United States District Court, S.D. Ohio, Eastern Division, Columbus
IN RE OHIO EXECUTION PROTOCOL LITIGATION This document relates to Plaintiff Cleveland Jackson
A. Sargus, Jr. District Judge.
DECISION AND ORDER GRANTING MOTION TO COMPEL
Michael R. Merz United States Magistrate Judge.
consolidated method-of-execution case under 42 U.S.C. §
1983 is before the Court on Defendants' Motion to Compel
Discovery (ECF No. 2629), Plaintiff's Response (ECF No.
2656) and Defendants' Reply (ECF No. 2670).
served a Request for the Production of Documents on August
13, 2019, which requested production of “[a]ll
documents, communications, and materials regarding or related
to Dr. Daniel Buffington that Plaintiff has received in
response to any subpoenas issued in connection with this
litigation.” (ECF No. 2345-2, PageID 114355.)
report that Plaintiff has not produced any responsive
documents nor provided a formal written response to the
Request (Motion, ECF No. 2629, PageID 131323.) Upon inquiry
on September 27, 2019, Plaintiff's counsel responded
“that the requested documents were no longer relevant
in light of the Court's decision not to allow Dr.
Buffington to testify at the upcoming preliminary injunction
hearing.” Id. at PageID 131325, citing A.
Rusnak email, ECF No. 2629-2.
2:11-cv-01016-EAS-MRM Doc #: 2678 Filed: 12/06/19 Page: 2 of
4 PAGEID #: 132709 Defendants argue that Plaintiff's
failure to respond formally constitutes a waiver of any
objection per Fed.R.Civ.P. 34(b)(2)(C) and that
“Plaintiff's position - that he need not produce
the requested documents because they are not relevant and
they would only be used for impeachment - is contrary to
controlling law.” (Motion, ECF No. 2629, PageID 131326,
citing Varga v. Rockwell Int'l Corp., 242 F.3d
693, 697 (6th Cir. 2001)).
opposes the Motion on the grounds he reasonably believed a
response was not necessary because Dr. Buffington had been
excluded from testifying (Response, ECF No. 2656, PageID
131719-22). Plaintiff also disputes the relevance of the
requested documents and rests on the Court's prior order
that documents intended to be used for impeachment only need
only be filed by 6:00 p.m. on the day of the hearing in which
they are used. Id. at PageID 131724, citing Order,
ECF No. 2441, PageID 117410.
34(b)(2)(A) provides in mandatory terms that a “party
to whom the request [for production] is directed must respond
in writing within 30 days after being served . . .” The
response is required to “state with specificity the
grounds for objecting to the request, including the
reasons.” Fed.R.Civ.P. 34(b)(2)(B). While Rule 34 does
not specify a consequence for failure to comply with the
requirement for a written response, Defendants refer the
Court to the Advisory Committee notes to Rule 34 which state
“the procedure provided in Rule 34 is essentially the
same as that in Rule 33, as amended . . .”
(Fed.R.Civ.P. 34(b) advisory committee's note to 1970
Amendment). Rule 33(b)(4) provides in relevant part that
“[a]ny ground not stated in a timely objection is
waived unless the court, for good cause, excuses the
failure.” Fed.R.Civ.P. 33(b)(4)
Essex Ins. Co. v. Neely, 236 F.R.D. 287 (D. W.Va.
2006), cited by Defendants (Motion, ECF No. 2629, ECF No.
131327), Magistrate Judge James E. Seibert relied on a
proposition of law from the other case cited by Defendants,
Pulsecard v. Discover Card Servs., Inc., 168 F.R.D.
295, 303 (D. Kan. 1996), to wit, that a failure to timely
object to a document request waives any objection. His logic
was the same as Defendants: the 1970 Advisory Committee note
suggests the two rules are “essentially the
same.” Essex, 236 F.R.D. at 291. Magistrate
Judge Seibert also relied on a Local Rule which expressly
stated that sanction. In Pulsecard, Magistrate Judge
Rushfelt applied the same logic. 168 F.R.D. at 303.
no Sixth Circuit authority is cited for incorporation of the
Rule 33(b)(4) waiver provision into Rule 34(b)(2)(C), doing
so is consistent with the usual rule that failure to make an
objection in a timely manner forfeits the objection and the Court
agrees with Defendants that it should be done.
the incorporated rule also has a good cause exception. In
this case, Plaintiff has shown good cause for not having
responded in the time required by the Rule: a good faith
belief that materials related to Dr. Buffington were no
longer relevant, given his exclusion from the September 24,
2019, hearing, combined with the time pressure under which
the Court and parties were operating at the time (A. Rusnak
email, ECF No. 2629-2). Therefore the Court concludes that,
although the forfeiture provision of Fed.R.Civ.P. 33(b)(4)
should generally apply to failure to object to document
requests, in this instance Plaintiff has shown good cause not
to have responded and his relevance objection will not be
Plaintiff's relevance objection is not well taken.
Although Dr. Buffington was excluded from the September 24
hearing, Defendants have evinced an intention to offer him as
an expert in further proceedings in this consolidated case,
including on any renewed motion for injunctive relief from
Plaintiff Cleveland Jackson (Motion, ECF No. 2629, PageID
“impeachment only” objection is also not well
taken. The Order on which Plaintiff's rely was an order
directed to the timing of the filing of hearing exhibits for
the September 24 hearing (ECF No. 2441). It did not purport
to speak to discovery issues at all. Had the Order purported
to excuse either party from producing impeachment materials
in discovery, it would have been squarely in conflict with
Varga, which holds that the supposed rule that a
party may withhold from discovery documents which have
impeachment value only is “patently wrong” and
“nonsense.” 242 ...