UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

MARGARET MARNOCHA, )

Plaintiff, )

)

v. ) CAUSE NO.: 3:16-CV-592-PPS-JEM

)

CITY OF ELKHART, INDIANA, )

and TIM NEESE, )

Defendants. )

OPINION AND ORDER

This matter is before the Court on a Motion to Compel [DE 38], filed by Plaintiff on May

23, 2018, a Motion to Quash Nonparty Request for Production and Subpoena Duces Tecum [DE 46],

filed by Defendants on July 30, 2018, a Motion for Protective Order [DE 50], filed by Defendants

on August 14, 2018, and a Motion for Enlargement of Time to Respond to Defendants’ Motion for

Summary Judgment [DE 64], filed by Plaintiff on October 2, 2018.

I. Background

Plaintiff’s Amended Complaint alleges that she was unlawfully terminated from her job with

Defendant City of Elkhart working with Defendant Tim Neese. She claims discrimination on the

basis of sex and age as well as violations of her First Amendment right to free speech. Defendants

filed a motion to dismiss which was granted in part and denied in part on June 19, 2017. On July 20,

2017, the Court held a preliminary pretrial conference and set deadlines related to discovery.

On May 23, 2018, Plaintiff filed the instant Motion to Compel, seeking complete discovery

responses from Defendants. Defendants filed a response on May 24, 2018, and the same day Plaintiff

filed a reply along with a Rule 37 Certification. On June 4, 2018, Defendants filed a supplemental

response indicating that they had provided the outstanding discovery to Plaintiff, and on June 13,

2018, Plaintiff filed a surreply arguing that there were still deficiencies in the discovery.
On July 30, 2018, Defendants filed the instant Motion to Quash, requesting that the Court

quash a subpoena served on a nonparty. Plaintiff filed a response on July 31, 2018, and on August

7, 2018, Defendants filed a reply. On August 13, 2018, Defendants filed the instant protective order,

seeking relief from a scheduled deposition.

Defendants filed a motion for summary judgment on September 24, 2018. Plaintiff’s

response is currently due on October 22, 2018, but on October 2, 2018, Plaintiff filed the instant

Motion for Extension of Time requesting that the deadline for her to respond to the motion for

summary judgment be extended until sixty days after the Court’s ruling on a motion to compel she

filed on September 27, 2018.

II. Analysis

Pursuant to Federal Rule of Civil Procedure 26, the scope of discovery is “any nonprivileged

matter that is relevant to any party’s claim or defense. . . . Relevant information need not be

admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of

admissible evidence.” Fed. R. Civ. P. 26(b)(1). Furthermore, the Rule provides that “[r]elevant

information need not be admissible at the trial if the discovery appears reasonably calculated to lead

to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Likewise, “[t]he scope of material

obtainable by a Rule 45 subpoena is as broad as permitted under the discovery rules.” Graham v.

Casey’s Gen. Stores, 206 F.R.D. 251, 253 (S.D. Ind. 2002); see also Teton Homes Europe v. Forks

RV, No. 1:10-CV-33, 2010 WL 3715566, *2 (N.D. Ind. Sept. 14, 2010). 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)). 

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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, see Fed. R. Civ. P. 37(a), and Rule

45(c)(3)(A) allows a court to quash a subpoena based on a timely motion where the subpoena

requires the disclosure of privileged or other protected matter or subjects a person to undue burden.

See Fed. R. Civ. P. 45(c)(3)(A)(iii), (iv). A party objecting to the discovery request bears the burden

of showing why the request is improper. See McGrath v. Everest Nat’l Ins. Co., 625 F. Supp. 2d 660,

670 (N.D. Ind. 2008). The Court has broad discretion when determining matters related to discovery.

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).

A. Motion to Compel

In her Motion to Compel, Plaintiff moves to compel Defendants to respond to Plaintiff’s

interrogatories and requests for production of documents. Plaintiff argues that Defendant City of

Elkhart responded to only three of the twenty-three requests for production, Defendants’ responses

to interrogatories were incomplete, and Defendant Neese failed to respond to Plaintiff’s request for

production. Defendants responded that it took longer than expected to gather the documents to

respond but that they were working with Plaintiff to provide the information, and Plaintiff filed the

Motion before adequately attempting to resolve out the dispute between the parties. In a surresponse filed on June 4, 2018, Defendants reported that they had responded to the pending

discovery requests and request that the Motion be denied as moot. Plaintiff argues that Defendants

did not move for any extensions of time to respond to the discovery requests, nor did counsel for

Defendants respond to Plaintiff’s request for amendment of insufficient responses. In a surreply,

Plaintiff asserts that Defendants’ discovery responses are still inadequate, and specifies a list of

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objections to those responses.

As an initial matter, it is apparent that the parties in this case are having a difficult time

cooperating in discovery. Defendants argue that Plaintiff has not sufficiently attempted to resolve

the discovery dispute without Court involvement. Federal Rule of Civil Procedure 37 provides that

a motion “for an order compelling disclosure or discovery . . . must include a certification that the

movant has in good faith conferred or attempted to confer with the person or party failing to make

a disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1).

Northern District of Indiana Local Rule 37-1 provides, “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 parties in an effort to resolve the matter raised in the motion without court action.”

N.D. Ind. L.R. 37-1. The Court may deny a motion to compel if it is not accompanied by a proper

certification. Id.

In this case, Plaintiff did not include a separate Rule 37 certification with her Motion to

Compel, but does attach correspondence between the attorneys and includes representations

regarding the attempt to communicate with counsel for Defendants regarding outstanding discovery.

The Court does not find the representations of Plaintiff to be fully satisfactory in complying with

the requirements of Federal Rule 37 and Local Rule 37-1, although a separate certification was filed

after Plaintiff became aware of the omission. Noting the repeated difficulty the parties have had in

cooperating in discovery and recognizing that there was at least some attempt to confer prior to

filing the instant Motions, the Court will not deny the Motion for failure to include a Rule 37

certification.

Defendants do not dispute that they did not respond to Plaintiff’s interrogatories and requests

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for production within the time allotted to do so, and they did not request an extension of the deadline

with the Court. In what they term a “supplemental response,” Defendants assert that they served

responses to the outstanding discovery requests after the Motion to Compel was fully briefed, so that

the need to compel responses is moot. Plaintiff filed a sur-reply arguing deficiencies in those

responses. The Local Rules do not contemplate the filing of sur-reply or sur-response briefs. N.D.

Ind. L.R. 7-1(a). Accordingly, “a party in this district may not file a supplemental brief as a matter

of right—a party must first obtain leave of the court and make a showing of some factor justifying

such a filing. Heartland Recreational Vehicles, LLC v. Forest River, Inc., No. 308-CV-00490, 2010

WL 3119487, at *5 (N.D. Ind. Aug. 5, 2010) (citing Brunker v. Schwan’s Home Serv., Inc., No.

2:04-CV-478, 2006 WL 3827046, at *2 (N.D. Ind. Dec. 27, 2006)). In this case, neither party

requested leave to supplement their briefing. The Court will not strike the supplemental findings,

but neither will it address Plaintiff’s new arguments regarding the sufficiency of Defendants’

responses, since the document was filed without affording Defendants the opportunity to correct the

alleged deficiencies or to respond to the arguments. See Carter v. Tennant Co., 383 F.3d 673, 679

(7th Cir. 2004) (finding argument waived when made for the first time in reply brief).

To the extent that Defendants have not fully responded to Plaintiff’s discovery requests, the

instant Motion to Compel is granted, although it is moot to the extent that they provided responses

after the Motion was filed. The Court also reminds the parties of the need to comply with the

applicable Federal and Local Rules and requirements for discovery, and admonishes Defendants to

supplement their discovery responses to provide complete and accurate information to Plaintiff.

B. Motion to Quash

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In their Motion to Quash, Defendants request that the Court quash a subpoena issued to

nonparty the State Bar of Michigan requesting personal information about another non-party on the

grounds that the information sought is unrelated to Plaintiff’s claims, overly-broad, oppressive,

unduly burdensome, and unreasonable. Plaintiff argues that Defendants do not have standing to

object to the personal nature of the information sought in the subpoena or the burden it imposes on

non-parties. Plaintiff argues that the nonparty request for production is not cumulative or duplicative

because they have not been able to obtain the necessary documents and information from Defendants

through discovery. In reply, Defendants reiterate that the information sought through the subpoena

is irrelevant to her claim and Defendants’ defense and so is not within the proper scope of discovery.

Pursuant to Federal Rule of Civil Procedure 45(a)(1)(A)(iii), a party may serve a subpoena

commanding a nonparty to produce designated documents. “[P]retrial discovery is a fishing

expedition and one can’t know what one has caught until one fishes. But [Rule 45(c)] allows the fish

to object, and when they do so the fisherman” must justify his pursuit. Nw. Mem’l Hosp. v. Ashcroft,

362 F.3d 923, 931 (7th Cir. 2004). “When the discovery sought appears relevant, the party resisting

the discovery has the burden to establish the lack of relevance by demonstrating that the requested

discovery is of such marginal relevance that the potential harm occasioned by discovery would

outweigh the ordinary presumption in favor of broad disclosure.” Teton Homes, 2010 WL 3715566,

at *2 (quoting Chavez v. Daimler Chrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002)). Courts

have recognized that an individual possesses an interest against disclosure of matters of personal

concern. Acevedo v. Ace Coffee Bar, Inc., 248 F.R.D. 550, 554 (N.D. Ill. 2008). In considering a

party’s privacy concerns, the Court must consider whether Defendants have a compelling need for

discovery and whether that need outweighs the privacy rights at issue. Id.

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In this case, Plaintiff alleges retaliatory discharge and discrimination related to her previous

employment with Defendant City of Elkhart. The subpoena in question seeks “[a]ll documents

submitted on behalf of the bar application for Jonathan Long.” Plaintiff argues that she is seeking

information about whether a particular person provided a letter of recommendation for Jonathan

Long, another city employee. Plaintiff argues that if the letter was provided to Mr. Long for the

purposes of bar admission, but a similar recommendation was denied to Plaintiff, that fact is relevant

to Plaintiff’s claims. Defendants argue that Mr. Long is not similarly situated to Plaintiff so as to be

a comparator for the purposes of discrimination analysis. However, the question of how similar is

similar enough is a question specific to each case and not to be pre-determined during discovery.

The question of disparate treatment and the need to identify a possible comparator is non-privileged

and relevant to Plaintiff’s claim, but that does not mean that Plaintiff is entitled to the entire bar

application and the personal information it includes. Accordingly, the Court concludes that Plaintiff

may request the information she seeks about whether a particular letter of recommendation was

provided, but the subpoena as currently drafted is too broad and likely to reveal a lot of personal and

private information of a non-party that is not commensurate with the amount of possibly relevant

information. Plaintiff may reissue the subpoena requesting just the information that is possibly

relevant to her claim, but may not seek the entire bar application.

C. Motion for Protective Order

In their request for a Protective Order, Defendants request that the Court enter an order

relieving Defendant Neese from sitting for a deposition scheduled for the date the Motion was filed.

Defendants assert that Defendant Neese had an unforeseen conflict preventing him from attending

the deposition. Defendants represent that immediately upon learning of the conflict, and with time

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to cancel the court reporter, Plaintiff was contacted in an attempt to find a mutually acceptable date

for rescheduling the deposition. As Plaintiff did not respond to the instant Motion and the date for

the deposition has passed, the Court presumes that the parties have fulfilled their obligations to work

together to complete discovery in compliance with the Federal Rules of Civil Procedure, and

reminds them of the requirement that “[a]ttorneys must try in good faith to schedule depositions to

avoid calendar conflicts.” N.D. Ind. L.R. 30-1. The deposition must be completed before the close

of discovery.

D. Motion for Extension of Time

Plaintiff also requests an extension of time to respond to Defendant’s motion for summary

judgment because of the need to obtain additional discovery to include in her response. On

September 27, 2018, Plaintiff filed another motion to compel, arguing that she still has not received

all of the requested discovery, and asserting that Defendants have attempted to circumvent the

discovery process. That motion is not yet fully briefed, but indicates to the Court that the discovery

issues in this case continue.

Federal Rule of Civil Procedure 56(d) provides that a court may defer considering a motion

for summary judgment, deny the motion, or allow additional discovery if a party opposing summary

judgment “shows by affidavit or declaration that, for specified reasons, it cannot present facts

essential to justify its opposition.” Fed. R. Civ. P. 56(d); see also Woods v. City of Chicago, 234

F.3d 979, 990 (7th Cir. 2000) (“Rule 56(f) [now Rule 56(d)] authorizes a district court to refuse to

grant a motion for summary judgment or to continue its ruling on such a motion pending further

discovery if the nonmovant . . . demonstrat[es] why it cannot yet present facts sufficient to justify

its opposition to the motion.”). Plaintiff does not file its motion pursuant to Rule 56(d), and does not

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include an affidavit or declaration. If Defendants’ motion is premature and Plaintiff can show that

the Motion for Summary Judgment should be deferred or denied, or that even more discovery is

needed, then she may file a motion pursuant to Rule 56(d). Given the representations in the current

Motion, the Court finds it appropriate to extend the deadline to file a response to the motion for

summary judgment, with leave to file a motion pursuant to Rule 56(d) if necessary.

III. Conclusion 

For the foregoing reasons, the Court hereby:

(1) GRANTS in part and DENIES as moot in part the Motion to Compel [DE 38] and

ORDERS Defendants to provide any outstanding discovery and to cooperate with

Plaintiff to resolve any ongoing disputes about the thoroughness of their responses;

(2) GRANTS in part and DENIES in part the Motion to Quash Nonparty Request for

Production and Subpoena Duces Tecum [DE 46], and ORDERS that Defendants

may serve only a limited subpoena, as described above;

(3) GRANTS the Motion for Protective Order [DE 50] and ORDERS that Defendant

Neese is excused from attendance at the deposition scheduled for August 14, 2018;

and

(4) GRANTS, for relief different than requested, the Motion for Enlargement of Time

to Respond to Defendants’ Motion for Summary Judgment [DE 64] and ORDERS

that the deadline for Plaintiff to file her response is extended to December 4, 2018.

As Rule 37(a)(5)(A) provides, because 

the motion is granted – or . . . the disclosure or requested discovery

[wa]s provided after the motion was filed – the court must, after

giving an opportunity to be heard, require the party . . . whose

conduct necessitated the motion, the party or attorney advising that

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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). Accordingly, the Court ORDERS Plaintiff to FILE, on or before

October 19, 2018, an itemization of its costs and fees, including attorney’s fees, incurred in making

the Motion to Compel along with argument as to why those expenses are reasonable in this situation.

The Court ORDERS Defendants to FILE a response by November 2, 2018, and Plaintiff to file a

reply, if any, by November 9, 2018.

SO ORDERED this 4th day of October, 2018.

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record 

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