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John Tallman v. Freedman Anselmo Lindberg LLC

April 2, 2012

JOHN TALLMAN, PLAINTIFF,
v.
FREEDMAN ANSELMO LINDBERG LLC, AND DOES 1-10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:

E-FILED

Monday, 02 April, 2012 04:24:19 PM

Clerk, U.S. District Court, ILCD

OPINION

This matter comes before the Court on Defendant's Motion to Compel Discovery and for Sanctions (d/e 18) (Motion 18); Plaintiff's Motion to Compel (d/e 24) (Motion 24); and Plaintiff's Second Motion to Compel (d/e 31) (Motion 31). For the reasons set forth below, Motion 18 is allowed in part and denied in part, Motion 24 is denied, and Motion 31 is allowed. The Court determines that an award of sanctions in connection with these Motions would be unjust and so the requests for sanctions by both parties are denied. Fed. R. Civ. P. 37(a)(5)(A)(iii). The Court addresses each Motion separately.

MOTION 31

Motion 31 is allowed because Defendant Freedman Anselmo Lindberg LLC (Freedman) did not respond to Motion 31 as required by the Local Rules, and so, is deemed to have no opposition to the Motion. The Certificate of Service on Motion 31 and the Notice of Electronic Filing show that Motion 31 was served electronically on counsel for Defendant Freedman on March 13, 2012. A party must file a response to a motion within fourteen days of service or the party is deemed to have no opposition to the Motion. Local Rule 7.1(B)(2). Freedman's response to Motion 31 was due on March 30, 2012. See Fed. R. Civ. P. 5(b)(2)(E) & 6(d); Local Rule 5.3(D). Freedman has not filed a response. Freedman is deemed to have no opposition to Motion 31, and Motion 31 is therefore allowed. Defendant Freedman is directed to produce all draft suit papers in its file, as set forth in Motion 31, by April 13, 2012.

MOTION 18

Plaintiff John Tallman (Tallman) filed his Complaint (d/e 1) on July 8, 2011. He later secured permission to file a Second Amended Complaint (d/e 26) on February 22, 2012. See Opinion entered February 22, 2012 (d/e 25) (Opinion), at 10. Tallman dropped a number of allegations from the Second Amended Complaint. See Opinion, at 2-6 for a detailed discussion of the differences in the two complaints. On November 2, 2012, Freedman served interrogatories and document requests on Tallman. Many of the interrogatories asked for the basis for the allegations that were dropped from the Second Amended Complaint. Tallman objected to these interrogatories on the ground that they were not relevant because he was going to amend the Complaint. On January 9, 2012, Freedman's counsel attempted to resolve this dispute with Tallman's counsel. Motion 18, at 3. The dispute was not resolved.

On January 19, 2012, Freedman's counsel took Tallman's deposition. Tallman's counsel directed Tallman not to answer some questions. Motion 18 asks the Court to compel responses to the interrogatories and to the unanswered questions posed in the Tallman deposition. Freedman's counsel has not certified that he attempted to resolve the dispute concerning the deposition questions before seeking court action.

Freedman's request regarding the deposition is denied because counsel did not certify that he attempted to confer with Tallman's counsel to obtain the information without court action. A party must attempt to resolve a discovery dispute without court action and provide certification of such before filing a motion to compel. Fed. R. Civ. P. 37(a)(1). Freedman did not attempt to resolve the discovery dispute regarding Tallman's refusal to answer deposition questions. The Court, therefore, denies this portion of Motion 18.

With respect to the interrogatories, Freedman asks the Court to compel answers to Interrogatories 2-6, 9-20 and 24-25. Tallman responds that the Motion should be denied as moot because Tallman has amended the Complaint and removed the allegations to which the interrogatories relate. Freedman responds that the information is relevant to the possibility of Tallman's potential liability for bringing this action in bad faith.

The Court agrees with Freedman that the interrogatories are relevant to the potential issue of bad faith filing. The Act states, "On a finding by the court that an action under this section was brought in bad faith and for the purposes of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs." 15 U.S.C. § 1692k(a)(3). As explained in the Opinion, Tallman made several serious allegations against Freedman, such as use of threats of violence against his person, which he withdrew from the Second Amended Complaint. See Opinion, at 2-6. Tallman's decision to make such allegations provides grounds at the discovery stage to allow Freedman to inquire into the basis for filing for these allegations in the original Complaint.

Tallman also argues that he has already answered the interrogatories through his answers to questions in the deposition. The Court has reviewed the deposition transcript and the interrogatories finds that Tallman has answered most of the interrogatories in the deposition. Tallman answered all of the interrogatories except 5, 6, and 25. Compare Motion, Exhibit D, Plaintiff's Response to Defendant's First Set of Interrogatories, ΒΆΒΆ 2-6, 9-20, and 24-25, with Exhibit E, Deposition of John Tallman (Interrogatory 2 with Deposition at 78-80, 111-15; Interrogatory 3 with Deposition at 82; Interrogatory 4 with Deposition at 84-86; Interrogatory 9 with Deposition at 93-94; Interrogatory 10 with Deposition at 94-95; Interrogatory 11 with Deposition at 95-96; Interrogatory 12 with Deposition at 96; Interrogatory 13 with Deposition at 97; Interrogatory 14 with Deposition at 98-99; Interrogatory 15 with Deposition at 84-86; Interrogatory 16 with ...


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