDMA,” ECF No. 56, are DENIED.

IT IS SO ORDERED.

Date: February 17, 2022 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE