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Lite Source, Inc. v. International Lighting Corp.

United States District Court, Sixth Circuit

December 3, 2013

LITE SOURCE, INC., Plaintiff,


JAMES D. MOYER, District Judge.

Currently pending before the court are several discovery motions (docket nos. 38, 41, 42, 57 and 68) and one discovery dispute briefed in correspondence with the court. In an accompanying order, and for the reasons explained further in this opinion, the court will deny the plaintiff's motion for leave to propound a second set of interrogatories and request for production of documents (docket no. 68), as well as all other pending motions filed by the plaintiff (docket nos. 41, 42, and 57). The court will also deny defendant's motion for leave to extend time to respond to discovery requests (docket no. 38) as moot, but will grant its request that plaintiff promptly supplement its discovery responses to the requests described in defendant's letter dated September 26, 2013.


There are three written rules of federal court procedure at issue in this matter. The first is Federal Rule of Civil Procedure 26(d)(1), which states: "A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except... when authorized by these rules, by stipulation, or by court order. The second is Federal Rule of Civil Procedure 33(a)(1), which states: "Unless otherwise stipulated by the parties or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts." The third is Rule 37.1 of the Joint Local Rules of Civil Practice, which states:

Prior to filing a discovery motion, all counsel must make a good faith effort to resolve extrajudicially any dispute relating to discovery. The Court will not entertain discovery motions unless counsel have conferred - or attempted to confer - with other affected parties in an effort to resolve their dispute.

There is also an unwritten "rule" of practice in the Western District of Kentucky known to those who practice here, namely that reasonable requests for exceptions to the rules ( e.g., to serve interrogatories before the parties' Rule 26(f) discovery conference, or for a mutual increase in the number of interrogatories served) are commonly agreed upon as a matter of course by counsel and, if not, almost always permitted by order of the court after the court's initial Rule 16 scheduling conference, if the party files an appropriate motion and makes a satisfactory explanation that counsel for the parties first attempted in good faith to resolve the request on their own.


One of the first discovery disputes brought to the court's attention was defendant's motion to strike any interrogatories in excess of twenty-five (docket no. 38). Without seeking leave of court, or the agreement of opposing counsel, plaintiff served on defendant 115 interrogatories (including subparts) well in advance of the parties' scheduled Rule 16 conference. Defendant objected to the requests as premature, but nevertheless agreed to respond. When the press of other business caused defendant to request a brief extension of time, however, plaintiff refused to grant the request. Accordingly, defendant filed a joint motion for an extension of time and a request that the court strike any interrogatories in excess of twenty-five (docket no. 38). Two days later, plaintiff sought the permission to serve additional interrogatories that he should have filed before serving the interrogatories to begin with (docket no. 41) and also filed a motion to compel (docket no. 42). On June 21, 2013, the court issued an order, which stated (in its substantive entirety): "[A]ll interrogatories in excess of 25 are struck from plaintiff's requests for interrogatories. Interlight is not required to respond to plaintiff's propounded interrogatories in excess of 25" (docket no. 43).

Following the Rule 16 scheduling conference which took place on July 16, 2013, the magistrate judge (as is his customary practice) issued a scheduling order which clearly stated in bold type,

Motions pertaining to discovery and amendments to this Scheduling Order may not be filed without first having a joint telephonic conference with the Magistrate Judge arranged through his courtroom deputy...

See Sched. Ord., July 16, 2013, at p. 2, ΒΆ (5) (docket no. 46). The reason for this requirement is two-fold: (1) it promotes the most efficient resolution of discovery disputes by making sure they promptly come to the attention of the magistrate judge, who is charged with resolving them and (2) it maximizes the efficient use of both the court's and the parties' resources by requiring the magistrate judge to evaluate which issues require costly and time-consuming written pleading and which can be resolved quickly by means of oral argument over the phone. As a secondary benefit, this requirement permits the magistrate judge to determine whether the parties have complied with Local Rule 37.1 and, if not, to order them to meet in person and try to resolve any disagreements, rather than unnecessarily spend time and money briefing the issue of non-compliance.

On August 28, however, plaintiff disregarded the court's scheduling order and filed a second motion to compel (docket no. 57) without first arranging for a telephonic conference with the magistrate judge. Accordingly, the court promptly ordered that a telephonic conference to discuss pending discovery issues take place ( see docket no. 59). During that conference, counsel for the parties advised the court that they had already resolved some of the issues discussed in their pleadings, but that some still required the court's intervention. Defendant's counsel also advised the court that there also existed an as yet un-briefed dispute regarding the untimeliness and insufficiency of plaintiff's responses to certain of defendant's discovery requests. The magistrate judge advised the parties that it would look to the pleadings to resolve any issues addressed therein, but directed counsel "to submit short letter briefs regarding any remaining issues that require the court's resolution directly to chambers."

Defendant correctly understood the meaning of this language in light of the discussion during the telephonic conference and briefed the issue of the plaintiff's insufficient and late discovery responses. Plaintiff, however, apparently did not fully recall the particulars of the telephonic conference and therefore interpreted the order to require briefing of any unresolved issues that had already been brought to the court's attention via motion practice. Plaintiff made no response to the substance of defendant's letter brief.

Then, on October 31, in violation of Rule 33(a)(1) and the court's prior order stating that defendant is not required to respond to any interrogatories in excess of twenty-five, plaintiff served an additional twenty-two interrogatories (including subparts) on defendant. When defendant reminded plaintiff's counsel of the court's order in response to plaintiff's first violation of Rule 33(a)(1), plaintiff ...

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