United States District Court, E.D. Wisconsin
AARON L. JACOBS, JR., Plaintiff,
D. WICKLUND, et al., Defendants.
DECISION AND ORDER
William C. Griesbach, Chief Judge United States District
Aaron Jacobs, who is representing himself and is currently an
inmate at the Menominee Tribal Jail, filed this action under
42 U.S.C. § 1983, alleging violations of his civil
rights. This matter comes before the court on Jacobs'
motion for an order extending the discovery and summary
judgment deadlines (ECF No. 22), as well as his motion to
compel discovery and waive discovery costs or, in the
alternative, to have counsel appointed for him (ECF No. 23).
For the reasons stated below, Jacobs' motions to compel
discovery and for an extension of time will be granted, but
his motion to appoint counsel will be denied.
dispute arises out of Jacobs' First Request for
Production of Documents and his First Set of Interrogatories
and Request for Production of Documents. The parties agree
that Jacobs' discovery requests were served on Defendants
Matthew Dunn and Derek Wicklund on December 17, 2017. ECF No.
25 at 2; ECF No. 22 at 1. On February 24, 2018, Jacobs
received a responsive letter dated February 22, 2018, from
Defendants. ECF No. 25 at 3-4; ECF No. 22 at 3. The letter
explained that Defendants had identified approximately 2, 800
documents responsive to his requests. ECF No. 23-1. At a rate
of $0.10 per page for copies of those documents, plus $40.00
for mailing costs and $9.00 for a flash drive containing
responsive audio and video files, the letter explained that
responding to Jacobs' discovery requests would cost $329
and informed him that the documents and flash drive would be
mailed as soon as he submitted a payment in that amount.
now moves this court to compel Defendants to produce the
documents responsive to his discovery requests without
requiring him to reimburse Defendants for the discovery costs
in advance. ECF No. 23 at 2-3. Defendants counter that the
court should deny Jacobs' motion to compel and waive
discovery costs on the grounds that he can afford to pay the
$329 cost. ECF No. 25 at 4. They note that Jacobs received
$50, 000 on December 18, 2017, in a settlement of a different
suit he brought against Brown County. Id. Jacobs
explained in his motion how he has spent approximately $48,
356 of those settlement proceeds, including $2, 176 that was
seized from his person when he was detained at the Menominee
Tribal Jail. ECF No. 23 at 2.
federal civil litigation, “[t]here is a presumption
that ‘the responding party must bear the expense of
complying with discovery requests.'” Hagemeyer
N. Am., Inc. v. Gateway Data Scis. Corp., 222 F.R.D.
594, 600 (E.D. Wis. 2004) (quoting Oppenheimer Fund, Inc.
v. Sanders, 437 U.S. 340, 358 (1978)). Under Federal
Rule of Civil Procedure 26(c)(1)(B), however, “[t]he
court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense, including . . . specifying terms,
including time and place or the allocation of expenses, for
the disclosure or discovery.” Such an order from the
court may “condition discovery on the requesting
party's payment of the costs of discovery.”
Oppenheimer, 437 U.S. at 358. “The party
opposing discovery must show good cause for its refusal and,
thus, bears the burden of proof.” Hagemeyer,
222 F.R.D. at 600 (citing Oppenheimer, 437 U.S. at
have not made any showing that bearing the $329 cost of
producing Jacobs' requested discovery imposes an undue
burden on them. They have already identified the responsive
documents, and the costs for which they seek reimbursement
are apparently only for materials and mailing. The sole
argument they make in favor of shifting the production costs
to Jacobs is that he can afford the $329 payment because of
his recent settlement. ECF No. 25 at 4. Nothing about that
argument provides the court with any information about the
burden that the cost of fulfilling Jacobs' request places
on Defendants, and the $329 cost identified by Defendants
does not, on its face, seem exorbitant or unduly burdensome.
motion to compel production of the documents will therefore
be granted. Defendants must within ten days provide Jacobs
with copies of the documents and flash drive identified in
their February 22, 2018 letter, and Jacobs need not reimburse
them for the $329 cost of doing so. Nothing about this order,
however, precludes Defendants from later asserting that those
$329 in expenses are taxable costs under Federal Rule of
Civil Procedure 54(d), if they are ultimately the prevailing
parties in this action.
addition to his motion to compel, Jacobs filed a motion for
an extension of the deadlines to complete discovery and file
summary judgment motions. ECF No. 22. Jacobs filed his
motions on March 5, 2018. The deadline to complete discovery
was March 5, 2018, and the deadline to file dispositive
motions was April 3, 2018. ECF No. 18 at 1. Defendants take
no position on Jacobs' motion for an extension of time.
ECF No. 25 at 5. Jacobs' motion for extensions of time
will therefore be granted. All discovery shall be completed
no later than May 7, 2018, and motions for summary judgment,
together with their briefs, shall be filed no later than June
Jacobs' motion to compel requests the alternative remedy
of appointment of counsel. Because Jacobs' motion to
compel discovery will be granted, the court need not address
this alternative request for relief, and his motion will
therefore be denied without prejudice. In any event, this
motion would be denied for the reasons set forth in the
court's February 28, 2018 order denying his previous
motion for appointment of counsel. ECF No. 21.
IS THEREFORE ORDERED that Jacobs' motion to
compel discovery and waive the $329 cost (ECF No. 23) is
GRANTED. Defendants must within ten days
provide Jacobs with copies of the documents and flash drive
identified in their February 22, 2018 letter, and Jacobs need
not reimburse them for the $329 cost of doing so.
IS FURTHER ORDERED that Jacobs' motion to
appoint counsel (ECF No. 23) is DENIED
IS FURTHER ORDERED that Jacobs' motion for an
extension of time (ECF No. 22) is GRANTED.
All discovery shall be completed no later than May 7,
2018, and motions for summary judgment, together