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Samuel J. Bourne v. John R. Arruda

May 3, 2012


The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge


Currently before the court is plaintiff Samuel Bourne's motion to compel discovery (doc. no. 82). Defendants have filed an objection (doc. no. 86), and Bourne has replied thereto (doc. no. 88). Also before the court is an affidavit of counsel, see Ex. 1 to Mot. to Seal (doc. no. 97-1), a group of discovery materials filed under seal for in camera review, and Bourne's response to counsel's affidavit (doc. no. 99). See Order (doc. no. 94) (directing counsel to file affidavit and to submit discovery materials for in camera review). In addition, the parties have filed a number of nonconforming documents, which assert matters generally relating to the motion to compel. See Pl.'s Supp. to Mot. to Compel (doc. no. 95); Defs.' Obj. to Pl.'s Supp. (doc. no. 98); Pl.'s Reply to Defs.' Obj. (doc. no. 102); and Defs.' Response to Pl.'s Resp. to Mot. (doc. no. 104).


This action is the latest in a series of cases against the Town of Madison, the selectmen, and others associated with the Town, filed by Bourne. See, e.g., Bourne v. Town of Madison, No. 05-CV-365-JD (D.N.H. May 12, 2010), aff'd, No. 10-1718 (1st Cir. May 31, 2011) ("Bourne I"); Bedrock Realty Trust v. Town of Madison, No. 08-E-0027 (N.H. Super. Ct., Carroll Cnty.), aff'd, No. 2010-0091 (N.H. Nov. 18, 2010) ("Bourne II"); Bourne v. Town of Madison, No. 09-CV-00132 (N.H. Super. Ct., Carroll Cnty. Dec. 14, 2009) ("Bourne III"). In Bourne I, Bourne II, and Bourne III, Bourne named as a defendant Robert King, a former member of the Town Road Study Committee; King is not a party to the case at bar. Bourne's theory of the instant case is that defendants, in part influenced by persons including King, harbored malice towards Bourne when selectmen made statements about him at meetings held on June 9, 2010, and February 22, 2011. The defamation claims in this case relate to Selectman Arruda's June 9 statement about Bourne altering a document, and Selectman Brooks's February 22 allusion to Carl Drega, when speaking about a threatened foreclosure on Bourne's property and Town Meeting.

Bourne served one set of interrogatories and two sets of document production requests on defendants in this case. In response, defendants produced documents, provided answers, and also asserted objections and privileges, as discussed below.

Bourne has moved to compel complete responses to the interrogatories and to Document Production Request Nos. 2-6, 10, 11, and 14-16 in his First Request for Production of Documents (doc. no. 82-8) ("First DPR"), and Request Nos. 1-20 in his Second Request for Production of Documents (doc. no. 82-16) ("Second DPR"). Bourne has generally charged defendants with discovery abuse and spoliation of evidence, and he seeks an order allowing him, at defendants' expense, to engage a computer expert to locate missing documents in defendants' computers.


I. Nonconforming Documents (doc. nos. 95, 98, 102, and 104) This court has discretion to control its docket and may strike nonconforming documents. See Horstkotte v. Wrenn, No. 08-CV-61-JL, 2008 WL 2953540, *2 (D.N.H. July 29, 2008); see also LR 1.3 & 5.2. Here, plaintiff and defendants have both filed a number of documents, generally relating to ripe, fully briefed, nondispositive motions, without filing any motion requesting the court's leave to depart from the ordinary briefing schedule. See generally LR 7.1(e)(2) & (3). The parties' layering of nonconforming filings has resulted in a cluttered docket, unnecessarily complicating the disposition of a discovery motion by requiring the court to follow trails of filings not directly linked to the instant motion. Henceforth, nonconforming filings may be stricken, and repeated failures to abide by the rules may result in sanctions on the offending party or attorney. See Fed. R. Civ. P. 11(c); LR 1.3 & 5.2.

II. Motion to Compel

A. Standard

Rule 26(b)(1) allows discovery of any non-privileged matter that is relevant to any party's claim or defense, see Fed. R. Civ. P. 26(b)(1); parties seeking broader discovery of matters "'relevant to the subject matter'" in the action are required to show good cause to support the request. In re Subpoena to Witzel, 531 F.3d 113, 118 (1st Cir. 2008) (quoting Fed. R. Civ. P. 26(b)(1)).

The court must limit the scope or frequency of discovery if the information "can be obtained from some other source that is more convenient, less burdensome, or less expensive," or if the "burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C)(i) and (iii). Specifically, as to discovery of electronically stored information, the court may order discovery of such information that is otherwise shown not to be reasonably accessible because of undue burden or cost, only if the requesting party shows good cause for such discovery. See Fed. R. Civ. P. 26(b)(2)(B).

Rule 37(a) allows for motions to compel discovery. See Fed. R. Civ. P. 37(a). The party moving to compel discovery over an adversary's objection bears the burden of showing that the information is relevant, see Caouette v. OfficeMax, Inc., 352 F. Supp. 2d 134, 136 (D.N.H. 2005), and that the answers are incomplete or evasive. See Vaughn v. Bernice A. Roy Elem. Sch., No. 05-cv-223-JD, 2007 WL 1792506, *1 (D.N.H. June 19, 2007). The party resisting the motion bears the burden of establishing an applicable privilege and showing that it has not ...

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