Doe v. Barber

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JANE DOE,

Plaintiff,

v. CASE NO. 3:23-CV-658-DRL-SJF

TIMOTHY P BARBER, et al.,

Defendants.

OPINION and ORDER

Pending before the Court is Plaintiff’s Second Motion to Compel Against

Defendant City of South Bend, filed on January 8, 2025, along with its corresponding

brief in support. [DEs 37, 38]. Defendant timely filed its Response on January 29, 2025.

[DE 42]. Plaintiff’s motion became ripe for decision on February 3, 2025, when she filed

her Reply. [DE 46]. For the reasons set forth below, Plaintiff’s motion is granted in part

and denied in part.

The other motions pending before the Court will be addressed in due course.

I. RELEVANT BACKGROUND

Plaintiff’s motion stems from certain written discovery she served on the City on

August 9, 2024. After obtaining several informal extensions from Plaintiff, the City

served its responses on October 9, 2024. As described in Plaintiff’s Certification

Pursuant to N.D. Ind. L.R. 37-1, counsel for the parties attempted in good faith to

resolve the discovery disputes that led to this motion in accordance with Local Rule 37-

1. [DE 39]. In particular, Plaintiff’s counsel initially raised issues regarding the City’s

discovery responses through email on October 21, 2024. The City’s counsel responded

on November 26, 2024, and counsel conferred telephonically on December 18, 2024.

Counsel once more attempted to resolve the discovery disputes through email

correspondence on January 6, and 7, 2025.

With the meet and confer requirement having been met, Plaintiff’s motion is ripe

for ruling.

II. PLAINTIFF’S SECOND MOTION TO COMPEL AGAINST THE CITY OF SOUTH BEND

[DE 37]

a. Legal Standard Relating to the Scope of Permissible Discovery

The court has broad discretion in discovery matters, including ruling on motions

to compel. See Packman v. Chi. Tribune Co., 267 F.3d 628, 646-47 (7th Cir. 2001). The

Federal Rules of Civil Procedure oblige the court “to supervise and limit discovery

when it feels the discovery is cumulative, unnecessary, designed to annoy or harass,

excessively expensive, or only marginally important.” Pistolis v. Ameren, Case Nos. 3:19-

CV-001185-MAB, 3:19-CV-001182-MAB, 2022 WL 2159291, at *4 (S.D. Ill. June 15, 2022)

(citing Mr. Frank, Inc. v. Waste Mgmt., Inc., No 80 C 3498, 1983 WL 1859, at *1 (N.D. Ill.

July 7, 1983)). The scope of discovery is outlined in Fed. R. Civ. P. 26(b)(1), which

provides that, “[u]less otherwise limited by court order”:

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.

Id. Relevancy is broadly construed to encompass “any matter that bears upon, or that

reasonably could lead to other matter[s] that could bear on, any issue that is or may be

in the case.” Herx v. Diocese of Fort Wayne-South Bend Inc., Case No. 1:12–CV–122, 2013

WL 5531376, at *1 (N.D. Ind. Oct. 7, 2013) (internal quotations omitted). However,

courts are authorized to limit discovery to only that which is warranted by the

circumstances of each case in order to hedge against the potential for discovery abuse.

Katz v. Batavia Marine & Sporting Supplies, Inc., 984 F.2d 422, 424 (Fed. Cir. 1993).

To reiterate, this court is afforded “significant discretion in ruling on a motion to

compel.” Gile v. United Airlines, Inc., 95 F.3d 492, 495-96 (7th Cir. 1996). It may grant the

relief sought in whole or in part, or otherwise “fashion a ruling appropriate for the

circumstances of the case.” Id. at 496 (citing to Fed. R. Civ. P. 37(a)(4)(B), (C)). Indeed, it

behooves this court to “independently determine the proper course of discovery based

upon the arguments of the parties.” Id. (citing to Spears v. City of Indianapolis, 74 F.3d

153, 158 (7th Cir. 1996)).

In response to a motion for an order to compel disclosure or discovery, a court

may order disclosure of information when it determines the original answer or

production is “evasive or incomplete.” Fed. R. Civ. P. 37(a)(4). If the Court believes that

a party's failure to disclose information is substantially justified or is harmless, the

Court may deny a motion to compel. Fed. R. Civ. P. 37(c)(1). Moreover, Rule

26(b)(2)(C) allows the Court to limit discovery if the information “sought is

unreasonably cumulative or duplicative, or can be obtained from some other source

that is more convenient, less burdensome, or less expensive” or “ the proposed

discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(i),

(iii).

With this in mind, the court now turns to the issues Plaintiff raises with the

City’s responses and answers to certain requests for admission, interrogatories, and

requests for production of documents in that order.

b. Plaintiff’s Second Request for Admission to the City of South Bend

i. RFAs Nos. 9, 10, and 11

Plaintiff asks the court to compel the City to supplement its responses to RFAs

Nos. 9 though 11, 18, and 26-47. RFAs Nos. 9 through 11 and 18 concern certain issues

in dispute in this case while RFAs Nos. 26-47 relate to the genuineness of certain

documents produced by the City or that the City does not object are under its custody

or control.

Rule 36 of the Federal Rules of Civil Procedure governs requests for admission.

The Rule provides that:

[a] party may serve on any other party a written request to admit . . . the

truth of any matters within the scope of Rule 26(b)(1) relating to . . . facts,

the application of law to fact, or opinions about either; and . . . the

genuineness of any described documents.

Fed. R. Civ. P. 36(a)(1). “The purpose of Rule 36 is to expedite the trial by determining

what issues are in genuine dispute and by resolving the issues which are not

disputed.” Berry v. Federated Mut. Ins. Co., 110 F.R.D. 441, 443 (N.D. Ind. 1986); see

also Escobedo v. Ram Shirdi Inc., No. 10 C 6598, 2011 WL 13243990, at *2 (N.D. Ill. Mar. 16,

2011) (“Admissions are sought, first to facilitate proof with respect to issues that cannot

be eliminated from the case, and secondly, to narrow the issues by eliminating those

that can be.”).

“Rule 36(a)(1)(A) permits requests for admissions as to facts, ‘the application of

law to fact, or opinions about either.’” Brueder v. Bd. of Trustees of Cmty. Coll. Dist. No.

502, No. 15 CV 9323, 2021 WL 1165089, at *5 (N.D. Ill. Mar. 25, 2021) (quoting Whole

Woman’s Health All. v. Hill, No. 118CV01904SEBMJD, 2020 WL 1028040, at *3 (S.D. Ind.

Mar. 2, 2020) and Hanley v. Como Inn, Inc., No. 99 C 1486, 2003 WL 1989607, at *1 (N.D.

Ill. Apr. 28, 2003)). A request to admit however, cannot be directed towards a legal

conclusion. Brueder, 2021 WL 1165089, at *5; Whole Woman’s Health All., 2020 WL

1028040, at *3; Hanley, 2003 WL 1989607, at *3.

“Under Rule 36, requests for admission should be simple and direct so that they

can be readily admitted or denied without explanation.” Climco Coils Co. v. Siemes

Energy & Automation, Inc., 04 C 50342, 2006 WL 850969, at *1 (N.D. Ill. Mar. 28, 2006).

Therefore, the party drafting a request for admission must ensure that it can be readily

admitted or denied. Tamas v. Family Video Movie Club, Inc., 301 F.R.D. 346, 347 (N.D. Ill.

2014).

A responding party must either admit or deny in an answer to a request for

admission or state in detail why it cannot truthfully admit or deny a request. Fed. R.

Civ. P. 36(a)(4). “A denial must fairly respond to the substance of the matter; and when

good faith requires that a party qualify an answer or deny only a part of a matter, the

answer must specify the part admitted and qualify or deny the rest.” Fed. R. Civ. P.

36(a)(4).

Rule 36(a)(6) allows Plaintiff to bring a motion in order determine the

“sufficiency of an answer or objection.” Fed. R. Civ. P. 36(a)(6). If the requesting party

believes the responding party to have answered insufficiently, she may move for the

court to rule on the answer's sufficiency. Fed. R. Civ. P. 36(a)(6). If challenged, the

objecting party bears the burden of justifying its objections. Ag Fur Industrielle Elektronik

Agie v. Mitsubishi Intern. Corp., No. 83 C 4056, 1986 WL 8467, at *1 (N.D. Ill. July 31,

1986); Wright & Miller, 8B Fed. Prac. & Proc. Civ. § 2263 (3d ed.) (“The burden is on the

objecting party to persuade the court that there is a justification for the objection.”).

“Unless the court finds an objection justified, it must order that an answer be

served.” Id.

If the court finds the answer insufficient, it may order the responding party to

amend the answer. Fed. R. Civ. P. 36(a)(6). The court may also simply order the matter

admitted. Fed. R. Civ. P. 36(a)(6). The court’s significant discretion in ruling on

discovery matters extends to ruling on a motion under Rule 36(a)(6). LKQ Corp. v. Kia

Motors Am., Inc., Case No. 21 C 3166, 2023 WL 2429010, at *1 (N.D. Ill. Mar. 9, 2023)

(citing to Breuder, 2021 WL 1165089, at *2; Reitz v. Creighton, No. 15 C 1854, 2019 WL

5798680, at *2 (N.D. Ill. Nov. 7, 2019)).

Here, Plaintiff asks that the court compel the City to provide responses to her

RFAs that are complete, responsive, and non-evasive. The court addresses the RFAs in

numerical order.

Plaintiff’s RFAs Nos. 9, 10, and 11, concern three specific times and dates when

Defendant Timothy Barber was working as a law enforcement officer for the City. The

City does not dispute that Timothy Barber was working on these dates. Plaintiff alleges

that each of these moments corresponds to when Timothy Barber either sexually

assaulted her or exposed himself to her. [See DE 6 at 6-7, ¶¶ 43-46; see also DE 46 at 2 n.

1]. Except for different dates and times, RFAs Nos. 9, 10, and 11 are the same. The

City’s responses to these RFA are also the same throughout. Therefore, only RFA No. 9

and the City’s response is reproduced in full:

Request 9: The City of South Bend paid Officer Timothy Barber for working

on duty for the South Bend Police Department on August 6, 2021, from 2:00

p.m. to 10:30 p.m.

[DE 37-1 at 1].

RESPONSE: Defendant City of South Bend admits only that Timothy

Barber was paid on August 6, 2021[,] for 8.5 hours and Timothy Barber

worked second detail. Otherwise, Defendant City of South Bend denies

Request for Admission No. 9.

[DE 37-4 at 1 (emphasis in original)].

In response to Plaintiff’s Interrogatory No. 7, which asked the City to explain

every denial provided in its RFA responses, the City responded regarding RFAs Nos. 9,

10, and 11, as follows:

[South Bend Police Department] policy 102.4 (see COSB3643) defined “on

duty” as “A member’s status during the period when he/she is actually

engaged in the performance of his/her assigned duties.” If Timothy

Barber was engaged in the activities alleged in the First Amended

Complaint, he was not on duty at the times that he was engaged in those

activities.

[DE 37-5 at 1-2 (emphasis in original)].

Plaintiff argues that the City’s responses to RFAs Nos. 9, 10, and 11, are evasive,

incomplete, and improperly vague. [DE 38 at 1-2]. In response, the City argues that

these RFAs represent an improper “trap for the unwary” in that they “appear to be an

attempt to transform an admission about the shift that [Timothy] Barber was working

on the dates of some of the events alleged in the Amended Complaint into an admission

concerning the scope of employment.” [DE 42 at 2]. The City represents that it has

responded to the substance of each RFA by providing the shift that Timothy Barber

worked on the pertinent dates “whilst seeking to avoid the trap laid by Plaintiff.” [Id.]

The City alludes to this “trap” as the Plaintiff’s attempt to have it admit that Timothy

Barber was acting within the scope of his employment during these three occasions. [DE

42 at 3]. In turn, Plaintiff replies that these RFAs are “simple and straightforward” and

do not ask the City to “admit what ‘shift’ [Timothy] Barber was working on those dates,

nor to admit ‘scope of employment.’” [DE 46 at 3].

The City is correct that a party cannot be asked to admit a legal conclusion. Whole

Woman's Health All., 2020 WL 1028040, at *3; Hanley v. Como Inn, Inc., No. 99 C 1486,

2003 WL 1989607, at *3 (N.D. Ill. Apr. 28, 2003). However, Rule 36(a)(1)(A) “permits

requests for admissions as to facts, ‘the application of law to fact, or opinions about

either.’” Whole Woman's Health All., 2020 WL 1028040, at *3 (quoting Fed. R. Civ. P.

36(a)(1)(A); Hanley, 2003 WL 1989607, at *1. Further, when RFAs make use of disputed

terms that go to the heart of the merits of the case, a party's ability to admit or deny the

RFAs may turn on unspoken definitions of those terms. United States v. American Ramp

Co. Inc., Case No. CV 10-9785-DSF (AGRx), 2013 WL 12373694, at *2 (C.D. Cal. Dec. 2,

2013). If an RFA contains an undefined term, as RFAs Nos. 9-11 do here with the term

“on duty,” it is proper for the City to qualify its answer by expressly stating its

definition for that term. See id.; Audiotext Communs. Network, Inc. v. U.S. Telecom, Inc.,

No. 94- 2395- GTV, 1995 WL 625744, at *6 (D. Kan. Oct. 5, 1995). Otherwise, the City

must give common words and phrases found in Plaintiff’s RFAs their ordinary

meanings. CommSolvers LLC v. Wieland N. Am., Inc., Case No. 3:21-CV-01234-NJR, 2025

WL 486364, at *3 (S.D. Ill. Feb. 13, 2025). The City properly answered RFAs Nos. 9, 10,

and 11 in good faith by tendering the applicable definition for “on duty” in order to

avoid the legal conclusion that Timothy Barber’s actions were taken in the course of his

employment.

Fazal v. Adv. Tabco, the sole case that Plaintiff cites in support, is inapposite. See

Fazal v. Advanced Tabco, No. 09-C-1116, 2010 WL 4363376, at *3 (E.D. Wis. Oct. 22, 2010).

There, the responding party denied requests for admission based on its contention that

the requesting party did not have the deposition testimony in support of the factual

allegations outlined in those requests. Id. at *2. The Fazal court held that it was improper

to deny a request to admit on the grounds that the requesting party lacked the requisite

proof in support of the allegations in the requests for admission. Id. Indeed, an

“answering party may assert lack of knowledge or information as a reason for failing to

admit or deny only if the party states that it has made reasonable inquiry and that the

information it knows or can readily obtain is insufficient to enable it to admit or deny.”

Starks-Harris v. Taylor, Cause No. 1:08–CV–176, 2009 WL 535778, at *1 (N.D. Ind. Mar. 3,

2009). Here, the City did not assert lack of information nor did it make a “lack of

knowledge” objection. Instead, the City made a good faith effort to answer Plaintiff’s

requests for admission while avoiding admission of any legal conclusions

accompanying the term “on duty.” Therefore, the City’s responses to RFAs Nos. 9, 10,

and 11 are proper.

However, the City’s responses are incomplete in one respect. In response to

RFAs Nos. 9, 10, and 11, the City fails to define what “second detail” means—it is not a

common word or phrase—and it does not explain whether “second detail” spans the

scope of time set forth in each RFA. The City is ordered to supplement its answers to

RFAs Nos. 9, 10, and 11 accordingly.

i. RFA No. 18

In RFA No. 18, the Plaintiff asks the City to admit that its police department did

not report Timothy Barber’s 2022 felony convictions to the Indiana Law Enforcement

Academy. [DE 37-1 at 11]. The City objects, arguing that RFA No. 18 is not reasonably

calculated to lead to the discovery of admissible evidence because it “addresses conduct

occurring after the events alleged in the Amended Complaint.” [DE 37-4 at 3].

Therefore, the City argues, RFA No. 18 falls outside the scope of permissible discovery

under Rule 26(b)(1). [DE 37-4 at 3]. The City also argues that RFA No. 18 contains an

inaccurate description of law but does not elaborate in response to Plaintiff’s motion to

compel. Therefore, the City has waived this objection. See Ag Fur Industrielle Elektronik

Agie, 1986 WL 8467, at *1. The court focuses on the City’s argument that RFA No. 18

falls outside the scope of permissible discovery under Rule 26(b)(1).

In her motion to compel, Plaintiff identifies topics in the Amended Complaint

which she argues RFA No. 18 “is reasonably calculated to lead to.” [DE 38 at 2-3].

Specifically, these include Plaintiff’s claims against the City for: its negligent training,

supervision, and retention of Timothy Barber; its failure to prevent and report his

actions; its “implicit ratification of or failure to repudiate” those same actions; the City’s

denials of certain paragraphs of the Amended Complaint; and whether Timothy

Barber’s actions were committed under color of state law and during the course of his

employment. [DE 38 at 2-3]. Plaintiff finally argues that RFA No. 18 goes “to the

credibility of the City’s agents.” [DE 38 at 3]. In her reply, Plaintiff reiterates that RFA

No. 18 is also probative of her claims relating to the City’s non-delegable duty, whether

the City exercised reasonable control over Timothy Barber as an employer, and several

of the City’s affirmative defenses, including any immunity under the Indiana Tort

Claims Act. [DE 46 at 6].

The purpose of requests for admission is muddled in the parties’ written

discovery and briefs. To reiterate, the purpose of requests for admission is to narrow the

matters in controversy to only those issues genuinely in dispute between the parties.

Berry, 110 F.R.D. at 443; Escobedo, 2011 WL 13243990, at *2; 8A Wright, Miller &

Marcus, Federal Practice and Procedure § 2252, at 522–523. Plaintiff is incorrect when she

argues that RFA No. 18 is proper because it is drafted to reasonably lead to the

discovery of admissible evidence under Rule 26(b)(1). [DE 28 at 2-3]. While the scope of

discovery under Rule 26(b)(1) applies, requests for admission propounded under Rule

36 are principally not discovery devices “in the technical sense.” Reitz, 2019 WL

5798680, at *2 (quoting United States v. Kasuboski, 834 F.2d 1345, 1350 (7th Cir. 1987)); see

also 7 Moore's Federal Practice § 36.02[2] (3d ed. 2020) (“Because Rule 36 was not

designed to elicit information, to obtain discovery of the existence of facts, or obtain

production of documents, requests for admission should not be used as a method of

discovery for these purposes.”). The respondent has the burden of justifying its

objections. Ag Fur Industrielle Elektronik Agie, 1986 WL 8467, at *1.

The court turns to Plaintiff’s argument. Plaintiff provides a laundry list of

allegations in her Amended Complaint, but does not explain how RFA No. 18 relates to

them. Further, this Court’s July 23, 2025, opinion and order on the City’s Fed. R. Civ. P.

12(c) motion for judgment on the pleadings [DE 74], narrowed the scope of Plaintiff’s

case, and this earlier decision applies here. See Reiser v. Residential Funding Corp., 380

F.3d 1027, 1029 (7th Cir. 2004). In particular, in that opinion and order, the court

recognized the City’s “immunity for discretionary training, supervision, and retention

of police officers” and immunity for any of Plaintiff’s allegations against the City for its

own negligence under the Indiana Tort Claims Act. [See DE 74 at 9-10]. The court also

rejected Plaintiff’s argument that the City owed her a non-delegable duty as a common

carrier. [See DE 74 at 14-16]. At this point in the litigation, as stated in that order,

Plaintiff’s “claims against the City for common carrier liability and for negligently

training, supervising, or retaining a law enforcement officer, as a matter of law and

immunity” have been dismissed. [DE 74 at 17]. As against the City, only her respondeat

superior claims directed towards Timothy “Barber’s conduct and for the conduct of

other officers who allegedly failed to intervene or prevent such conduct” remain. [DE 74

at 17].

With the scope of claims Plaintiff may pursue against the City in mind, the court

notes that also relevant here is the passage of time. As the City correctly argues,

Timothy Barber’s criminal conviction occurred months after he allegedly committed the

sexual assaults against Plaintiff as described in her Amended Complaint. The issue of

whether the City reported that conviction does not bear on any respondeat superior

liability it may owe, because that liability hinges on whether or not the City failed to

intervene or prevent his conduct from occurring. Whether the City reported the conduct

in question months after the events alleged in the Amended Complaint is not relevant.

In other words, Plaintiff’s RFA is directed towards the City’s conduct that

occurred months after Timothy Barber had allegedly committed the sexual acts against

Plaintiff. The court’s opinion and order resolving the City’s motion for judgment on the

pleadings made clear that Plaintiff’s claims against the City are limited to a respondeat

superior theory of liability. [DE 74 at 9-10]. Respondeat superior, or scope-of-employment

liability, emanates from the concept of the employer’s control over its employees and

their employment activities. Specifically, respondeat superior theory of liability to the

employer, here the City, flows from: the activities it delegates to its employees; activities

that it authorizes its employees to do; and its “employees’ acts that naturally or

predictably arise from those activities.” Cox v. Evansville Police Department, 107 N.E.3d

453, 461-62 (Ind. 2018). Respondeat superior liability recognizes that “delegating

employment activities also carries an inherent risk that those activities will naturally or

predictably give rise to injurious conduct.” Id. at 462 (internal citations omitted). “When

tortious acts are so closely associated with the employment that they arise naturally or

predictably from the activities an employee was hired or authorized to do, they are

within the scope of employment, making the employer liable.” Id. at 463 (emphasis

added).

The City’s objection to RFA No. 18 is justified because Plaintiff directs it to

conduct outside the scope of respondeat superior liability. Specifically, RFA No. 18

focuses on conduct that the City is alleged to have done after Timothy Barber’s or the

other officers’ acts. Therefore, RFA No. 18 is concerned with conduct that occurred after

respondeat superior liability attached.

The cases Plaintiff cites in support of the relevancy of RFA No. 18 are unavailing.

None of the cases involve requests for admission. The Axis Insurance Company court was

concerned with the relevancy of certain requests for production. Axis Ins. Co. v. Am.

Specialty Ins. & Risk Services, Inc., Case No. 1:19-cv-00165-DRL-SLC, 2021 WL 2910814, *1

(N.D. Ind. July 12, 2021). The Gray court held that the respondent had waived its

relevancy objections to certain interrogatories by failing to bring them in its response to

the movant’s motion to compel. Gray v. U.S. Steel Corp., 284 F.R.D. 393, 396 (N.D. Ind.

2012). The McGrath court held that a party’s “reflexive invocation of the same baseless,

often abused litany” of discovery objections in response to interrogatories, one of which

was based on relevancy, were not stated with specificity and so waived. McGrath v.

Everest Nat. Ins. Co. 625 F. Supp. 2d 660, 670-71 (N.D. Ind. 2008). The City’s objection to

RFA No. 18 does not have the same problem with specificity. Finally, the Azarov court

was concerned with the relevancy of certain interrogatories and requests for production

concerned with Plaintiff’s social media posts and the extent of certain consulting

services she offered prior to her employment with defendant, inter alia. Azarov v. Sam’s

East, Inc., Civil. No.: 2:18-cv-484, 2022 WL 16570647, at *3-4 (N.D. Ind. Nov. 1, 2022).

Ultimately, the Azarov court narrowed the scope of both topics based on Plaintiff’s

relevancy objections. Id.

Whether or not the City reported Timothy Barber’s alleged actions to the Indiana

Law Enforcement Academy is not relevant, because this alleged failure to report

occurred well after the alleged misconduct. Therefore RFA No. 18 is outside the scope

of Rule 26(b)(1). See Herx, 2013 WL 5531376, at *6.

Further, Plaintiff’s arguments relating to the credibility and probative value of

any response from the City ignore the purpose of requests for admission, which is to

narrow the scope of issues prior to trial. While credibility is an appropriate subject for

discovery, as Plaintiff demonstrates with her citation to Moore v. PlasmaCare, Inc.,

requests for admission are not the appropriate discovery tool aimed to glean that

information. Moore v. PlasmaCare, Inc., demonstrates this principal, because the court

was concerned with resolving a subpoena respondent’s motion for a protective order in

response to a subpoena duces tecum from a party. Moore v. PlasmaCare, Inc., No. 1:11–cv–

01090–SEB–MJD, 2012 WL 602623, at *1-2 (S.D. Ind. Feb. 23, 2012). Subpoenas to non-

party respondents are a typical part of civil discovery, while the Federal Rules of Civil

Procedure limit the service of requests for admission to only the parties in an action. See

Fed. R. Civ. P. 36(a)(1). While Plaintiff remains free to probe the City’s credibility

through other discovery vehicles, it is not appropriate for her to do so through RFA No.

18. Plaintiff’s arguments as to RFA No. 18 pointing to credibility are therefore

unavailing. Plaintiff does not explain how RFA No. 18 is probative of whether a code of

silence existed within the City’s police department or if it points to whether the City

conducted an internal affairs investigation of Timothy Barber.

Accordingly, the City has met its burden regarding its objections to RFA No. 18.

The City is reasonably justified in raising its objection to RFA No. 18 as being directed

to matters outside the scope of Rule 26(b)(1).

Plaintiff’s motion to compel the City’s answer to RFA No. 18 is denied.

i. RFAs Nos. 26-47

Finally, the court is left to resolve the City’s objections to RFAs Nos. 26-47, which

are made on the basis that they exceed the amount of RFAs permitted by the Court’s

Scheduling Order. “[T]he appropriate number of RFAs in any case is determined based

on an assessment of the unique circumstances of the case including the parameters of

any applicable case management order, the content of the RFAs themselves, and the

complexity of the case.” Cooper v. Rezutko, Case No. 3:17-CV-834-PPS-MGG, 2022 WL

406387, at *10 (N.D. Ind. Feb. 10, 2022). By itself, Rule 36 “provides no limit on the

number of RFAs that can be propounded. Id. (internal citation omitted). However, the

number of requests for admission cannot be excessive. Id. (quoting Tamas v. Fam. Video

Movie Club, Inc., 301 F.R.D. at 347). To that effect, Fed. R. Civ. P. 26(b)(2)(A), inter alia,

allows a court to alter the limits in the number of interrogatories or requests for

admission a party may serve on another party.

Plaintiff argues that she may issue an unlimited number of RFAs to the City so

long as they concern the authenticity of certain documents, because the parties’ report

of planning meeting set a limit of 25 requests for admission by each party to any other

party “exclusive of requests to admit the genuineness of documents.” [DE 13 at 2].

Plaintiff argues that the language “ADOPTS by reference” in the Court’s Scheduling

Order, entered on September 14, 2023, means that the Court adopted the parties’ report

of planning meeting in toto. [DE 14 at 1 (emphasis in original)]. The City argues that the

absence of the language “exclusive of requests to admit the genuineness of documents”

indicates that the Court did not adopt this exception to the limit of 25 requests for

admission. Despite Plaintiff’s arguments to the contrary, the Court’s Scheduling Order,

by not explicitly including the exception to the limit, does not adopt the exception. See

Arcelormittal Ind. Harbor, LLC v. Ryan Fireprotection, Inc., Cause No. 2:20-CV-89-PPS-JEM,

2021 WL 1884914, at *2 (N.D. Ind. May 11, 2021). Therefore, Plaintiff has exceeded the

limit of RFAs allowed in this case.

The City, however, failed to object to these excess RFAs in a timely manner. The

appropriate manner in which to serve an objection regarding the alleged excessive

number of RFAs that have been served is by filing a motion for a protective order before

the RFAs are due to be answered. See, e.g., McCurry v. Kenco Logistic Servs, No. 16-2273,

2017 WL 11489901, at *2 (C.D. Ill. Dec. 8, 2017); Tamas v. Family Video Movie Club, Inc.,

301 F.R.D. at 346-48. “A party cannot choose to answer RFAs and then contend that too

many RFAs were served upon it in the first place only after the adequacy of its

responses to the RFAs has been challenged.” Breuder, 2021 WL 1165089, at *2.

Further the City has failed to meet its burden of showing how answering RFAs

Nos. 26-47 is unduly burdensome. See BP Amoco Chemical Co. v. Flint Hills Resources,

LLC, No. 5 C 5661, 2008 WL 4542738, at *1 (N.D. Ill. June 11, 2008) (recipient of RFAs

bears the burden of establishing that answering them will be unduly

burdensome); Whole Woman's Health All., 2020 WL 1028040, at *6 (defendants failed to

carry burden where they did not provide “affidavits or other evidence describing the

costs and time that would be required to comply with Plaintiffs’ requests”); Al-Jundi v.

Rockefeller, 91 F.R.D. 590, 594 (W.D.N.Y. 1981) (“mere burdensomeness” is not enough;

“the burden must be undue in light of all the circumstances”). After review, RFAs Nos.

26-47 are concerned with the genuineness of certain documents the City produced in

discovery or with certain statements that the City does not object were made by its

agents.

Accordingly, the court finds it appropriate to extend the limit of RFAs allowed

here to include RFAs Nos. 26-47. The City is ordered to supplement its responses

accordingly. Plaintiff may not propound any additional requests for admission to the

City.

c. Plaintiff’s Second Set of Interrogatories to the City of South Bend

Plaintiff seeks to compel a further response from the City regarding

Interrogatories Nos. 7 and 8 in her second set of Interrogatories to the City. The City

states that it will supplement its answer to Interrogatory No. 8 in its response to

Plaintiff’s motion. Further, as outlined above, the information sought to be admitted to

in RFA No. 18 is outside the scope of this litigation. Therefore, those portions of

Plaintiff’s motion related to the two interrogatories at issue are moot.

Interrogatory No. 7 remains. It directs the City to name any witnesses and

documents in support of any answer other than an unqualified admission in response

to any RFAs in Plaintiff’s Second Request For Admission. Specifically at issue,

Interrogatory No. 7(b) directs the City to provide the documents “upon which the

denial or qualified response is based” to any request for admission. The City’s answer

to Interrogatory No. 7 also states that:

The documents relevant to Requests for Admission 16 and 19 through 22

will be produced upon entry of an appropriate protective order.

Defendant City of South Bend has not identified who will testify to the

information set out above.

[DE 37-5 at 2 (emphasis in original)]. Because the City has reiterated that it will provide

the documents relevant to its denials to these RFAs that portion of Plaintiff’s motion is

also moot.

Plaintiff argues that the City’s interrogatory responses are deficient in that they

do not name the witnesses on which the City relies in tendering its denials to RFAs Nos.

16-22. Plaintiff also argues that the City failed to name the witnesses who the City

intends to testify as to its answers to RFAs Nos. 9-11. In response, the City argues that it

cannot provide information that doesn’t exist, meaning that it cannot provide

information about witnesses it relied on in answering RFAs Nos. 9-11 and 16-22.

Rule 36 requires a responding party to demonstrate that a reasonable inquiry has

been made when answering a request for admission with a qualified answer or a partial

denial in response to a request for admission. Breuder, 2021 WL 1165089, at *7 (internal

citations omitted). Generally, that includes a reasonable inquiry into persons within the

responding party’s control. Id. at *8. Further, discovery responses must be made to the

best of the person's knowledge, information, and belief, formed after

a reasonable inquiry. Fed. R. Civ. P. 26(g). Here, the City’s interrogatory answers

suggest that it has not undertaken this inquiry, because it does not name a custodian of

the payment records it relied on showing Timothy Barber’s work dates. The City must

do so now.

The City responded to RFAs Nos. 16, 17, and 19-22 with unqualified denials.

Plaintiff argues that the City’s failure to name witnesses to support its denials indicates

that it did not answer the RFAs in good faith under Fed. R. Civ. P. 36(a)(4). [DE 46 at

10]. Plaintiff offers no further legal support for her argument.

In response to a request for admission, Rule 36(a)(4) requires a party to either

admit it, “deny it or state in detail why the answering party cannot truthfully admit or

deny it.” Fed. R. Civ. P. 36(a)(4). All that a denial must do is “fairly respond to the

substance of the matter.” Fed. R. Civ. P. 36(a)(4). An answering party that summarily

denies a request for admission has no obligation to defend its answer to that request.

Sig-Swiss Indus. Co. v. Fres-Co Systems, No. 91-0699, 1993 WL 147241, at *2-*3 (E.D. Pa.

April 30, 1993) (quoting Rhone-Poulec Rorer, Inc. v. Home Indem. Co., Civ. A. No. 88-9752,

1992 WL 394425, at *9 (E.D. Pa. Dec. 23, 1992)). Indeed, “a party has no obligation

under Rule 36 to qualify a [complete] denial in any way.” Rhone-Poulec Rorer, Inc., 1992

WL 394425 at *9; see also Robinson, 2009 WL 3233909 at *2.

“There is nothing in the Federal Rules of Civil Procedure which requires a party

to decide on exactly which witnesses and what evidence it will present prior to the close

of discovery. Indeed, one of the purposes of discovery is to allow parties sufficient

information to determine how to best litigate their case.” Sig-Swiss Indus. Co., 1993 WL

147241, at *3. To hold otherwise and compel the City to provide this information now

would force the City to decide prematurely who will be called at trial, or what evidence

it will seek to admit. The City is not required to make such decisions until it is time for

it to submit its pre-trial memorandum.

Accordingly, Plaintiff’s motion to compel as related to the City’s answer to

Interrogatory No. 7 is granted in part and denied in part, as outlined above. The City is

ordered to supplement its answer to Interrogatory No. 7 only as it relates to its answer

to RFPs Nos. 9-11.

d. Plaintiff’s Third Request for Production to the City of South Bend

Fed. R. Civ. P. 34(a), in the relevant part, allows a party to request the production

of documents that “constitute or contain matters within the scope of Rule 26(b).” Given

the broad scope of Rule 26(b), it is not surprising that the party resisting discovery bears

the burden of showing why a production request is improper. See Rule 34(b); Gile, 95

F.3d at 495.

Plaintiff’s motion seeks to compel material responsive to her production requests

Nos. 2, 3, and 4. The City objects to requests Nos. 2 and 3 to the extent they imply that it

could have rejected Defendant Barber’s resignation. However, the City makes clear in

its response that its “objections about the wording of these requests do not affect what

documents it will provide to Plaintiff, so this is a non-issue.” [DE 42 at 8]. Therefore, the

court assumes that the City will provide documents responsive to Plaintiff’s requests

despite its objections. Further, the City objects to producing responsive material to

requests Nos. 2, 3, and 4 without a protective order in place. The court entered a

protective order on August 28, 2025. The court presumes that the City now has

provided additional documents to the Plaintiff and so will deny the motion without

prejudice. The Plaintiff may file another motion to compel if she did not receive all the

documents she requested.

III. CONCLUSION

Accordingly, Plaintiff’s Second Motion to Compel Against Defendant City of

South Bend is GRANTED in part and DENIED in part. [DE 37]. Defendant the City of

South Bend is ORDERED to amend its Answers to RFAs Nos. 9, 10, 11, and 26-47 and

its Answer to Interrogatory No. 7(c) only as related to RFAs Nos. 9, 10, 11 by October

10, 2025. Defendant is excused from responding to RFA No. 18.

Consistent with the mandate set forth in Rule 37(a)(5)(A), the Court “must, after

giving an opportunity to be heard, require the party . . . whose conduct necessitated the

motion [to compel] . . . to pay the movant’s reasonable expenses incurred in making the

motion, including attorney’s fees.” However, “the court must not order this payment if

“the opposing party’s nondisclosure, response, or objection was substantially justified;

or other circumstances make an award of expenses unjust.” Id. Here, Defendant the City

of South Bend’s actions were substantially justified. Defendant properly relied on the

scheduling order entered in this case and on the governing law. Defendant further

made good faith efforts to answer Plaintiff’s requests for admission and interrogatories.

Accordingly, the Court finds that an award of expenses would be unjust. The Court

therefore DECLINES to award Plaintiff her reasonable expenses incurred in filing the

motion to compel.

SO ORDERED this 19th day of September 2025.

s/Scott J. Frankel

Scott J. Frankel

United States Magistrate Judge