United States District Court, D. Utah Central Division
A. Kimball District Judge.
M. WARNER Chief United States Magistrate Judge.
Judge Dale A. Kimball referred this case to Chief Magistrate
Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(A). Before the court are Defendant Dale
Williams' Motion to Extend the Deadline to Serve
Defendant's Expert Reports (the “Motion to
Extend”), and Short Form Motion to Compel Production
of Plaintiff's Bicycle (the “Motion to
Motion to Extend seeks an extension of Defendant's
deadline to serve his expert report to January 4, 2017, to
allow Defendant's expert time to examine the bicycle
involved in the accident at the accident site. The Motion to
Compel seeks an order requiring Plaintiff to produce the
bicycle at the accident site by no later than December 22,
2017. Defendant argues that his expert's examination of
the bicycle at the accident site is necessary because
Plaintiff's expert examined the bicycle at the accident
site, and formed opinion related to the scope of damage on
to Rule 16, “[a] schedule may be modified only for good
cause and with the judge's consent.” Fed.R.Civ.P.
16(b)(4). Generally, parties may discover “any
nonprivileged matter that is relevant to any party's
claim or defense.” Fed.R.Civ.P. 26(b)(1).
“Information within this scope of discovery need not be
admissible in evidence to be discoverable.”
Id. Rule 37 permits a party to “move for an
order compelling disclosure or discovery.” Fed.R.Civ.P.
37(a). “The motion must include a certification that
the movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or
discovery in an effort to obtain it without court
action.” Id. “The district court has
broad discretion over the control of discovery, and [the
Tenth Circuit] will not set aside discovery rulings absent an
abuse of that discretion.” Sec. & Exch.
Comm'n v. Merrill Scott & Assocs., Ltd., 600
F.3d 1262, 1271 (10th Cir. 2010) (quotations and citations
does not object to an extension of time for Defendant to
serve his expert report. Plaintiff does object to the
production of the bicycle at the accident site, on the
grounds that Defendant could have requested to inspect the
bicycle there during fact discovery but did not. Plaintiff
does not argue that he will be prejudiced if Defendant's
request is granted, nor has he claimed any privilege.
Plaintiff argues that because “Defendant did not
propound a request to inspect the bike at the scene pursuant
to Rule 34, ” Defendant's motion for an order to
compel is improper. The court is unpersuaded by this argument.
In compliance with Rule 37, Defendant certified in the Motion
to Compel that the parties' counsel conferred through
telephone conferences on December 11 and 12, 2017, regarding
this request. Plaintiff does not deny this. His citation
to a Utah State Supreme Court case is not persuasive support
for his argument that Defendant's informal request
precludes an order to compel. The Tenth Circuit rejected the
argument of a property owner “that it was not required
to produce any documents[, ]” where the plaintiff
“never made a formal Rule 34 motion, [but] it did make
informal requests for documents, and the magistrate judge
ordered that those documents be produced.” Kern
River Gas Transmission Co. v. 6.17 Acres of Land, More or
Less, in Salt Lake Cty., Utah, 156 F. App'x 96, 101
(10th Cir. 2005); see also Lujan v. Exide Techs.,
No. 10-4023-JTM, 2011 WL 1594952, at *3 (D. Kan. Apr. 27,
2011) (“[W]hen one party responds to another's
informal request, resort to a motion to compel is an
acceptable next step.”)
court finds that there is good cause for Defendant's
expert to examine the bicycle involved in the accident at the
accident site. However, the court declines to order the
production of the bicycle by December 22, 2017, as requested
by Defendant. Plaintiff shall produce the bicycle at the
location of the accident at a time mutually agreed upon the
parties, but no later than December 27, 2017. Defendant's
deadline to serve his expert report is extended to Friday,
January 5, 2018.
IT IS HEREBY ORDERED that Defendant's Motion to Extend is
GRANTED IN PART and DENIED IN PART, and Defendant's
Motion to Compel is GRANTED IN PART and DENIED IN PART.