Doe

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 are two of Plaintiff’s motions related to the March 28,

2025, Opinion and Order entered in this litigation. [DE 52]. On April 11, 2025, Plaintiff

filed her Verified Motion for Reconsideration of Parts of the Court’s Opinion and Order

of March 28, 2025. [DE 53]. In her motion, Plaintiff requests that the Court reconsider its

earlier ruling, specifically those parts granting Defendant, the City of South Bend’s

(“City”), Motion for Protective Order [DE 26], and denying Plaintiff’s first Motion to

Compel Against the City of South Bend [DE 29]. Plaintiff does not request that the

Court reconsider its grant of her earlier Motion to Compel against non-party 21CP

Solutions [DE 21]. The City timely filed its response on May 9, 2025. [DE 64]. Plaintiff’s

motion for reconsideration became fully briefed on May 21, 2025. [DE 71].

Plaintiff also filed a motion requesting review by the Honorable Judge Damon

Leichty as the presiding district judge in this case of the undersigned magistrate judge’s

Opinion and Order dated March 28, 2025. [DE 54]. Plaintiff’s motion for review will be

addressed in due course by separate order.

I. DISCUSSION

As Plaintiff’s motion for reconsideration takes issue with the Court’s application

of its broad discretion in resolving discovery disputes, it is prudent to reiterate its scope,

since that scope bears on the issues that Plaintiff raises with the Court’s resolution of the

discovery disputes found in Plaintiff’s first motion to compel directed towards the City

and the City’s motion for a protective order related to a subpoena Plaintiff issued to a

third-party 21CP Solutions, LLC (“21CP”).

The Court has broad discretion in deciding whether to compel discovery and

may deny discovery to protect a party from oppression or undue burden. Fed. R. Civ. P.

26(c); Fed. R. Civ. P. 37(a)(5)(C); Sattar v. Motorola, Inc., 138 F.3d 1164, 1171 (7th Cir.

1998); Gile v. United Airlines, Inc., 95 F.3d 492, 495-96 (7th Cir. 1996) (the court is afforded

“significant discretion in ruling on a motion to compel.”); see also Packman v. Chi. Tribune

Co., 267 F.3d 628, 646-47 (7th Cir. 2001). Thus, the Court “independently determine[s]

the proper course of discovery based upon the arguments of the parties.” Gile, 95 F.3d at

496 (citing to Spears v. City of Indianapolis, 74 F.3d 153, 158 (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)).

With the above standard in mind, the Court initially turns to Plaintiff’s argument

that reconsideration of its previous order is merited. Regarding conferral, Plaintiff

argues the Court improperly found that Plaintiff’ s certification of a good faith attempt

to confer prior to filing her motion to compel was deficient but it excused the City’s

failure to file a corresponding certification to its motion for a protective order. Plaintiff’s

argument regarding the parties’ conferral is addressed below. Plaintiff’s objection to the

Court’s grant of the City’s motion for a protective order is addressed afterwards. Last,

the Court addresses Plaintiff’s initial motion to compel.

A. Rule 37 Certifications

To restate, in addition to taking issue with the Court’s resolution of the substance

of the parties’ discovery disputes, Plaintiff takes issue with the Court’s application of

Rule 37(a)(1) and N.D. Ind. L.R. 37-1 when resolving the City’s motion for a protective

order, compared with how the Court resolved Plaintiff’s motion to compel.

Before a discovery dispute is brought to the Court’s attention, the parties must

attempt to resolve it among themselves. See Robinson v. Potter, 453 F.3d 990, 994-95 (8th

Cir. 2006) (citing Naviant Mktg. Solutions, Inc. v. Larry Tucker, Inc., 339 F.3d 180, 186 (3rd

Cir. 2003). Rule 26(c), Rule 37(a)(1), and Local Rule 37-1 all require counsel for the

parties to attempt in good faith to resolve discovery disputes prior to filing discovery

motions, and in furtherance of those goals, require movants to submit a certification

explaining their good faith efforts to confer and resolve the discovery dispute without

seeking court intervention. Fed. R. Civ. P. 26(c); Fed. R. Civ. P. 37(a)(1); N.D. Ind. L. R.

37-1.

Accordingly, all motions for protective orders and motions to compel discovery

“must include a certification that the movant has in good faith conferred or attempted

to confer with the person or party failing to make disclosure or discovery in an effort to

obtain it without court action.” Fed. R. Civ. P. 26(c); Fed. R. Civ. P. 37(a)(1). Local Rule

37-1 supplements Rule 37(a)(1)’s requirement. Axis Ins. Co. v. Am. Specialty Ins. & Risk

Services, Inc., Case No. 1:19-cv-00165-DRL-SLC, 2022 WL 21697161, at *11 (N.D. Ind.

April 28, 2022). Additionally, the meet and confer requirement in Local Rule 37-1

encompasses “every motion concerning discovery.” See Imbody v. C & R Plating Corp.,

2010 WL 3184392, Cause No. 1:08–CV–218, at *1 (N. D. Ind. Aug. 10, 2010) (denying

motion for a protective order related to a subpoena directed to a third party). The Court

may deny a motion to compel that fails to include the required certification. See N.D.

Ind. L.R. 37-1(b). That being said, “[c]ourts have broad discretion in determining

whether the moving party has satisfied the meet-and-confer component

of Rule 37(a)(1) and Local Rule 37.1.1” Axis Ins. Co., 2022 WL 21697161, at *11

(quoting Sowell v. Dominguez, No. 2:09 CV 47, 2011 WL 4496505, at *3 (N.D. Ind. Sept. 27,

2011).

However, procedural shortcomings can be excused if the movant somewhat

complied with the purpose of Rule 37-1 or if there is little doubt that the mandating

compliance would simply delay the resolution of the parties’ dispute. Payne Jr. v.

Indiana Department of Corrections, Case No. 3:23-CV-0090-CCB-SJF, at *3 (N.D. Ind. June

23, 2025); Washington v. Tovo, No. 2:17-CV-128, 2018 WL 2126941, at *2 (N.D. Ind. May

9, 2018); see also Lucas v. GC Servs. L.P., 226 F.R.D. 328, 335 (N.D. Ind. 2004) (plaintiffs'

lack of compliance with predecessor to Rule 37-1 was not fatal because the motion

reflected an effort to confer with the defendants).

1 Northern District of Indiana Local Rule 37.1 was restyled as Local Rule 37-1 when the Local Rules were

revised on January 1, 2012. See Northern District of Indiana, Local

Rules, https://www.innd.uscourts.gov/court-info/local-rules-and-orders.

Indeed, courts in the Northern District of Indiana routinely exercise their

discretion when determining whether to excuse parties’ apparent noncompliance with

predicate meet and confer requirements related to discovery motions. For example, in

Stratford Insurance Co. v. Shorewood Forest Utilities, Inc., after denying the movant’s

pervious motion to compel as premature and warning the parties to work together to

resolve their disputes prior to involving the court, the court decided to resolve the

pending motion to compel despite that it was “not apparent to the Court whether the

parties had any meet and confer conferences as legitimate attempts to resolve the

dispute raised in the instant motion, rather than just assertions of their positions.”

Stratford Insurance Co. v. Shorewood Forest Utilities, Inc., Cause No.: 2:20-CV-372-PPS-

JEM, 2023 WL 3168469, at *2-3 (N.D. Ind. May 1, 2023). Even further, the Axis Ins. Co.,

court found that although movant did not specifically provide the details of a meet and

confer conference as required by Local Rule 37-1(a), and so while it was within the

court’s discretion to deny the motion on procedural grounds, it was also proper for the

court to address the motion to compel despite this procedural deficiency, which the

court then proceeded to do. Axis Ins. Co., 2022 WL 21697161, at *11.

Finally, it is also within a court’s discretion to deny discovery motions sua sponte

based on a movant’s failure to demonstrate compliance with meet and confer

requirements. See Imbody, 2010 WL 3184392, at *1)(denying motion to quash non-party

subpoenas and for a protective order based on inadequate meet and confer certification

one day after motion was filed).

Here, Plaintiff argues that the Court abused its discretion when it held that

Plaintiff failed to comply with the meet and confer requirements under Rule 37(a)(1)

and Local Rule 37-1, and thus denied Plaintiff relief on the motion to compel that she

brought against the City, while excusing the City’s noncompliance with the same

requirements under Rule 26(c) and Local Rule 37-1. Plaintiff further argues that the

City’s failure to file a Local Rule 37-1 Affidavit justified a total denial of the City’s

motion for a protective order.

Plaintiff is correct that, in its motion, the City did not describe its attempts at

resolving the dispute related to the protective order beyond stating that it had conferred

with Plaintiff’s counsel and that Plaintiff’s counsel objected. Further, the City is

incorrect in arguing that Local Rule 37-1 does not apply to its motion for a protective

order. See Imbody, 2010 WL 3184392, at *1. However, it is clear from Plaintiff’s response

and motion to reconsider that any further attempts at conferral would not have

resolved the dispute. Prior to the City filing its motion, Plaintiff objected to allowing the

City to conduct a privilege review of any documents 21CP would produce in response

to Plaintiff’s subpoena. Plaintiff continues to argue against such a grant in her motion

for reconsideration. Any additional attempts on the City’s part to resolve this dispute

with Plaintiff would have been futile, and so the Court was warranted in excusing the

City’s noncompliance with Rule 26(c) and Local Rule 37-1 when granting the motion for

a protective order.

Plaintiff objects to the Court’s assessment of Plaintiff’s attempts to resolve her

discovery dispute with the City prior to filing her first motion to compel. Plaintiff first

takes issue with the Court’s sua sponte denial of her motion on this basis. Plaintiff argues

that the Court’s actions were clearly erroneous and contrary to law because they were

outside the adversarial issues presented to the Court by the parties. The single case

Plaintiff cites in support relates to the district court’s discretion in declining to allow

further amendment of a complaint. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906

F.2d 1185, 1191-92 (7th Cir. 1990). Plaintiff does not cite any other precedent in support

of her argument or explain how Bank of Waunakee, applies to limit the Court’s discretion

to enforce conferral requirements. Moreover, Plaintiff’s argument that she did satisfy

the meet and confer requirements of Rule 37(a)(1) and Local Rule 37-1 with the

submitted documentation and certification reflects only disagreement with the Court’s

earlier analysis, which is not a proper basis for reconsideration. First Specialty Ins. Co. v.

Supreme Corp., No. 3:12-cv-JD, 2018 WL 4680015, 2018 WL 4680015, at *2 (N.D. Ind. Sept.

28, 2018); Broaddus v. Shields, 665 F.3d 846, 860 (7th Cir. 2011) (overruled on other

grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013)).

Plaintiff provides additional facts in her motion for reconsideration which show

that Plaintiff’s counsel made an additional attempt to confer with the City’s counsel via

telephone prior to filing her motion to compel, in response to which the Plaintiff was

notified that the City was standing on its objections via an email response. Plaintiff’s

counsel provides evidence of this additional correspondence to show that the Court

abused its discretion in denying Plaintiff’s motion. Plaintiff’s additional evidence is not

sufficient to show that the Court abused its discretion.

Despite this, the Court endeavors to fashion a ruling appropriate to the unique

circumstances of the case. Gile, 95 F.3d at 496; Fisher v. National R.R. Passenger Corp., 152

F.R.D. 145, 149 (S.D. Ind. 1993). Further, it is apparent from the parties’ briefing that

their dispute will not be resolved absent Court intervention. See Jackson v. Macon County

Sheriff’s Dep’t, Case No. 19-2169, 2021 WL 2834371, at *2-3 (C.D. Ill. June 11, 2021).

A motion to compel can be renewed, if necessary, after counsel conduct a

conference, or after the movant properly shows that a conference was attempted.

Imbody, 2010 WL 3184392, at *1 (citing Shoppell v. Schrader, No. 1:08–CV–284, 2009 WL

2515817, at *2 (Aug. 13, 2009)). To this effect, the movant may bring additional evidence

in support in a motion to reconsider. Fisher, 152 F.R.D. at 149 (affidavit from movant’s

counsel filed in support of his motion for reconsideration was sufficient to show that his

failure to comply with the court’s local rules was wholly inadvertent.) Relevant here,

the Fisher court stated:

Where a previous error is the result of negligence or other nonculpable

conduct, and when a motion involves important issues which may effect

the outcome of case, like this motion to compel, the dispute is better decided

on the merits than on procedural grounds. In these circumstances, the court

is generally inclined to grant a motion to reconsider when a party interposes

valid arguments in support of the motion.

Id. With the above criteria in mind, the Fisher court granted the movant’s motion for

reconsideration in order to determine whether the movant’s motion to compel

discovery was warranted. Id.

Here, Plaintiff’s motion is verified by counsel under 28 U.S.C. § 1746, as

containing representations of fact that are true and correct under the penalties of

perjury and is dated April 11, 2025. A declaration contemplated by 28 U.S.C. § 1746 may

be submitted instead of an affidavit. See Fed. R. Civ. P. 56(c)(4), Advisory Committee

Note to 2010 Amendment (“A formal affidavit is no longer required. 28 U.S.C. § 1746

allows a written unsworn declaration, certificate, verification, or statement subscribed

in proper form as true under penalty of perjury to substitute for an affidavit.”); see

also Owens v. Hinsley, 635 F.3d 950, 954–55 (7th Cir. 2011). Like the additional facts the

movant’s counsel brought in support of his motion for reconsideration in Fisher, the

facts Plaintiff brings in her verified motion are sufficient to show that her failure to

comply with Rule 37(a)(1) and Local Rule 37-1 was the result of nonculpable conduct.

Accordingly, Plaintiff’s motion to reconsider her initial motion to compel [DE 29]

is granted. The merits of Plaintiff’s motion to compel are addressed in section D, infra.

B. Standard for Motion to Reconsider Court’s Grant of Protective Order

[DE 53]

Before the Court considers Plaintiff’s motion to compel, it turns to the City’s

motion for a protective order, which Plaintiff argues in her motion for reconsideration

was improperly granted. Plaintiff and the City do not dispute that motions to

reconsider interlocutory orders such as the Court’s March 28, 2025, Opinion and Order

are governed by Fed. R. Civ. P. 54(b), which provides that an order adjudicating “fewer

than all the claims or rights and liabilities of fewer than all the parties” may be revised

at any time before the entry of a final judgment. Fed. R. Civ. P. 54(b). Thus, courts may

reconsider non-final orders as justice requires prior to final judgment. First Special Ins.

Co., 2018 WL 4680015, at *1.)

The Seventh Circuit has repeatedly held that motions for reconsideration serve

limited functions, including correcting manifest errors of law or fact or presenting

newly discovered evidence. Publishers Res., Inc. v. Walker-Davis Publ’ns, Inc., 762 F.2d

557, 561 (7th Cir. 1985) (quotation omitted). A manifest error does not exist just because

the losing party is disappointed with a court’s decision. First Special Ins. Co., 2018 WL

4680015, at *1. Rather, a manifest error arises from “the wholesale disregard,

misapplication, or failure to recognize controlling precedent.” Id. (quoting Oto v. Metro.

Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)). Simply put, motions for reconsideration

are not to be used to advance arguments that the Court has already addressed and

decided. See Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th

Cir. 1996); Stodola v. Finley & Co., Inc., No. 2:05-CV-464-PRC, 2008 WL 3992237, at *5

(N.D. Ind. Aug. 21, 2008). “Indeed, the court’s orders are not mere first drafts, subject to

revision and reconsideration at a litigant’s pleasure.” Lock Realty Corp. IX v. U.S. Health,

LP, No. 3:06-CV-487RM, 2010 WL 148296, at *1 (N.D. Ind. Jan. 13, 2010).

However, motions for reconsideration serve the limited function of allowing the

Court to correct manifest errors of law or fact or to consider newly discovered material

evidence. See Cnty. of McHenry v. Ins. Co. of the West, 438 F.3d 813, 819 (7th Cir. 2006).

Such a motion “essentially enables a district court to correct its own errors, sparing the

parties and the appellate courts the burden of unnecessary appellate

proceedings.” Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir.

1995). Whether to grant a motion for reconsideration “is entrusted to the sound

judgment of the district court.” In re Prince, 85 F.3d 314, 324 (7th Cir. 1996).

As outlined below, the Court finds that its grant of the City’s Motion for a

protective order was proper and denies Plaintiff’s motion to reconsider.

C. City of South Bend’s Motion for a Protective Order [DE 26]

Plaintiff brings a litany of arguments directed towards the Court’s grant of the

City’s motion for a protective order. The Court, supra, has addressed Plaintiff’s

argument that it was improper to excuse the City’s noncompliance of the meet and

confer requirements and has declined to reconsider the March 28, 2025, Opinion and

Order. Plaintiff’s remaining arguments are addressed below.

Initially, Plaintiff argues that the Court abused its discretion when it excused the

City’s failure to timely bring its motion for a protective order, which Plaintiff argues

was a wholly sufficient justification for denying the motion. The City is correct in

arguing that Plaintiff is merely rehashing the argument she brought in response to the

City’s motion. Further, Plaintiff’s argument that the Court improperly conflated

“whether a party has timely filed a motion for a protective order and whether a party

has waived privilege objections” is without merit. See [DE 71 at 3 n. 2]. If the Court

found that the City waived its right to review documents 21CP produced in response to

Plaintiff’s subpoena, and consequently ordered them to be produced directly to

Plaintiff, then any documents or communications implicating the City’s claims of

privilege relating to 21CP produced would in effect be moot, as the documents would

already be in Plaintiff’s possession.

Plaintiff further argues that the City’s failure to object to the subpoena within the

time for 21CP to comply with Plaintiff’s subpoena or within 14 days of service of the

subpoena to 21CP constitutes waiver of any objections the City may have as to any

documents or communications 21CP may produce. See Fed. R. Civ. P. 45(d)(2)(B), (e)(2).

Plaintiff’s argument is a rehash of what was brought in response to the City’s motion

for a protective order. The Court rejected Plaintiff’s argument as a basis for denying the

City’s motion for a protective order. Therefore, Plaintiff has not provided a proper basis

for reconsideration.

Plaintiff’s third argument is related to a report 21CP provided at the City’s

request in July of 2020. The City published the July 2020 report on its website. Plaintiff

argues that by publishing the report, the City waived any privilege objections it may

directed toward documents 21CP produces that relate to the preparation of the report.

Plaintiff argues that the City is not entitled to any prior review of documents 21CP may

produce to Plaintiff pursuant to her subpoena. The City’s argument, found in its reply

in support of its motion for a protective order, is that the disclosure of the report does

not waive privilege for each and every document that relates to 21CP’s investigation

and preparation of the report. [DE 28 at 3]. Plaintiff cites three cases in her motion to

reconsider. Burden-Meeks v. Welch, deals with a single report, not the universe of

documents that may have been made in preparation of same. Burden-Meeks v. Welch, 319

F.3d 897, at 899 (7th Cir. 2003). In re Steinhardt Partners, L.P., the second case Plaintiff

cites, also concerns the disclosure of a single memorandum, and whether the

protections of that single document were waived. In re Steinhardt Partners, L.P., 9 F.3d

230, 233-34 (2nd Cir. 1993). The third case Plaintiff cites concerns whether a privilege

applied to “the same documents” previously disclosed to an administrative agency.

Permian Corp. v. U.S., 665 F.2d 1214, 1221 (D.C.C. 1981). The cases demonstrate that the

scope of waiver is limited to those documents that were actually disclosed and not to all

the documents underlying the report that was prepared. The Court declines to

reconsider its grant of the City’s motion for a protective order based on this argument.

In her motion to reconsider, Plaintiff’s fourth, sixth, and seventh arguments

concern whether the City waived its privilege objections by providing statements and

documents to 21CP and by having 21CP provide those documents to the City in turn.

Plaintiff argues that the City’s provision of those documents to 21CP and 21CP’s

provision of documents to the City waived any of the privilege objections with respect

to those documents. "[C]onfidential communications between an attorney and the

client's third-party consultant remain privileged when conducted 'for the purpose of

obtaining or providing legal advice."' Schmucker v. Johnson Controls, Inc., Cause No. 3:14-

CV-1593-JD-MGG, 3:15-cv-226-JD-MGG, 2017 WL 6043328, *5 (N.D. Ind. Sept. 19, 2017).

Legal advice related to a specific matter may be privileged where an entity’s attorney

requires the input of a third-party consultant. Id. (citing Stafford Trading v. Lovely, No.

05-C-4868, 2007 WL 611252, at *2 (Feb. 22, 2007). Additionally, the City has an interest in

fully preparing information and material for an internal investigation without the fear

that work-product privilege does not apply. Appleton Papers, Inc. v. E.P.A., 702 F.3d

1018, 1025-26 (7th Cir. 2012). To reiterate, Plaintiff does not dispute that she is seeking

information from 21CP that stems from an assessment 21CP undertook of the South

Bend Police Department at the direction of South Bend Corporation Counsel. Material

connected to such an investigation is commonly subject to a privilege review. See, e.g.,

Palmer v. City of Decatur, Case No. 17-3268, 2019 WL 13156161, *2 (C.D. Ill. July 19, 2019).

The Court declines to reconsider its grant of the City’s motion for a protective order

based on these arguments.

The fifth and eight arguments that Plaintiff brings relate to whether the Court

misstated the law related to waiver of privilege. Plaintiff argues that the Court did so

when it determined that the City did not automatically waive any potential privilege

objections based on its tardy motion for a protective order. The City argues that the

Court’s interpretation of the law is correct. Because Plaintiff’s arguments simply reflect

disagreement with the Court’s analysis, Plaintiff has not provided a proper basis for

reconsideration. First Specialty Ins. Co., 2018 WL 4680015, at *2; Broaddus; 665 F.3d at 860.

D. Plaintiff’s Motion to Compel [DE 29]

i. Legal Standard Relating to the Scope of Permissible Discovery

The City objects to Plaintiff’s written discovery requests largely because they fall

outside of the scope outlined in Fed. R. Civ. P. 26(b)(1). Rule 26(b)(1) 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). In that

vein, the Court has broad discretion in deciding whether to compel discovery and may

deny discovery to protect a party from annoyance, embarrassment, oppression, or

undue burden or expense. Fed. R. Civ. P. 26(c); Sattar, 138 F.3d at 1171;)Gile, 95 F.3d at

495-96.)

Discovery requests that encompass information far beyond the claims and

defenses at issue in a case are not permitted. Vakharia v. Swedish Covenant Hosp., No. 90

C 6548, 1994 WL 75055, at *2 (N.D. Ill. 1994) (“The discovery rules are not a ticket to an

unlimited, never-ending exploration of every conceivable matter that captures an

attorney's interest. Parties are entitled to a reasonable opportunity to investigate the

facts—and no more.”) Information not directly related to the claims or defenses

identified in the pleadings may still be within the scope of permissible discovery if it is

relevant to the subject matter involved in the action. Hills v. AT&T Mobility Services,

LLC, Case No. 3:17-CV-556-JD-MGG, 2021 WL 3088629, at *3 (N.D. Ind. 2021); Sanyo

Laser Products, Inc. v. Arista Records, Inc., 214 F.R.D. 496, 502 (S.D. Ind. 2003); see

also, Adams v. Target, No. IP00–1159–C–T/G, 2001 WL 987853, *1 (S.D. Ind. July 30,

2001).

The burden, including that regarding the scope of permissible discovery, “rests

upon the objecting party[,]” who must “show why a particular discovery request is

improper.” Gregg v. Local 305 IBEW, Cause No. 1:08–CV–160, 2009 WL 1325103, *8 (N.D.

Ind. May 13, 2009) (citing Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D. 447,

449–50 (N.D. Ill. 2006). However, when the relevancy of the discovery sought is not

apparent, or when the discovery request is overly broad, “the requesting party must

establish relevancy.” Hills, 2021 WL 3088629, at *4; see also, Greenbank v. Great Am.

Assurance Co., No. 3:18-cv-00239-SEB-MPB, 2019 WL 6522885, at *3 (S.D. Ind. 2019) (“A

party moving to compel production carries the initial burden of establishing, with

specificity, that the requested documents are relevant.”)

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 decision applies to narrow the scope of relevant discovery 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 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.

ii. RFAs Nos. 1, 2, 3, 4, and 7

Plaintiff asks the Court to compel the City to answer RFAs Nos. 1, 2, 3, 4, and 7 in

her First Request for Admission. The City objects to these RFAs as outside the scope of

Rule 26(b)(1). Rule 36(a)(1) provides that the scope of any request for admission must

conform to Rule 26(b)(1). The purpose of requests for admission is to narrow the

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

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

Shirdi Inc., Case Number 10 C 6598, 2011 WL 13243990, at *2 (N.D. Ill. Mar. 16, 2011); 8A

Wright, Miller & Marcus, Federal Practice and Procedure § 2252, at 522–523.

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 v. Bd. of Trustees of Cmty. Coll. Dist. No. 502, No. 15 CV 9323, 2021 WL

1165089, at *2 (N.D. Ill. Mar. 25, 2021); Reitz v. Creighton, No. 15 C 1854, 2019 WL

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

The Court first addresses Plaintiff’s RFAs Nos. 2 and 7, which concern a

statement South Bend Police Chief Scott Ruszkowski posted on a news website on June

1, 2020, in the wake of George Floyd’s death in Minneapolis. [DE 29-4 at 2-3, DE 33 at 5

n. 1]. The statement, written in first-person, opines on justice in policing and

accountability within the law enforcement community. [Id.] Plaintiff’s RFA No. 2

requests that the City admit that Chief Ruszkowski authored the statement. RFA No. 7

requests that the City authenticate a document from Plaintiff’s production that contains

the statement. The City objects and argues that both RFAs fall outside the scope of

permissible discovery under Rule 26(b)(1). Plaintiff argues that the City’s objection is

not justified because Chief Ruszkowski’s statement relates to Plaintiff’s claims of direct

negligence against the City. Plaintiff also argues that Chief Ruszkowski’s statement

refutes the City’s denial in the pleadings that any code of silence existed within the

South Bend Police Department while also buttressing Timothy Barber’s admission that

a code of silence did exist.

To reiterate, the scope of Plaintiff’s case has been narrowed by this Court’s July

23, 2025, Opinion and Order and this decision applies here. See Reiser, 380 F.3d at

1029.)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]. RFAs Nos. 2 and 7 concerning Chief Ruszkowski’s general statement are not

reasonably calculated to narrow the matters here to only those genuinely in dispute.

Principally, these RFAs are not related Plaintiff’s respondeat superior claims directed

towards the City based on Timothy Barber’s conduct, which are the only claims that

remain against the City. [See DE 74 at 17]. Therefore, the City’s objections to RFAs Nos.

2 and 7 are proper.

The City also objects to RFA No. 1 as falling outside the scope of permissible

discovery2 under Rule 26(b)(1). RFA No. 1 directs the City to admit that:

No member of the South Bend Police Department (including SBPD Officer

Timoty Barber and SBPD Officer Zac Overton) ever reported child abuse

involving Jane Doe to the Indiana Department of Child Services or a local

law enforcement agency under Indiana Code § 31-33-5-1 et seq.

The City argues that whether any South Bend police officer reported Timothy

Barber’s alleged actions towards Jane Doe to the Indiana Department of Child Services

2 The City withdrew its objection that RFA No. 1 incorrectly assumes a duty to report child abuse. [DE 33

at 22 n.11]

or a local law enforcement agency is irrelevant to Plaintiff’s claims. The City further

argues that whether such reporting occurred or did not occur is not relevant to

Plaintiff’s respondeat superior claims against it. Plaintiff points RFA No. 1 as relevant to

her claims of direct negligence against the City, which Plaintiff cannot bring, as outlined

by this Court’s July 23, 2025, Opinion and Order. See Reiser, 380 F.3d at 1029. Plaintiff

further points to the South Bend Police Department’s own internal policy manual,

which Plaintiff argues mirrors Indiana Code § 31-33-5-1 et seq. and argues that whether

Timothy Barber or other police officers followed the reporting requirement is relevant

to the immunity defenses brought by the Defendants.

The City has not met its burden in showing how RFA No. 1 is not relevant, and

outside the scope of permissible discovery. The South Bend Police Department’s own

internal policy manual makes the reporting of abuse as alleged here mandatory.

Whether Timothy Barber—the alleged perpetrator of such abuse—or any other witness

followed the reporting requirements is relevant to the allegations Plaintiff brings in her

first amended complaint. Even if the likelihood of Timothy Barber reporting his own

alleged abuse is incredibly low, that does not render the question of whether he or his

colleagues did or not report the abuse irrelevant.

RFAs Nos. 3 and 4 concern the hiring of an individual by the City of South Bend

as its first Community Police Review Director after he had been suspended several

times by the Indianapolis Metropolitan Police Department, including for using a sexist

slur against women in training—presumably within the law enforcement context—on

Facebook. The City objects to these RFAs as outside the scope of permissible discovery,

because they are unrelated to the City’s respondeat superior liability concerning Timothy

Barber. Plaintiff argues that these RFAs are relevant because they concern the City’s

direct liability. The Court dismissed these claims in its July 23, 2025, Opinion and Order.

[See DE 74 at 9-10, 17]. Therefore, the City’s scope objection is sustained.

The City’s objection regarding RFA No. 1 is overruled. The City must provide its

response by October 28, 2025. The City has met its burden of showing that RFAs 2, 3, 4,

and 7 are outside the scope of permissible discovery. Therefore, the City’s objections to

RFA 2, 3, 4, and 7 are sustained.

iii. Plaintiff’s Interrogatories Nos. 1, 5, and 6

Plaintiff takes issue with the City’s scope objections directed at Plaintiff’s

interrogatories Nos. 1, 5, and 6. In interrogatory No. 1, Plaintiff directs the City to

explain any denial in response to Plaintiff’s RFAs3. In response, the City incorporated

its objections to those RFAs as its answer to the interrogatory. The City’s objections to

Plaintiff’s RFAs Nos. 1, 2, 3, 4, and 7 are that they are outside the scope of permissible

discovery. The Court has sustained the City’s objections for all of Plaintiff’s requests for

3 The text of interrogatory No. 1 is as follows: “If South Bend failed to admit or gave less than an

unqualified admission to any of Plaintiff’s First Requests for Admission to Defendant City of South Bend, then

for each such Request state in detail:

(a) The facts upon which the denial or qualified response is based;

(b) The documents upon which the denial or qualified response is based (identified by Bates

number or by title, date, and author); and

(c) The name, address, and telephone number of each witness who will testify regarding the

denial or qualified response.”

[DE 29-5 at 1].

admission except for RFA No. 1. Accordingly, the City is excused from answering

Interrogatory No. 1, except as it relates to RFA No. 1.

The City’s objections for interrogatories Nos. 5 and 6 are that they are outside the

scope of Rule 26(b)(1). Interrogatory No. 5 states:

State the name and position of all supervisors (including, but not limited to,

immediate supervisors, training supervisors, and shift supervisors) for

SBPD Officer Zach Overton, SBPD Officer Tobias Taylor, SBPD Officer

Ryan Williams, and SBPD Officer Jeremiah Hooks during the period

January 1, 2021, [sic] through October 4, 2021.

[DE 29-5 at 2].

The City answered as follows: “Defendant City of South Bend objects to Interrogatory

No. 5 because it is outside the scope of permissible discovery under Rule 26(b)(1).” [DE

29-5 at 2] (emphasis omitted). Interrogatory No. 6 states:

For each claim of sexual misconduct made against an employee of the City

of South Bend (including, but not limited to, the South Bend Police

Department, the South Bend Fire Department, and the South Bend Board of

Public Works), during the period July 10, 2018 [sic] through September 15,

2022, state:

(a) The name, address, and telephone number of the South Bend

employee accused of sexual misconduct;

(b) The allegations of sexual misconduct made against the South Bend

employee; and

(c) The disciplinary action, if any, that South Bend took against the

employee arising from the claim of sexual misconduct.

[DE 29-5 at 2-3].

The City answered as follows:

Defendant City of South Bend objects to Interrogatory No. 6 because it is

outside the scope of permissible discovery under Rule 26(b)(1), vague

(particularly the phrase “claim of sexual misconduct”), and overbroad.

Subject to and without waiving said objections:

On or about September 9, 2022, Plaintiff Jane Doe accused Timothy Barber

of acts of child seduction, public indecency, and public nudity. For further

information responsive to this interrogatory, refer to Plaintiff’s

correspondence dated September 9, 2022 and the documents attached

thereto.

[DE 29-5 at 3] (emphasis omitted).

Plaintiff argues that the City has not established its scope objections with

sufficient specificity as to render them anything beyond boilerplate objections. The City

responds that although parties are required to state the grounds for an objection, they

are not required to provide legal briefs. Further, the City argues that it explained its

objections with citations to authority, and stood on its position that discovery related to

allegations of misconduct by other South Bend employees are irrelevant to any legal

theory that Plaintiff could pursue at trial. The City finally argues that Plaintiff has not

established how these interrogatories are relevant and proportional to the needs of this

case. Motorola Sols., Inc. v. Hytera Commc'ns Corp., 365 F. Supp. 3d 916, 924 (N.D. Ill.

2019); see also, BankDirect Cap. Fin., LLC, No. 15 C 10340, 2018 WL 946396, at *4 (N.D. Ill.

Feb. 20, 2018) (“Unless the requestor can demonstrate that the materials sought are

relevant, judges should not hesitate to exercise appropriate control over the discovery

process.”).

The City also objects to interrogatory No. 6 as improperly vague, especially in

regards to the term of “claim of sexual misconduct” as being improperly vague.

Plaintiff retorts that interrogatory No. 6 is relevant to several theories she has advanced

towards determining credibility, and the City’s vagueness objection is not well-taken,

because the City used the terms “claim” and “sexual misconduct” in its own discovery

requests directed towards Plaintiff.

Here, 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, 380 F.3d at 1029. 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]. Plaintiff instead focuses only on the high-level subject

matter relevance of this interrogatory to the claims and defenses in this case, namely,

the claims in her first amended complaint and any credibility determinations of

potential witnesses at trial. The claims of sexual misconduct made against any

employee other than Timothy Barber are not relevant to this case. The City has

answered interrogatory No. 6 in regards to Timothy Barber. Further, Plaintiff does not

elaborate how any sexual misconduct claims against any other employee of the City of

South Bend (including, but not limited to, the South Bend Police Department, the South

Bend Fire Department, and the South Bend Board of Public Works), are relevant, or

could reasonably lead to evidence relevant to this case. The relevance of such claims to

Plaintiff’s case is not readily apparent. Further, Plaintiff’s arguments that any such

claims go to credibility determinations are not persuasive. It is not readily apparent to

the Court how, for example, a claim of sexual misconduct against an employee of the

South Bend Board of Public Works would aid in a credibility determination of any

witnesses Plaintiff may choose to call in this case.

Accordingly, the City’s Rule 26(b) objection is sustained. Because this objection is

sufficient to excuse the City from answering the interrogatory any further, the Court

declines to address the City’s vagueness objections at this time.

iv. Plaintiff’s Requests for Production Nos. 6, 12, 19, 20, 21, 28, 29, 33,

34, 36, 37, 38

Plaintiff argues that the City’s response to RFP No. 6, that Plaintiff’s request is

improper because she is already in possession of the responsive material she seeks,

should be overruled. However, Plaintiff does not request that the Court order the City

to produce this responsive material. Instead, Plaintiff requests that the City confirm in

writing that it has produced all responsive material in its possession, custody, or

control. Plaintiff’s request for this signed certification from the City is addressed below.

Plaintiff argues that the City’s responses to RFPs Nos. 12, 19, 20, 21, 28, 29, 33, 34,

36, 37, 38, are insufficient because despite that City states “[r]esponsive documents are

produced herewith” it is impossible for Plaintiff to tell whether the City has produced

all responsive documents. [DE 31 at 5]. Plaintiff points to missing portions of Timothy

Barber’s payroll records and missing GPS data for police officers other than Timothy

Barber as evidencing that the City has not produced all responsive documents. As a

result, Plaintiff requests that the Court order the City to confirm in writing that it has

produced all responsive documents in its possession, custody, or control. Plaintiff also

argues that the City should produce all responsive documents whether or not a

protective order is in place.

Rule 26(g) provides that every discovery response must be signed by at least one

attorney of record, and by signing, “an attorney or party certifies that to the best of the

person's knowledge, information, and belief formed after a reasonable inquiry” the

responses are complete, correct, and consistent with the Federal Rules of Civil

Procedure. Fed. R. Civ. P. 26(g)(1). “If a certification violates this rule without

substantial justification, the court, on motion or on its own, must impose an appropriate

sanction on the signer, the party on whose behalf the signer was acting, or both.” Fed.

R. Civ. P. 26(g)(3).

The City argues that Fed. R. Civ. P. 26(g)(1) has been sufficiently complied with

and that any further certification is not necessary. The City also argues that it has

produced all available responsive GPS data, and that it will produce responsive

personnel records once a protective order is in place. Currently, based on the City’s

responses and production, it is clear that it has met the requirements in Fed. R. Civ. P.

26(g)(1). The Court denies Plaintiff’s request for any further certification of

completeness from the City. Further, 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.

v. Plaintiff’s Requests for Production Nos. 22, 23, 24, 25, 26, 32, 39,

40, 41, 42, 43, 44

The City objects to producing responsive material to RFPs Nos. 22, 23, 24, 25, 26,

32, 39, 40, 41, 42, 43, 44 without a protective order in place. The Court entered a

protective order on August 28, 2025, and 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.

The City further objects to RFP No. 22(b)-(f), which requests documents related

to internal affairs investigations of five other South Bend police officers as outside the

scope of Rule 26(b)(1). The Court finds that the same rationale that sustained the City’s

objection to interrogatory No. 6 applies here. The City is excused from providing any

responsive documents to RFP No. 22(b)-(f).

The City also objects to RFP No. 25 as being overbroad and unduly burdensome.

RFP No. 25 requests every document related to training that Timothy Barber received

from the City of South Bend. The City argues that Plaintiff’s request goes far beyond the

production of records reflecting what training Timothy Barber actually received.

Plaintiff argues that the discovery rules do not mandate that Plaintiff specify what sort

of related documents she is seeking from the City. The City has not provided any

further argument as to why it would be unduly burdensome to produce documents

related to Timothy Barber’s training and it does not dispute that his training is relevant

here. Kodish, 235 F.R.D. at 450. Therefore, the City’s objection is overruled and it is

directed to produce any responsive documents not already produced to Plaintiff.

vi. Plaintiff’s Requests for Production Nos. 28 and 35

A dispute as to the meaning of terms between Plaintiff and the City is reflected in

the written discovery that the parties appear to have clarified in their briefings.

Plaintiff’s RFP No. 28 requests all documents related to Timothy Barber’s departure and

whether it was the City’s decision to allow him to resign. The City takes issue with

Plaintiff’s terminology but conveys that it has produced the documents responsive to

RFP No. 28. Plaintiff argues that a motion to compel is proper because the City has not

stated that it has produced all responsive documents. The City has complied with the

requirements in Fed. R. Civ. P. 26(g)(1), which is sufficient to show that its production is

complete. Similarly, the City and Plaintiff take issue with whether there were several

police manuals or one manual referred to by different names. Through their briefing, it

is clear that Plaintiff has sought and obtained a police manual from the City that was

referred to by different names in other documents the City produced. Accordingly, the

Court denies Plaintiff’s motion to compel as moot as to RFP Nos. 28 and 35.

vii. Plaintiff’s Request for Production Nos. 39, 40, 41, 42, 43, 44

The City objects to Plaintiff’s RFP Nos. 39, 40, 41, 42, 43, 44, because it argues that

they are not relevant to any issue in this case. Plaintiff argues that these RFPs are

relevant because they are related to sexual misconduct by any City employees other

than Timothy Barber, and because they are relevant to Plaintiff’s claims for negligent

supervision, training, and retention, and for negligent failure to prevent and report

Barber’s misconduct, as well as relevant to the bias and credibility of the City’s agents,

the City’s failure to exercise reasonable control over Timothy Barber and the other

police officer who failed to prevent or report his misconduct, and to the City’s denial of

the existence of a code of silence with the South Bend police. Plaintiff does not elaborate

on this litany of justifications.

The Court finds that the same rationale that sustained the City’s objection to

interrogatory No. 6 applies here. The City’s objection to providing any responsive

documents to RFP Nos. 39, 40, 41, 42, 43, 44 is sustained.

The City also objected to these requests as improperly vague. Because the City’s

relevancy objections are sufficient to excuse the City from answering these requests for

production, the Court declines to address the City’s vagueness objections at this time.

II. AWARD OF ATTORNEY’S FEES

Finally, Plaintiff argues that the Court must reconsider its earlier order related to

attorney’s fees as clearly erroneous and contrary to law because Plaintiff’s positions

regarding both motions was substantially justified and because an award of attorney’s

fees would be substantially unjust. The City responds and correctly notes that the

Court’s earlier order does not declare whether Plaintiff’s position was substantially

justified, or whether other circumstances would make an award of expenses unjust.

Instead, the Court directed the City to file a statement of its expenses and argue why

they were reasonable. Plaintiff agrees with the City’s interpretation in her reply. With

that in mind the Court, denies this portion of Plaintiff’s motion for reconsideration as

moot.

As for Plaintiff’s first Motion to Compel Against the City of South Bend [DE 29],

consistent with the mandate set forth in Rule 37(a)(5)(A), Defendant the City of South

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

law when making its objections. Defendant further made good faith efforts to answer

Plaintiff’s written discovery. 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.

III. CONCLUSION

Accordingly, Plaintiff’s Motion to Reconsider is GRANTED in part and

DENIED in part. [DE 53]. Plaintiff’s First Motion to Compel Against Defendant City

of South Bend is GRANTED in part and DENIED in part. [DE 29]. The Court declines

to reconsider its earlier grant of the City of South Bend’s Motion for a Protective

Order. [DE 26].

Defendant the City of South Bend is ORDERED to amend its Answers to

Request for Admission No. 1, Plaintiff’s Interrogatory No. 1, as it relates to Request for

Admission No. 1, and Request for Production No. 25 by October 28, 2025. Plaintiff’s

motion to compel as related to Requests for Production Nos. 22, 23, 24, 25, 26, 28, 32,

and 35 is denied as moot. Defendant’s objections to: Plaintiff’s Requests for Admission

Nos. 2, 3, 4, and 7; Plaintiff’s Interrogatory No. 1, as it relates to Plaintiff’s Requests for

Admission Nos. 2, 3, 4, and 7, and Interrogatories Nos. 5 and 6; and Plaintiff’s Requests

for Production Nos. 6, 12, 19, 20, 21, 28, 29, 33, 34, 36, 37, 38, 39, 40, 41, 42, 43, and 44 are

sustained.

SO ORDERED this 15th day of October 2025.

s/Scott J. Frankel

Scott J. Frankel

United States Magistrate Judge