Popovich maintains that by not producing the original
documents he requested during the deposition, the Department has failed to
cooperate in discovery in contravention of Trial Rule 37(A)(2). (See Pet’r Sec.
Mot. Compel at 5.) Popovich therefore requests that the Court order the
Department to produce the requested originals for use at the deposition.
Indiana Trial Rule 26(F) requires a party seeking to compel
discovery to attempt to resolve the discovery dispute before seeking Court
intervention and to document its attempts in the motion. See T.R. 26(F); see
also generally Walker v. McCrea, 725 N.E.2d 526, 531 (Ind. Ct. App. 2000). The
failure to comply with either of these requirements may result in a dismissal
of the party’s motion. See T.R. 26(F).
Popovich’s Motion and his oral argument focus on the
Department’s purported “bad acts” before and after the deposition. (See Pet’r
Sec. Mot. Compel; Pet’r Reply; Hr’g Tr. at 84-93.) This litany of bad acts,
however, did not document Popovich’s informal attempts to resolve the discovery
dispute as required by Trial Rule 26(F).
Nonetheless, Popovich’s Motion did report that he sent an
email modifying the number of originals requested as an accommodation. This
alone, however, is an insufficient showing under Trial Rule 26(F) because the
Rule indicates that the moving party must attempt to reach an agreement with
the opposing attorneys, not just send a “message in a bottle” communication.
Although Popovich’s Motion reported that an email was sent, the Motion did not
state whether this communication hit its mark to indicate a back and forth
exchange had occurred. Nor did the Motion report that the parties had any
discussion to resolve the impasse after Popovich adjourned the deposition, even
though the Department produced an original document that was material to one of
Popovich’s claims immediately thereafter. Instead, Popovich’s Motion merely
reported that he filed his Second Motion to Compel about two weeks later. Accordingly,
Popovich failed to provide the required showing in his Motion to meet the requirements
of Trial Rule 26(F).
“The vital resource of [this Court’s] time should be spent
on discovery issues rarely and sparingly.” Howard v. Dravet, 813 N.E.2d 1217,
1223 (Ind. Ct. App. 2004). The expectation that the movant will make a
reasonable effort to resolve discovery disputes with the opposing party before
moving to enforce, modify, or limit discovery holds true even in instances
where, like here, the entire discovery process has been imbued with acrimony.
See n.1. Therefore, for all of the above-stated reasons, the Court DENIES
Popovich’s Second Motion to Compel. Consistent with the requirements of Indiana
Trial Rule 37(A)(4), the Court will schedule a hearing regarding the propriety of
an award of expenses by separate order.
