KENNETH P. MEADOWS, III, Plaintiff, v. UNIGLOBE COURIER SERVICE, INC., et al., Defendants CASE NO. 5:08CV2530 United States District Court, N.D. Ohio, Eastern Division Filed: April 01, 2009 Counsel Mark A. Chuparkoff, Theodore Chuparkoff, Chuparkoff & Associates, Akron, OH, for Plaintiff. Jeffrey D. Stupp, Joseph W. Pappalardo, Gallagher Sharp, Cleveland, OH, for Defendants. Lioi, Sara, United States District Judge MEMORANDUM OPINION AND ORDER *1 This Memorandum Opinion and Order arises out of the motion of Plaintiff Kenneth Meadows (“Plaintiff”) to compel discovery.[1] (Doc. No. 17.) Defendants UniGlobe Courier Service, Inc. and Jarrett Ramone Jones (“Defendants”) have filed an opposition (Doc. No. 18), and Plaintiff has filed a reply (Doc. No. 19). For the reasons that follow, Plaintiff’s motion is DENIED as premature. I. FACTUAL AND PROCEDURAL HISTORY This case is founded upon this Court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332, and arises out of an automobile accident involving Plaintiff and Defendant Jarrett Ramone Jones (“Jones”), a tractor-trailer driver for Defendant UniGlobe Courier Service, Inc. (“UniGlobe”). Plaintiff alleges that Jones hit Plaintiff from behind, aggravating Plaintiff’s pre-existing back condition and resulting in severe injury to Plaintiff. (Compl. ¶¶ 8, 11-13.) Plaintiff seeks in excess of $950,000 in compensatory damages, plus costs. At some point, Plaintiff’s counsel became aware that Defendants had taken video surveillance of Plaintiff. Plaintiff requested copies of the surveillance tapes on January 12, 2009. (Doc. No. 19 at 2.) Defendants refused, arguing that the tapes were privileged work product. (Id.) On February 11, 2009, Plaintiff again requested copies of the tapes, which Defendants refused on February 16, 2009. (Id.) On February 17, 2009, Plaintiff filed a Status Report which, inter alia, briefly set forth the dispute regarding the surveillance tapes and expressed an intent to file a motion with the Court. (Doc. No. 14 at 2.) On February 18, 2009, Defendants filed a Status Report stating, inter alia, that they refused to turn over the surveillance tapes at Plaintiff’s “informal requests,” and that it was their position that “the surveillance tapes and transcripts are privileged work product, and will only be used at trial for purposes of impeachment.” (Id.) Sometime after Defendants filed their Status Report, Plaintiff served Defendants with interrogatories and requests for production which, inter alia, requested production of the surveillance tapes. (Doc. No. 18 at 2.) On February 20, 2009—a mere two days after serving Defendants with requests for production—Plaintiff filed the instant motion to compel. (Doc. No. 17.) In their opposition, Defendants argue that they must be given at least 30 days to respond to Plaintiff’s discovery request. Defendants also seek sanctions against Plaintiff under Rule 37(a)(5)(B). II. LAW AND ANALYSIS Plaintiff argues that Defendants are obligated to turn over the surveillance tapes as required initial disclosures under Rule 26(a). Rule 26(a)(1)(A) requires that a party must, without awaiting a discovery request, turn over to the other party, “a copy [...] of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(ii). If a party fails to turn over Rule 26(a) material, the other party may move to compel disclosure. Fed. R. Civ. P. 37(a)(3)(A). As Plaintiff notes in his own Reply (Doc. No. 19 at 2-3), Defendants stated in their Status Report that they did not intend to turn over the surveillance tapes in part because they would be used solely for impeachment purposes.[2] (Doc. No. 16 at 2.) Thus, Defendants were not required to disclose the surveillance tapes under Rule 26(a). *2 Since Defendants were not obligated to turn over the surveillance tapes under Rule 26(a), the Court must now determine whether Plaintiff’s document request of February 18, 2009, constitutes a proper basis to grant Plaintiff’s motion to compel. Rule 34 demands that a party to whom a request is directed “respond in writing within 30 days after being served.” Fed. R. Civ. P. 34(a)(2)(A). Where a party has not yet responded in writing within 30 days after being served, a motion to compel must be denied as premature. See, e.g., Grech v. Ford Motor Co., 2008 WL 5381870, at *1 (E.D. Mich. Dec. 22, 2008); Robinson v. Doe, 2008 WL 5069249, at *1 (S.D. Ohio Nov. 24, 2008). In this case, Plaintiff served its production requests on Defendants on February 18, 2009, then filed a motion to compel two days later, before Defendants had responded in writing. Thus, Plaintiff’s Rule 37 motion must be denied as premature. Defendants argue that they are entitled to reasonable attorneys’ fees under Rule 37 for Plaintiff’s improper motion to compel. Rule 37(a)(5)(B) states: If [a] motion [to compel] is denied, the court [...] must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust. While the Court understands Defendants’ frustration, the Court finds that the circumstances of the case make an award of expenses unjust. The purpose of imposing expenses is to “deter a party from pressing to a court hearing frivolous requests for or objections to discovery.” Fed. R. Civ. P. 37, Advisory Committee Notes (1970). This is not case where Plaintiff’s request is frivolous, or where “no genuine dispute exists.” Id. Rather, Defendants have made it abundantly clear—both to Plaintiff and to this Court—that they do not intend to produce the surveillance tapes. Additionally, Plaintiff cites a concern that waiting until after the responses are due to file a motion to compel would not leave this Court sufficient time to rule on the motion before the non-expert discovery cut-off deadline of May 20, 2009. This concern, however, does not obviate Plaintiff’s obligation to follow the rules relative to discovery. Thus, while Plaintiff should have waited until the time for responses to his discovery requests expired, the Court finds that sanctions would be unjust under the circumstances. III. CONCLUSION For these reasons, Plaintiff’s motion to compel (Doc. No. 17) is DENIED as premature. IT IS SO ORDERED. Footnotes [1] On March 30, 2009, Plaintiff filed a second motion to compel, submitted after Defendants’ responses to Plaintiff’s discovery requests. (Doc. No. 22.) This Court will rule upon that motion once Defendants have had an opportunity to file an opposition and Plaintiff has had an opportunity to file a reply. This Memorandum Opinion and Order concerns solely the motion to compel filed by Plaintiff on February 20, 2009. [2] Plaintiff complains that Defendants only mentioned that the evidence would only be used for impeachment purposes in its Status Report filed on February 18, 2009, but did not offer this defense in its informal discussions with Plaintiff. Given that Defendants filed their Status Report before Plaintiff filed his requests for production, the Court fails to see why Defendants’ actions were so sinister.