Moreland v. Board of County Commissioners of Mayes County

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

GARY SCOTT MORELAND; REBECCA )

JANE NICHOLS; and REBECCA JANE )

NICHOLS on behalf of and as next friend )

of J.W.S., )

)

Plaintiffs, )

)

v. )

Case No. 20-cv-00366-WPJ-SH

)

BOARD OF COUNTY )

COMMISSIONERS OF THE COUNTY )

OF MAYES; CITY OF CHOTEAU; )

BRETT ALAN MULL; and KEISHA )

OBERG, )

)

Defendants. )

OPINION AND ORDER

Before the Court is the motion of Defendant Keisha Oberg (“Oberg”) to compel all

three Plaintiffs to respond to her requests for production and for Plaintiff Gary Scott

Moreland (“Moreland”) to answer her interrogatories. Plaintiffs assert that Oberg’s

motion is moot, because—after the motion was filed—Moreland alone provided his

discovery responses. Moreland’s responses cannot moot the motion as to the other

Plaintiffs, and it does not moot the entirety of Oberg’s motion as to him. Plaintiffs have

provided no basis justifying their failure to respond timely to discovery, and Oberg’s

motion will be granted.

Background

Plaintiffs filed this lawsuit in July 2020, asserting damages relating to a search of

their residence in 2017. According to Plaintiffs, members of law enforcement destroyed

their property and removed virtually every item from their residence and outbuildings.

(ECF No. 2-2 ¶ 12.) Plaintiffs also claim that the minor J.W.S. was traumatized and

caused unnecessary stress. (Id. ¶¶ 15, 17.) Plaintiffs assert they suffered over $54,000 in

property damage and that they are entitled to additional actual and punitive damages.

(Id. ¶ 18 & at 6.)

On August 16, 2022, Oberg electronically served interrogatories and requests for

production on each of the Plaintiffs—Moreland, Plaintiff Rebecca Jane Nichols

(“Nichols”), and Plaintiff Rebecca Jane Nichols on behalf of minor J.W.S. (“J.W.S.”).

(ECF No. 38-1.) After some back and forth on the lack of any response (ECF Nos. 38-2—

38-4), Plaintiffs agreed to respond to the discovery requests by November 29, 2022 (ECF

No. 38-5). This deadline passed without any response, and Oberg offered a new response

date of December 14, 2022 (ECF No. 38-8), which Plaintiffs apparently ignored. Finally,

on January 4 and 5, 2023, Plaintiffs J.W.S. and Nichols provided their answers to the

pending interrogatories. (ECF No. 38-10.) Neither J.W.S. nor Nichols responded to the

pending requests for documents, and no discovery responses were provided by Moreland.

Oberg then filed the current motion, asking the Court to compel Moreland to

answer the pending interrogatories and all Plaintiffs to respond to the requests for

production. (ECF No. 38.) Plaintiffs object, citing various impediments to their timely

responses. (ECF No. 40.) Plaintiffs also note that Moreland has since answered the

interrogatories on January 19th and responded to the requests for production on January

22nd, which Plaintiffs assert renders Oberg’s motion moot. (Id.) Plaintiffs’ response

makes no mention of Nichols and J.W.S.’s failures to respond to the requests for

production.

Oberg asks the Court to compel the missing responses, declare objections to the

interrogatories and requests for production waived, and for any other relief deemed just

and proper. (ECF No. 38 at 4 & 41 at 2.)

Analysis

I. Oberg’s Motion is Not Moot

Moreland’s belated responses to Oberg’s discovery requests do not render the

motion moot as to him or the other plaintiffs. In general, a matter may become moot

when circumstances have changed such that it is impossible to grant any effectual relief.

Cf. Chihuahuan Grasslands All. v. Kempthorne, 545 F.3d 884, 891 (10th Cir. 2008)

(referring to mootness of a case). In this instance, Oberg is seeking multiple forms of

relief from Plaintiffs. As it relates to Moreland, Oberg is seeking an order that Moreland

answer the interrogatories and respond to the requests for production and that he be

deemed to waive any objections thereto. To the extent Moreland has now provided the

requested discovery, the first portion of the requested relief may be moot,1 but the

remainder of the relief sought is not. Moreover, Rule 37 requires the Court to take

additional actions in the very situation faced here—when discovery is provided after a

motion to compel is filed. See Fed. R. Civ. P. 37(a)(5)(A) (requiring the award of expenses

after notice and absent certain findings). Moreland cannot deprive the Court of the power

to award such relief simply by belatedly complying with his discovery obligations.

As for Plaintiffs Nelson and J.W.S., there is no indication that they have responded

in any way to the pending requests for production. Defendant Oberg’s motion is not moot

as to them.

1 Oberg asserts the discovery responses Moreland provided are “woefully deficient and

incomplete.” (ECF No. 41 at 1.) To the extent Oberg wishes to seek relief from the Court

as to any such deficiencies, she must first confer in good faith with Moreland and file an

appropriate motion with the Court.

II. Oberg is Entitled to an Order Compelling Nelson and J.W.S. to

Respond to Her Requests for Production

Pursuant to the parties’ agreement, Plaintiffs Nelson and J.W.S. were to respond

to Oberg’s requests for production by November 29, 2022. (ECF No. 38-5.) Under Rule

37, Oberg may move for an order to compel if a party fails to produce documents as

requested under Rule 34. See Fed. R. Civ. P. 37(a)(3)(iv). Neither Nelson nor J.W.S. has

provided a legally sufficient reason for ignoring the discovery deadline. They have not,

for example, sought a protective order or extension of time from the Court. An order

compelling production is appropriate here.

III. Moreland Has Waived His Objections to Oberg’s Interrogatories, But

Plaintiffs’ Objections to the Requests for Production are Not Waived

A. The Interrogatories

Pursuant to Rule 33, any objections to interrogatories are waived if not timely

stated—unless the court, for good cause shown, excuses the failure. Fed. R. Civ. P.

33(b)(4). Moreland’s responses to Oberg’s interrogatories were due on November 29,

2022. (ECF No. 38-5.) Moreland freely admits that he did not respond until January 19,

2023 (ECF No. 40), after the motion to compel was filed. Therefore, any objections

contained in his interrogatory responses were not timely.

Moreland does not respond to Oberg’s assertion that his objections are waived, but

he does note several facts in what might be an attempt to show good cause for his failure

to object in a timely fashion—namely, that Moreland was incarcerated, making it difficult

for counsel to complete the discovery responses, and counsel’s six-day jury trial in

November. (ECF No. 40.)

The Court does not find these facts to constitute good cause—at least with the

information currently before it. First, while it was Moreland who would need to sign any

answers to the interrogatories, it was counsel who must sign any objections. See Fed. R.

Civ. P. 33(b)(5). Plaintiffs’ counsel does not explain why he might need to consult with

Moreland before fashioning any objections and, if so, how that incarceration would

prevent any such consultation from occurring in the four months the discovery requests

were pending. Similarly, counsel’s six-day trial, even if spread over two weeks in

November, does not explain the failure to craft objections in four months. The Court takes

particular note of counsel’s failure to seek any agreement from Oberg’s counsel (even

when an additional extension was offered) or any relief from the Court. Difficulties

contacting clients or a heavy caseload do not excuse ignoring deadlines or

communications from opposing counsel. The Court does not excuse Moreland’s failure

to object to the interrogatories in a timely fashion, and—absent a finding of good cause in

the future—the objections are waived.

B. The Requests for Production

The law does not, however, support a blanket waiver of objections to the requests

for production. Unlike the rule governing interrogatories, Rule 34 does not contain any

provision for the waiver of objections. While some courts have ruled otherwise, the

undersigned has previously reviewed the history of the two rules and relevant case law

and has determined that Rule 34 does not include an automatic waiver of objections. See,

e.g., Logisys, Inc. v. Williams, No. 20-CV-00559-GKF-SH, 2022 WL 3573209, at *2 (N.D.

Okla. Aug. 19, 2022). Oberg has provided no legal support for her assertion of waiver or

a basis to revisit this decision. The Court will not find Plaintiffs to have waived their

objections to the requests for production.

IV. Additional Relief

Finally, Oberg seeks such other relief as deemed just and proper. Because

Moreland provided the requested discovery after the filing of the motion to compel and

because the Court has granted the remainder of the motion,

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). However, the Court must not award such expenses if, for

example, the opposing party’s nondisclosure, response, or objection was substantially

justified, or if other circumstances make an award of expenses unjust. Id. If Oberg

believes an award of expenses is warranted in this case, she may file a motion, and

Plaintiffs will have the opportunity to respond.

IT IS THEREFORE ORDERED that Defendant Keisha Oberg’s Motion to Compel

Plaintiffs’ Responses to Discovery Requests (ECF No. 38) is GRANTED. Plaintiff Nichols

shall respond to Defendant Keisha Oberg’s First Set of Requests for Production of

Documents to Plaintiff Rebecca Nichols by February 9, 2022. Plaintiff J.W.S. shall

respond to Defendant Keisha Oberg’s First Set of Requests for Production of Documents

to Plaintiff Rebecca Nichols on Behalf of Minor J.W.S. by February 9, 2022. Plaintiff

Moreland’s objections to Defendant Keisha Oberg’s First Set of Interrogatories to

Plaintiff Gary Moreland are waived, subject to any future showing of good cause.

ORDERED this 2nd day of February, 2023.

LS

UNITED STATES DISTRICT COURT