Cohen v. City of Newton ( 2008 )

MEMORANDUM AND ORDER ON MOTION TO COMPEL FURTHER DOCUMENTS (# 79)

COLLINGS, United States Magistrate Judge.

Upon a review of the papers filed, it appears that defendants’ counsel did not respond to the plaintiffs counsel’s attempts to conference the discovery disputes set forth in plaintiffs motion to compel before the motion was filed.¹ Plaintiffs counsel avers that he attempted to set up such a conference with defendants’ counsel on two occasions before filing the motion and that defendants’ counsel simply did not respond. See # 79, pp. 3-4. In their Opposition, Etc. (# 81), defendants’ counsel does not contradict plaintiffs counsel’s averments; in fact, the subject is not even mentioned. Consequently, the Court accepts plaintiffs counsel’s averments as true.

Defendants’ failure to respond is in violation of the spirit of the Federal Rules of Civil Procedure. See Rule 37(a)(2), Fed.R.Civ.P. Moreover, the failure is in direct violation of the Local Rule 37.1 and is sanctionable. L.R. 37.1(A) provides, in pertinent part: “Failure of opposing counsel to respond to a request for a discovery conference shall be grounds for sanctions, which may include automatic allowance of the motion.”

Accordingly, since there has been no attempt by defendants’ counsel to explain or justify the failure to respond to the request for a conference, IT IS ORDERED, pursuant to L.R. 37.1(A), that Plaintiffs Motion to Compel Further Documents (# 79) be, and the same hereby is, AUTOMATICALLY ALLOWED. The defendants are ORDERED, pursuant to Rule 37(a)(2), Fed.R.Civ.P., to produce to counsel for the plaintiff, on or before the close of business on March 21, 2008, copies of all documents sought by the motion to compel which are within the defendants’ possession, custody and/or control.

Failure to comply with the within Order shall subject the defendants to one or more of the sanctions set forth in Rule 37(b)(2), Fed.R.CivJP.

1 . So far as appears, there was no attempt by defendants' counsel to schedule a conference to resolve the disputes after the motion was filed either.