LONNIE KADE WELSH, Institutional ID No. 6516607, Plaintiff, v. CORRECT CARE RECOVERY SOLUTIONS, et al., Defendants CIVIL ACTION NO. 5:18-CV-020-BQ United States District Court, N.D. Texas, Lubbock Division Filed July 11, 2023 Bryant Jr., D. Gordon, United States Magistrate Judge ORDER *1 On November 15, 2022, the Court entered an Original Rule 16 Scheduling Order (Scheduling Order), which specifically outlined the discovery that Defendants Lesley Dinwiddie, Margarito Gonzales, Arnulfo Hernandez, and Bill Vanier were to provide pro se Plaintiff Lonnie Kade Welsh. ECF No. 206. Now before the Court is Welsh's Motion to Compel Defendants to Comply with Court Scheduling Order. ECF No. 224. Welsh maintains that Defendants have not provided all documents encompassed by the Court's Scheduling Order, and the discovery they did provide was not authenticated in accordance with FED. R. EVID. 901. Id. at 3–4.[1] Defendants filed a response (ECF No. 228), to which Welsh filed a reply. ECF No. 234.[2] The motion is now ripe for review. For the reasons stated below, the Court GRANTS the motion. I. Background and Parties' Arguments The Scheduling Order provides that by April 29, 2023, Defendants were to “disclose to Plaintiff all records of the incident(s) forming the basis of Plaintiff's Amended Complaint (see ECF Nos. 20, 157), including but not limited to the following:” i. All internal affairs investigation reports, witness statements, and a copy of the video, if any, which was made. Defendant(s) may submit any sensitive or confidential information to the Court for in camera review before complying with this provision, but must do so by the prescribed deadline. ii. Plaintiff's medical records for the six-month period surrounding the incident date, which medical records shall include Plaintiff's records for any facility at which he was given medical examination or treatment. iii. All disciplinary and classification records for the six-month period surrounding the incident date(s). iv. If Plaintiff alleges any other claim: all records, including video or audio, pertaining to his claim. ECF No. 206, at 2–3. Welsh contends that Defendants have failed to comply with the foregoing provisions. Mot. 1–3, ECF No. 224. Welsh explains that although Defendants provided “over 600 pages of medical records,” the “records are from 2018 – 2023.” Id. at 3. According to Welsh, there are no medical records “surrounding the January 22, 2016 and the November 13, 2017 use[s] of force”—i.e., the basis of the live claims in this action. Id. Welsh also asserts that Defendants failed to provide “internal affairs investigation reports, witness statements, disciplinary[,] or classification” records. Id. Next, Welsh maintains that to the extent the Scheduling Order “does not cover the observation log [kept] by Correct Care Recovery Solutions employees following the November 13, 2017 incident,” Defendants should be required to supply an authenticated copy. Id. Finally, Welsh argues that Defendants should be required to authenticate all records they produced or will produce. Id. Attached to his motion is a copy of the observation log (id. at 13–45), as well as the flash drive Defendants purportedly gave to Welsh containing responsive discovery. ECF No. 225. *2 In response, Defendants insist that “the documents allegedly omitted from production are contained within the production.” Resp. 2, ECF No. 228. Defendants refer to the flash drive Welsh filed and state that “the Court can see for itself that the medical records surrounding the incidents include records bates-labeled TCCC 000196-TCCC 000208, TCCC 000264, and TCCC 000266.” Id. at 2–3. Defendants further maintain that “the use of force materials for each incident were produced as TCCC 000001 – TCCC 000189 as clearly stated in Defendants' written disclosure response.” Id. at 3 (citing Mot. 7–8). As to the observation logs, Defendants assert that Welsh has failed to show “how the documents are relevant and proportional to the needs of the case.” Id. Moreover, Defendants observe that Welsh has a copy of the requested observation logs (Mot. 13–45); thus, “it is unclear why Defendants should be required to produce them.” Resp. 3. Finally, Defendants aver that the authentication issue is now moot because they “have served on [Welsh] a Certification of Business Records with [their] response.” Id. In reply, Welsh reiterates that Defendants have not supplied the requisite discovery and asks the Court to conduct an in camera review of the materials he filed. Reply 1, ECF No. 234. The observation logs, Welsh contends, are encompassed within the order that Defendants provide “all records of the incident(s) forming the basis of Plaintiff's Amended Complaint.” Id. at 2. Moreover, Welsh maintains that the logs are relevant because they relate to his condition following the alleged November 2017 use of force. Id. at 2–3. Welsh further explains that he obtained the copy of the observation logs he submitted to the Court during his state criminal case and those records are unauthenticated. Id. at 2. In sum, Welsh asks the Court to direct Defendants to provide authenticated copies of documents responsive to his claims. Id. at 2–3. II. Discussion A. Legal Standard Rule 26 of the Federal Rules of Civil Procedure defines the permissible bounds of discovery: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. FED. R. CIV. P. 26(b)(1). That is, information must be nonprivileged, relevant, and proportional to the needs of the case to constitute discoverable material. See Samsung Elecs. Am., Inc. v. Chung, 321 F.R.D. 250, 279 (N.D. Tex. 2017) (“Under Rule 26(b)(1), discoverable matter must be both relevant and proportional to the needs of the case—which are related but distinct requirements.”). Federal Rule of Civil Procedure 37(a) governs motions to compel discovery responses. Rule 37(a)(3)(B) provides that a party seeking discovery may move for an order compelling production against another party when the latter has failed to produce documents requested under Rule 34. See FED. R. CIV. P. 37(a)(3)(B)(iv). For purposes of Rule 37(a), “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” FED. R. CIV. P. 37(a)(4). The party resisting discovery has the burden of showing why the requested discovery is irrelevant, overly broad, or unduly burdensome. Samsung Elecs. Am. Inc. v. Chung, 325 F.R.D. 578, 591–92 (N.D. Tex. 2017); accord McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., No. 3:14-cv-2498-B, 2016 WL 2997744, at *4 (N.D. Tex. May 25, 2016) (“The party resisting discovery must show specifically how each discovery request is not relevant or otherwise objectionable.”). B. Defendants failed to produce responsive records. *3 Defendants refer the Court to specific bates-labeled documents in support of their contention that they supplied Welsh responsive discovery. Resp. 2–3. Initially, the Court observes that the documents on the flash drive Welsh submitted (which he purports is the same flash drive Defendants provided to him) do not have bates stamps. Moreover, the Court reviewed the documents and they, as Welsh contends, span a time period from 2018 to 2023. See Mot. 3. The relevant incidents, however, occurred on January 22, 2016, and November 13, 2017—i.e., the two dates Welsh alleges Defendants used excessive force. See, e.g., ECF No. 81, at 2–4. The Court directed Defendants to provide “medical records for the six-month period surrounding the incident date,” along with other documents related to the two uses of force. ECF No. 206, at 2. None of the documents contained on the flash drive appear responsive to the Court's Scheduling Order. This conclusion is further bolstered by the fact that Defendants' cover letter to Welsh represented the flash drive contained approximately 267 pages of documents (Mot. 6–8 (purporting to provide documents “bates-labeled TCCC 000001 – TCCC 00267”)), but the actual flash drive contains 665 pages—approximately 400 pages more than Defendants stated they were providing. Defendants contend that Welsh “did not bother to review [their] production closely.” Resp. 3. The Court, however, finds that Welsh has accurately represented the contents of the flash drive, and other than their insistence that they produced the documents, Defendants have not provided any evidence showing that they complied with the Court's Scheduling Order.[3] The Court therefore ORDERS Defendants to serve on Welsh authenticated documents in compliance with the Scheduling Order no later than July 21, 2023. C. The observation logs are relevant to Welsh's claims, and Defendants must produce them. Defendants oppose Welsh's request for production of the observation logs. Resp. 3. The sole basis for their opposition is their conclusory assertion that the logs are not relevant or proportional to the needs of the case. Id. The Court disagrees. Welsh alleges that he suffered swelling and bruising to his head and eye following the November 13, 2017 use of force. Am. Compl. 57, ECF No. 20. Observation logs regarding Welsh's behavior and condition are relevant to that claim.[4] See, e.g., FED. R. CIV. P. 26(b)(1) (“Information within this scope of discovery need not be admissible in evidence to be discoverable.”); Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 820 (5th Cir. 2004) (“Discovery requests are relevant when they seek admissible evidence or evidence that is reasonably calculated to lead to the discovery of admissible evidence.” (internal quotation marks and citation omitted)); Samsung, 321 F.R.D. at 280 (“To be relevant under Rule 26(b)(1), a document or information need not, by itself, prove or disprove a claim or defense or have strong probative force or value.”). The logs (approximately thirty pages total) are also proportional to the needs of the case, particularly given Defendants likely have ready access to the documents. See generally McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 322 F.R.D. 235, 243 (N.D. Tex. 2016) (setting forth the proportionality factors, which includes “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit”). *4 In sum, the Court finds that Defendants have failed to meet their burden of showing that the logs are not relevant or proportional. See Lopez v. Don Herring Ltd., 327 F.R.D. 567, 585 (N.D. Tex. 2018) (explaining that “to successfully resist a motion to compel,” the resisting party must “specifically object and show that the requested discovery does not fall within Rule 26(b)(1)'s scope of relevance ... or fails the required proportionality calculation”). The Court therefore ORDERS Defendants to serve on Welsh authenticated observation logs related to the November 13, 2017 incident no later than July 21, 2023. SO ORDERED. Footnotes [1] Page citations to Welsh's filings refer to the electronic page number assigned by the Court's electronic filing system. [2] Welsh erroneously titles the filing a “Sur-Reply.” [3] Specifically, Defendants have failed to provide to the Court copies of the documents they claim to have produced to Welsh, and the copies apparently produced to and now provided by Welsh do not support Defendants' position. Whatever documents Defendants believe they produced to Welsh, the record before the Court does not lead to the conclusion that they produced the required materials or otherwise fully complied with the Court's order. [4] The logs indicate that officials were to document their observations of Welsh's behavior, which “is measured with” either “Satisfactory – Unsatisfactory” and condition, which “is measured with” either “Stable – Unstable.” Mot. 14.