IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

United States of America, :

Plaintiff, :

v. : Case No. 2:12-cv-1034

John D. Allen, individually and : JUDGE GEORGE C. SMITH

doing business as Magistrate Judge Kemp

Allen & Associates, :

Defendants. 

OPINION AND ORDER

This matter is before the Court to consider a motion to

compel responses to discovery requests filed by Plaintiff the

United States of America. (Doc. #20). For the following

reasons, the motion to compel will be granted.

 I. Background 

In its motion, the United States moves to compel Defendant

John D. Allen to respond to its first set of interrogatories and

requests for production of documents, first set of requests for

admission, and second set of interrogatories. The United States

asserts that Mr. Allen has not provided the requested discovery

despite multiple requests. According to the United States, Mr.

Allen did not respond to its first set of interrogatories and

requests for production of documents, aside from sending its

counsel two “frivolous, undated” letters. Id. at 1-2. As to the

requests for admission and interrogatories, the United States

contends that Mr. Allen “wrote on each: ‘Request Denied. Please

leave me alone!’”. Id. at 2. The United States asserts that Mr.

Allen did not otherwise respond to the request but instead

“enclosed a portion of a post from an internet website.” Id.

On June 25, 2013, the United States filed its motion to

compel and attached copies of its discovery requests. Mr. Allen

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has not filed an opposition to the motion to compel.

II. Discussion

As an initial matter, the Court notes that S.D. Ohio Civ. R.

37.1, which supplements the procedures mandated by Fed. R. Civ.

P. 37, provides that discovery-related motions shall not be filed

unless all extrajudicial means to resolve the differences have

been exhausted. Once such extrajudicial means are exhausted, a

party may then seek an informal telephone conference with the

Court. See Watson v. Citi Corp., No. 2:07–cv–0777, 2008 WL

3890034, at *2 (S.D. Ohio Aug. 19, 2008). If, after the informal

telephone conference, the dispute remains unresolved, the party

seeking the discovery may then file a motion to compel pursuant

to Fed. R. Civ. P. 37(a). See S.D. Ohio Civ. R. 37.2. The

motion to compel shall be accompanied by a supporting memorandum

and a certification informing the Court of the extrajudicial

means that have been attempted to resolve the dispute. See id. 

Here, the United States contends that it has made a good

faith effort to resolve the discovery dispute without judicial

intervention and Mr. Allen has responded only with frivolous

correspondence. According to the United States, “Allen’s

repeated refusal to participate in discovery and other courtordered requirements (namely, preparing a Rule 26(f) Report and

the scheduling conference) indicates that extrajudicial means of

resolving disputes will likely be futile.” (Doc. #20 at 1). In

support of the motion, the United States attached a declaration

of attorney Daniel Applegate which outlines the efforts it has

undertaken to obtain the requested discovery. Id. at Ex. 1. The

Court finds that the efforts of the United States constitute an

attempt to resolve the discovery dispute through extrajudicial

means and, accordingly, it will consider the motion to compel on

its merits.

The general principles involving the proper scope of

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discovery are well known. The Federal Rules of Civil Procedure

authorize extremely broad discovery. See United States v.

Leggett & Platt, Inc., 542 F.2d 655, 657 (6th Cir. 1976), cert.

denied 430 U.S. 945, 97 S. Ct. 1579, 51 L. Ed.2d 792 (1977). 

Therefore, Fed. R. Civ. P. 26 is to be construed liberally in

favor of allowing discovery. See Dunn v. Midwestern Indem., 88

F.R.D. 191, 195 (S.D. Ohio 1980). Any matter that is relevant,

in the sense that it reasonably may lead to the discovery of

admissible evidence, and is not privileged, can be discovered. 

The concept of relevance during discovery is necessarily broader

than at trial, Mellon v. Cooper–Jarrett, Inc., 424 F.2d 499, 500

(6th Cir. 1970), and “[a] court is not permitted to preclude the

discovery of arguably relevant information solely because if the

information were introduced at trial, it would be ‘speculative’

at best.” Coleman v. American Red Cross, 23 F.3d 1091, 1097 (6th

Cir. 1994).

Information subject to disclosure during discovery need not

relate directly to the merits of the claims or defenses of the

parties. Rather, it may also relate to any of the myriad of

fact-oriented issues that arise in connection with the

litigation. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,

98 S. Ct. 2380, 57 L. Ed.2d 253 (1978). On the other hand, the

Court has the duty to deny discovery directed to matters not

legitimately within the scope of Rule 26, and to use its broad

discretionary power to protect a party or person from harassment

or oppression that may result even from a facially appropriate

discovery request. See Herbert v. Lando, 44l U.S. 153, 99 S. Ct.

1635, 60 L. Ed.2d 115 (1979). Additionally, the Court has

discretion to limit or even preclude discovery which meets the

general standard of relevance found in Rule 26(b)(1) if the

discovery is unreasonably duplicative, or the burden of providing

discovery outweighs the benefits, taking into account factors

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such as the importance of the requested discovery to the central

issues in the case, the amount in controversy, and the parties'

resources. See Fed. R. Civ. P. 26(b)(2). Finally, the Court

notes that the scope of permissible discovery which can be

conducted without leave of court has been narrowed somewhat by

the December 1, 2000 amendments to the Federal Rules. Rule 26(b)

now permits discovery to be had without leave of court if that

discovery “is relevant to the claim or defense of any party ....” 

Upon a showing of good cause, however, the Court may permit

broader discovery of matters “relevant to the subject matter

involved in the action.” Id.

There is no question that “‘[t]he proponent of a motion to

compel discovery bears the initial burden of proving that the

information sought is relevant.’” Guinn v. Mount Carmel Health

Sys., No. 2:09-cv-226, 2010 WL 2927254, *5 (S.D. Ohio July 23,

2010), quoting Clumm v. Manes, Case No. 2:08–cv–567 (S.D. Ohio

May 27, 2010) (King, J.); see also Berryman v. Supervalu

Holdings, Inc., No. 3:05-cv-169, 2008 WL 4934007 (S.D. Ohio Nov.

18, 2008) (“At least when the relevance of a discovery request

has been challenged the burden is on the requester to show the

relevance of the requested information.”) (internal citation

omitted). When the information sought appears to be relevant,

the party resisting production has the burden of establishing

that the information either is not relevant or is so marginally

relevant that the presumption of broad disclosure is outweighed

by the potential for undue burden or harm. See Vickers v.

General Motors Corp., No.07-2172, 2008 WL 4600997, *2 (W.D. Tenn.

September 29, 2008). 

Here, the relevance of the discovery requests is apparent,

given that the United States brought this action seeking to

enjoin Mr. Allen from, among other activities, preparing federal

tax returns for others, promoting any plan or arrangement that

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advises or helps taxpayers to violate internal revenue laws or

unlawfully evade the assessment or collection of their federal

tax liabilities, and engaging in any other conduct that is

subject to penalty under the Internal Revenue Code or that

interferes with the proper administration and enforcement of

internal revenue laws. (Doc. #1). Consequently, Mr. Allen bears

the burden of establishing that the information either is not

relevant or is so marginally relevant that the presumption of

broad disclosure is outweighed by the potential for undue burden

or harm. Mr. Allen has offered no reason for his failure to

provide discovery, has not provided any specific objection to any

discovery request, and has not opposed the motion to compel. 

Accordingly, Mr. Allen has not made the requisite showing. Based

on the foregoing, the motion to compel will be granted and Mr.

Allen will be directed to provide the requested discovery to the

United States within fourteen days. 

Finally, Mr. Allen is cautioned that Rule 37(b)(2)(A)

authorizes the imposition of sanctions, including granting a

default judgment if a party fails to obey an order to provide or

permit discovery. Fed. R. Civ. P. 37(b)(2)(a)(v). That type of

sanction is “the sanction of last resort.” Beil v. Lakewood

Eng’g and Mfg. Co., 15 F.3d 546, 552 (6th Cir. 1994); Gray Cas. &

Sur. Co. v. Holton, No.09-2840AV, 2011 WL 679930, *2 (W.D Tenn.

Jan. 18, 2011). In determining whether to impose such a

sanction, courts consider: “(1) whether the party acted with

willfulness, bad faith or fault; (2) whether prejudice resulted

from the discovery violation; (3) whether the party had been

warned that her conduct could lead to extreme sanctions; and (4)

whether less drastic sanctions were previously imposed or

considered.” Holton, 2011 WL 679930 at *2, citing Freeland v.

Amigo, 103 F.3d 1271, 1277 (6th Cir. 1997); Bass v. Jostens,

Inc., 71 F.3d 237, 241 (6th Cir. 1995); Bank One of Cleveland,

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N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir. 1990). Mr. Allen is

hereby warned that his failure to provide discovery responses

could result in the imposition of sanctions, including the entry

of a deault judgment against him. 

III. Conclusion

For the reasons set forth above, the motion to compel

responses to discovery requests filed by Plaintiff the United

States of America is granted (Doc. #20). Mr. Allen shall provide

the requested discovery to the United States within fourteen

days.

IV. Procedure on Objections

Any party may, within fourteen days after this Opinion and

Order is filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the Order or

part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the objecting party are due seven days thereafter. 

The District Judge, upon consideration of the motion, shall set

aside any part of this Order found to be clearly erroneous or

contrary to law.

This Opinion and Order is in full force and effect,

notwithstanding the filing of any objections, unless stayed by

the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp 

United States Magistrate Judge

 

 

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