UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

HILLARD ELAM, )

Plaintiff, )

) 

v. ) CAUSE NO. 2:15-CV-287-WCL-JEM 

)

DR . ANDREW LIAW, et. al., )

Defendants. )

OPINION AND ORDER

This matter is before the Court on Defendant Dr. Andrew Liaw’s Motion for Preliminary

Determination of Law and Motion to Compel Plaintiff’s Discovery Responses [DE 15], filed by

Defendant Dr. Andrew Liaw on February 22, 2016. Plaintiff has not responded to the instant Motion

and the time to do so has passed. 

I. Background

On July 15, 2015, Plaintiff filed identical complaints against Defendants in Laporte County

Circuit Court and with the Indiana Department of Insurance raising assorted claims of deliberate

indifference pursuant to 42 U.S.C. § 1983 and the Indiana Medical Malpractice Act. On July 29,

2015, the Laporte County Complaint was removed to the United States District Court for the

Northern District of Indiana. See 28 U.S.C. §§ 1441(a) and 1446. On November 20, 2015, the instant

case was stayed pending resolution of Plaintiff’s complaint before the Indiana Department of

Insurance. 

II. Analysis

In the instant Motion, Defendant Liaw represents that Plaintiff has failed to answer or

otherwise respond to the interrogatories that Defendant Liaw served on Plaintiff on October 27,

2015, in the pending action before the Indiana Department of Insurance. Defendant Liaw further

represents that Plaintiff ignored two reminders that his responses to the interrogatories were due.
Defendant Liaw requests that the Court compel Plaintiff to answer the interrogatories. 

Federal Rule of Civil Procedure 26(b)(1) permits discovery “regarding any nonprivileged

matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Relevancy is

“construed broadly to encompass any matter that bears on, or that reasonably could lead to other

matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v.

Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). A party

objecting to the discovery request bears the burden of “show[ing] why [that] particular discovery

request is improper.” McGrath v. Everest Nat. Ins. Co., 625 F. Supp. 2d 660, 670 (N.D. Ind. 2008).

The Court has broad discretion when deciding discovery matters. Thermal Design, Inc. v. Am. Soc’y

of Heating, Refrigerating & Air-Conditioning Eng’rs, Inc., 755 F.3d 832, 837 (7th Cir. 2014);

Rennie v. Dalton, 3 F.3d 1100, 1110 (7th Cir. 1993)). 

Federal Rule of Civil Procedure 37(a)(1) permits a party to move the court for an order

compelling disclosure or discovery. A party may seek an order to compel discovery when an

opposing party fails to respond to discovery requests or provides evasive or incomplete responses.

Fed. R. Civ. P. 37(a). Similarly, the Indiana Medical Malpractice Act provides that “[a] court having

jurisdiction over the subject matter and the parties to a proposed complaint filed with the

commissioner under this article may . . . compel discovery” in accordance with the Indiana Rules

of Trial Procedure. Ind. Code § 34-18-11-2 (2015); see also Castillo v. Ruggiero, 562 N.E. 2d 446,

452 (Ind. Ct. App. 1990) (holding that an Indiana trial court did not abuse its discretion when it

ordered a party to respond to interrogatories under the Indiana Medical Malpractice Act in a case

proceeding before the Indiana Department of Insurance). 

Local Rule 37 provides that a party “filing any discovery motion must file a separate

certification that the party has conferred in good faith or attempted to confer with other affected

2
parties in an effort to resolve the matter raised in the motion without court action.” N.D. Ind. L.R.

37-1. Although no separate Rule 37-1 certification was filed contemporaneously with the instant

Motion, Defendant Liaw attached as exhibits two letters sent by counsel for Defendant Liaw to

counsel for Plaintiff regarding the outstanding discovery responses. In the second letter, dated

January 28, 2016, counsel for Defendant Liaw stated that he was attempting to resolve the ongoing

discovery dispute, but would be forced to file a motion to compel if Plaintiff did not answer or

otherwise respond to Defendant Liaw’s interrogatories. The Court finds that the two letters

effectively comply with the purpose of Local Rule 37-1 to resolve the discovery dispute without the

Court’s intervention and accordingly, the Court declines to deny the instant Motion solely for the

lack of a separate Rule 37 certification.

Although this case was stayed pending resolution of Plaintiff’s action before the Indiana

Department of Insurance, this Court retains jurisdiction over the parties and subject matter pending

before the Indiana Department of Insurance pursuant to Defendants’ removal and has the authority

to compel discovery under the Indiana Medical Malpractice Act in accordance with the Indiana

Rules of Trial Procedure. See Ind. Tr. P. R. 37(A)(2) and (4) (permitting a party to file a motion to

compel when the opposing fails to answer an interrogatory and allowing for a trial court to grant

such motions and award attorney fees to the prevailing party, if necessary). Defendant Liaw alleges

that he served Plaintiff with interrogatories in the pending insurance claim on October 27, 2015, and

sent Plaintiff subsequent reminders, but Plaintiff did not answer. Since Plaintiff has failed to respond

to this assertion, the Court concludes that Plaintiff has not satisfied his burden of showing “why

[this] particular discovery request is improper” and that granting Defendant Liaw’s request for an

order compelling Plaintiff’s answers to his interrogatories is appropriate under Federal Rule of Civil

Procedure 37(a)(1) and the Indiana Trial Procedure Rule 37(A)(2). See McGrath, 625 F. Supp. 2d

3
at 670. 

Accordingly, the Court hereby GRANTS Defendant Dr. Andrew Liaw’s Motion for

Preliminary Determination of Law and Motion to Compel Plaintiff’s Discovery Responses [DE 15],

and ORDERS Plaintiff Hillard Elam to serve on Defendant Andrew Liaw, on or before April 19,

2016, his full responses to Defendants Andrew Liaw’s first set of interrogatories.

Because the motion to compel is granted, “the court must, after giving an opportunity to be

heard, require the party or deponent whose conduct necessitated the motion, the party or attorney

advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the

motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A); see also Ind. Tr. P. R. 37(A)(4)

(same). Accordingly, if Defendant Andrew Liaw is seeking attorney’s fees or costs, he may FILE,

on or before April 13, 2015, an itemization of its costs and fees, including attorney’s fees, incurred

in making the motion to compel, with Plaintiff Hillard Elam to FILE a response with the Court to

Defendant Liaw’s request for reasonable expenses incurred in making the instant Motion on or

before April 27, 2016. 

This matter remains STAYED pending an opinion from the Indiana medical review panel.

The parties are REMINDED that they must file a status report with this Court on or before

December 1, 2016, informing the Court of the status of the medical review panel opinion.

SO ORDERED this 6th day of April, 2016.

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

4