Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hanson v. Van Ermen

United States District Court, E.D. Wisconsin

June 28, 2016

DANIEL L. HANSON, Plaintiff,
v.
SEAN M. VAN ERMEN, et al., Defendants.

          ORDER

          LYNN ADELMAN District Judge.

         Plaintiff Daniel Hanson, a Wisconsin state prisoner, filed a motion to compel on May 27, 2016, which is now fully briefed and ready for decision[1]. Also before me are two motions filed by defendants: a motion for protective order and a motion to strike, both of which were filed on June 10, 2012.

         On February 2, 2016, at plaintiff’s request, I extended the discovery deadline from February 19, 2016, to April 19, 2016. On February 7, 2016, plaintiff served defendant Van Ermen with discovery requests consisting of eight requests for production, zero interrogatories, and eighty items styled as requests for admission. According to Van Ermen, the requests for admission read more like interrogatories. Van Ermen timely responded. He states that he “answer[ed] the items styled as requests for admission when [he was] able to understand such requests, and produc[ed] non-privileged documents within [his] custody, possession, and/or control when not otherwise objected to.” (Docket #102 at 2).

         On April 13, 2016, again at the plaintiff’s request, I extended the discovery deadline from April 19, 2016, to June 3, 2016. Plaintiff served his second set of discovery requests on Van Ermen on April 15, 2016. These requests again contained eight requests for production and zero interrogatories; they also contained an additional forty items styled as requests for admission. Van Ermen states that these additional requests for admission also read like interrogatories. Despite believing many of the requests were duplicative and confusing in nature, Van Ermen timely responded to all of them.

         On May 26, 2016, just one week before the discovery deadline of June 3, 2016, plaintiff filed this motion to compel, which included an additional 194 items styled as requests for admission.

         Plaintiff’s Motion to Compel

         Van Ermen argues that plaintiff’s motion should be denied because: (1) he has already informed plaintiff that the documents he has requested in his motion are not in his custody, possession, or control; (2) discovery is closed and the third set of discovery requests was untimely; (3) the purported requests for admission are actually interrogatories and therefore exceed the allowed number of interrogatories; (4) he has already responded to the requests that he could understand and were not argumentative; and (5) forcing him to respond to additional requests would cause him annoyance, oppression, and undue burden and expense that are out of proportion to the needs of this case.

         As a threshold matter, the court concludes that plaintiff’s third set of discovery requests were untimely. In the scheduling order, I stated that, “All requests for discovery shall be served by a date sufficiently early so that all discovery is completed no later than the [deadline].” (Docket #54) (emphasis added). Plaintiff served his most recent set of discovery requests on May 26, 2016, eight days before the revised discovery deadline of June 3, 2016. Because the Federal and local rules allow a party thirty days to respond to requests for admission, there was inadequate time for Van Ermen to respond to plaintiff’s third set of discovery before the discovery deadline. As Van Ermen noted, if plaintiff wanted him to respond to additional requests for admission, such requests should have been served on defendant no later than May 4, 2016. Van Ermen and Amundson are not required to respond to plaintiff’s third set of discovery requests.

         That, however, does not resolve plaintiff’s motion to compel because, as Van Ermen has noted, plaintiff’s third set of discovery requests was largely duplicative of discovery that Van Ermen already responded to. In fact, according to plaintiff, the third set of discovery requests is actually a resubmission of his second set of discovery requests, which he re-filed because he was not satisfied with the original responses Van Ermen gave him on May 18, 2016.

         It appears that Van Ermen timely responded to plaintiff’s second set of discovery requsts. He states that, to the extent he understood the requests, he responded to them and produced documents that were in his possession, custody, or control. To the extent he did not understand the requests, he indicated that in his response. It is not entirely clear, but it does not appear that plaintiff attempted to clarify his requests or confer with Van Ermen about his responses.

         The court notes that Civil Local Rule 37 requires that anyone who files a motion to compel discovery to file, along with the motion, “a written certification by the movant that, after the movant in good faith has 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, the parties are unable to reach an accord.” (Civil L. R. 37, E.D. Wis.) That’s a long way of saying that a plaintiff needs to first discuss a dispute with the defendant before asking the court to intervene, and that if he can’t work out the dispute with the defendant and needs to resort to a motion to compel, he must provide the court with proof that he tried to work it out with the defendant first.

         The court understands that an incarcerated plaintiff cannot simply pick up the phone and call counsel for Van Ermen, nor can he send counsel an e-mail. But he can write to opposing counsel. The plaintiff has not attached to his motion to compel any evidence indicating that he tried to work out this dispute with Van Ermen’s counsel. Instead, he just re-filed his discovery, apparently hoping Van Ermen would give different responses.

         Normally, I would require plaintiff and Van Ermen’s counsel to confer before considering plaintiff’s motion, but this case has been pending nearly two years, discovery is now closed, and dispositive motions are due in less than two weeks. In addition, the positions of the parties are clear: plaintiff believes Van Ermen “could have given more effort in answering these questions” (Docket #105 at 9); and Van Ermen believes he adequately responded as required by the rules. Requiring the parties to confer at this point would simply waste additional time and resources.

         After reviewing both plaintiff’s requests and Van Ermen’s responses, I agree that Van Ermen has, for the most part, adequately responded and/or objected to plaintiff’s discovery requests. Van Ermen objected only in those instances where plaintiff’s request was unclear, confusing, or argumentative. In addition, Van Ermen asserts that he has already produced all of the requested ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.