Russell A. Kolsrud, #004578 Brad M. Thies, #021354 N ORLING, K OLSRUD, S IFFERMAN & D AVIS, P.L.C. 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 (480) 505-0015 Attorneys for Defendant ValueOptions, Inc. IN THE UNITED STATES DISTRICT COURT
7 DISTRICT OF ARIZONA 8 Shannon Michael Clark, 9 Plaintiff, 10 v. 11 ValueOptions, Inc., 12 Defendant. 13 14 Defendant Dr. Thomas Nathan Crumbley ("Crumbley"), by and through counsel, 15 hereby files his Response to Plaintiff
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. FACTS
MEMORANDUM OF POINTS AND AUTHORITIES
Plaintiff
Addendum attached a copy of the discovery responses and contained various and unsupported allegations including, but not limited to, the refusal to participate in discovery and the provision of misleading responses. [Id]. The Addendum again requested entry of
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default judgment as a sanction.1 [Id]. Plaintiff made no further attempt to resolve any perceived dispute after responses were provided prior to filing the Addendum. II. PLAINTIFF
communications that attempt to reach an agreement or compromise to a perceived dispute. Hoelzel v. First Select Corporation, 214 F.R.D. 634, 636 (D.Col. 2003). To that end, the certification required by Rule 37 assumes the important function of allowing the parties, through negotiation, to address discovery disputes in a way that eliminates the need for judicial intervention. Id. at 635. No true dispute existed since Crumbley intended to and did provide responses. Plaintiff further failed to substantively comply with the good faith requirement of Rule 37 prior to filing the Motion.
As is common practice among attorneys, counsel forwarded a verification along with the discovery responses to Dr. Crumbley for his signature and notarization to be returned to counsel and then forwarded to Plaintiff. Even though Dr. Crumbley has verified the accuracy of the responses to counsel, counsel has not received the signed verification for return to Plaintiff but will forward it as soon as it is received. 3
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In performing a Rule 37 analysis, it is imperative that the Court look beyond the quantity of contacts and examine their quality since quality is far more important than quantity. Hoelzel, supra at 636. Sending a letter to an opposing party demanding
compliance with discovery requests is not an earnest attempt to meet and confer in good faith. Soto v. City of Concord, 162 F.R.D. 603, 623 (N.D. Cal. 1995). The certification must evidence communication between the parties as to how the requests can be narrowed to avoid objections; that there was deliberation, conversations, exchange of views; and that there was conversation between the parties demonstrating a genuine attempt to resolve the dispute without judicial intervention. Id. In this regard, conclusory affidavits that a party conferred in good faith, without more, do not comply with the requirement. Tri-Star Pictures, supra at 99.2 In the present matter, Plaintiff's two written communications made prior to filing the Motion indicate only that he intended to unreasonably refuse further extensions despite reasonable efforts to provide the discovery. The communications failed to discuss the substantive issues and further evidence the lack of any reasonable attempt by Plaintiff to resolve the dispute prior to filing his Motion. Conversely, the three letters from Crumbley's counsel clearly evidence reasonable requests for brief extensions (barely exceeding 30 days from the original due date) that were required to provide the responses. Those same communications indicated the clear intent to provide responses to discovery as soon as counsel and Crumbley could properly confer. In fact, the responses were mailed to Plaintiff on August 28, 2006. Plaintiff also fails demonstrate he suffered any prejudice resulting
An affidavit averring that a good faith attempt was made and attaching four letters evidencing communication between the parties was insufficient to support the necessary good faith attempt. Tri-Star Pictures, supra at 99. Numerous communications evidencing notification of an impending motion to compel but lacking information demonstrating substantive communications between the parties attempting to resolve the dispute were insufficient. Id.
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from the brief delay in receiving the responses. Realistically, te could suffer no prejudice since no trial date has been set and the Court has yet to set a discovery cutoff in regard to Crumbley. Simply put, Plaintiff has failed to meet his burden to establish he made a good faith attempt to resolve the perceived discovery dispute prior to filing his Motion and has suffered no prejudice. As such, this Court should deny the entire Motion. III. PLAINTIFF
insufficient to justify granting Plaintiff's requested sanctions since the averments in that document are simply wrong or, at best, are themselves insufficient to demonstrate a good faith attempt to resolve the dispute. Plaintiff mistakenly asserts that no discovery responses were provided for Crumbley since they were actually provided by Defendant ValueOptions. While counsel also
represents Defendant ValueOptions, this assertion is simply wrong as the record clearly demonstrates that counsel also represents Crumbley and the responses were filed on his behalf. [Doc. 238 and 252, Exhibit A]. Counsel is in the process of receiving the signed verification from Dr. Crumbley and will forward it to Plaintiff upon receipt. The Addendum also takes exception to objections made in response to some of the requests. However, the requests are clearly objectionable and Plaintiff has made no further attempt to resolve this perceived dispute prior to filing the Addendum. This clearly fails to meet Rule 37's requirement that Plaintiff make a good faith attempt to resolve the dispute relating to perceived deficiencies in the responses prior to seeking sanctions. As with Plaintiff
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Both the Motion and the Addendum request that this Court impose default judgment against Crumbley. Though it is Crumbley
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consider other sanctions, they simply would not be appropriate based on Plaintiff
By: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
/s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc.
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Original of the foregoing e-filed with the Clerk this 11 th day of September, 2006 and Copy hand-delivered this 12 th day of September, 2006, to: The Honorable Earl H. Carroll United States District Court 401 West Washington Street Phoenix, AZ 85003 The Honorable Hector C. Estrada United States District Court 405 West Congress Street Tucson, AZ 85701 Copy of the foregoing mailed this 12 th day of September, 2006, to: Shannon M. Clark #113372 ASPC-Tucson-Santa Rita P.O. Box 24406 Tucson, Arizona 85734-4406 Plaintiff pro per /s/ Pam Whitmore
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