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Walsh v. United States

August 22, 2007

RORY M. WALSH, PLAINTIFF
v.
THE UNITED STATES OF AMERICA, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is plaintiff's motion (Doc. 206) requesting that the court reconsider or vacate in part the July 11, 2007 order (Doc. 205) issued by Magistrate Judge Smyser which denied plaintiff's motion to compel the Department of the Navy ("Navy") to produce requested documents.*fn1 For the reasons that follow, the motion to reconsider or vacate will be granted and the motion to compel will be granted in part and denied in part.

Following an April 23, 2007 telephone conference with the parties, the court directed the Navy to respond to plaintiff's discovery requests.*fn2 (See Docs. 184, 192.) The ruling was without prejudice to the Navy's right to object to plaintiff's discovery requests. (See Doc. 192.) After the Navy objected to some of the discovery requests, plaintiff sought a court ruling on the "propriety of the Navy's objections to much of Plaintiff's Fourth Request for Production of Documents."*fn3 (Pl.'s Correspondence dated June 28, 2007.) The order of court dated July 2, 2007 (Doc. 199) referred this issue to Magistrate Judge Smyser.*fn4

After conducting a discovery conference on July 11, 2007, Magistrate Judge Smyser cited Rule 34 of the Federal Rules of Civil Procedure and ruled that "no Order will be entered directed to the United States Department of the Navy in that the United States Department of the Navy is not a party to this civil action." (Doc. 205 at 1-2; see also Tr. at 32-35.)*fn5 The following day, plaintiff filed a motion (Doc. 206) requesting that the court reconsider or vacate in part Magistrate Judge Smyser's ruling. The court will construe this motion as an appeal from a nondispositive order of a magistrate judge.*fn6

Magistrate Judge Smyser correctly found that requests for production of documents to a non-party are not permitted under the Federal Rules of Civil Procedure without a subpoena. See FED. R. CIV. P. 34. However, because the court previously ordered the Navy-a non-party at the time-to respond to plaintiff's fourth request for production of documents, the court will vacate Magistrate Judge Smyser's order with respect to the Navy and will evaluate the merits of plaintiff's discovery requests and the Navy's objections thereto.

Plaintiff's fourth request for production of documents is comprised of 22 numbered requests. The Navy objected to the requests numbered 2 through 7 and 9 through 18. Despite these objections, the Navy responded to request numbers 6, 10, and 12 through 16 by indicating that no documents or statements exist. Therefore, the court will deny plaintiff's motion to compel with respect to request numbers 6, 10, and 12 through 16 without further discussion. The court will address the remaining discovery requests at issue seriatim.

A. Request Number 2

Plaintiff's request number 2 seeks "any and all documents responsive to or identified by Defendants' (present and/or dismissed) Response(s) to any of Plaintiff's Interrogatories." (Pl.'s Correspondence dated June 28, 2007.) The Navy's objection states that the "request is burdensome and irrelevant" and it "solicits documents that were identified by persons who no longer are parties to this action." (Id.)

The orders of court dated June 9, 2006 and October 30, 2006 (Docs. 65, 155) dismissed most of plaintiff's claims and all but one defendant. The only remaining claim in the instant action involves the alleged break-in of plaintiff's residence in March 2005. The only remaining defendant is General James L. Jones, Jr. ("Jones").*fn7 The court finds that documents responsive to request number 2 as it relates to the remaining claim are "reasonably calculated to lead to the discovery of admissible evidence." FED. R. CIV. P. 26(b)(1). Therefore, the court will order the Navy to provide documents responsive to discovery request number 2 only as it relates to the remaining claim. The court notes that the discovery requests at issue were directed to the Navy. Accordingly, the Navy shall be required to respond to request number 2 only with respect to plaintiff's interrogatories propounded on the Navy, not to any interrogatories propounded on other former or current defendants.*fn8

B. Request Numbers 3 through 5

In request numbers 3 through 5, plaintiff states:

3. Please provide the name, rank, and official photograph of all Marine Corps CI personnel assigned to Paris Island and MCAS Beaufort, South Carolina between May of 1983 and November of 1983.

4. Please provide the name, rank, and official photograph of all Marine Corps CI personnel who served with NIS at Subic Bay from 1986-1988.

5. Please provide the name, rank, and official photograph of all Marine Corps CI personnel who served with NCIS from ...


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