“Cheap & Lazy” is No Basis for a Motion to Compel

I’ve lost count of how many times an opposing party has served a request for production seeking ownership information about a piece of property.  For those who aren’t aware, that information is publicly available from the county recorder’s office.  In larger counties it is available online.   I object to those requests for production on that basis.  One opponent actually moved to compel it, among other items.  The motion was denied.  Why? 

 “Even when the documents at issue are within the opposing party’s possession, custody or control, it may be inappropriate to compel discovery when the discovering party could easily obtain the documents elsewhere without any of the difficulties that might result from compelled production.”[1]  This is consistent with the court’s ability to decide an alternative form of discovery is appropriate.  “Courts have declined to compel production of documents in the hands of one party when the material is equally available to the other party from another source.”  “The protection from having to produce documents that are equally available to the other party is not limited to the public records context.” 

When might discovery be refused?  Declining to purchase the materials and attempting to get free access via discovery is one scenario.  “Hozie has chosen not to pay for the documents himself, opting instead to seek free access through discovery of his adversary.”  “Parties are generally responsible for their own costs, and their adversaries are not obligated to finance their litigation. Granting Hozie access to the database through an SEC key fob would essentially be forcing the SEC to finance his litigation.”

[1] SEC v. Strauss, 09 Civ. 4150, 2009 U.S. Dist. LEXIS 101227, 2009 WL 3459204 (S.D.N.Y. Oct. 28, 2009). The post’s title was motivated by this timeless quote. “Fat, drunk, and stupid is no way to go through life, son.” Dean Vernon Wormer, Animal House (1978).