On August 9, 2012, City police officers, responding to a call, arrested Plaintiff Jack Palmer (“Palmer”) at a local McDonald's restaurant on outstanding warrants previously issued by the City of Missoula Municipal Court. Officers transported Palmer to the Missoula County Detention Facility. Palmer carried a significant amount of cash on his person at the time of arrest. Parties dispute the amount of cash and whether the police seized it. Palmer posted bond and was released that evening.

The morning after his arrest, Palmer appeared before the City Municipal Court. The court determined that Palmer's arrest was premised on a mistake, as the warrants were issued for another person with an identical name and a different date of birth. The City then released Palmer. Palmer alleges that his arrest was unconstitutional and that police officers stole his money and defamed him.

Palmer and his employer, Carwerks, seek discovery of information regarding 13 current and former City employees with varying degrees of involvement in the events giving rise to this litigation.[1] Officers Rebekeh Potter, Brad Waln, Rico Suazo, and Brian Vreeland responded to the call on August 9, 2012. Chris Odlin spoke with Palmer one week later at the Mayor's Office, and Officer Kamerer spoke with Palmer about identity theft on August 24, 2012. At the time of Palmer's arrest, Mike Brady was Assistant Police Chief and Mark Muir was Police Chief. Craig Serba, Ryan Prather, Rusty Wickman, and Kelcey Williams were City employees at the time of Palmer's arrest, but Plaintiffs have not made specific allegations of their involvement, and the City denies that they were in any way involved with the incident on August 9, 2012. Brent Sells was a City employee approximately 20 years ago.

The City produced some responsive documents but not all. The City provided a privilege log, seeking to avoid discovery of work product, privileged communications, and the personnel files and private communications of the above-named individuals. The City also provided a proposed protective order to Plaintiffs, agreeing to produce all disciplinary and training information in the personnel files upon its execution. Plaintiffs did not return the protective order or propose changes.

Pursuant to Federal Rule of Civil Procedure 37(a)(3)(B), Plaintiffs move for an order compelling discovery. In their motion, Plaintiffs ask the Court to compel the City to produce documents responsive to three requests for production: (1) the complete personnel files of 13 current and former City employees; (2) all electronically stored information sent to and from the same 13 individuals for two distinct periods of time, roughly contemporaneous with Palmer's arrest and with later media coverage of the incident; and (3) all written and electronically stored correspondence between the City or its representatives and the Montana Municipal Interlocal Authority following Palmer's arrest. Plaintiffs argue: (1) the requested information is within the scope of discovery and not privileged; (2) if the information was privileged, the City waived its privilege; and (3) sanctions should be imposed upon the City for “dilatory tactics.” (Doc. 18 at 5.)

*2 Plaintiffs failed to meet the requirements of Local Rule 7.1(d)(1)(A), requiring an opposed motion be accompanied by a supporting brief. Plaintiffs filed a single document formatted as a motion but substantively similar to a brief. Generally, failure to comply with this rule “will result in denial of the motion, subject to refiling in compliance.” D. Mont. Local R. 7.1(d)(1)(A). In the interest of preventing further unnecessary filings, however, the Court will reach the issues presented in Plaintiffs' motion. The Court counsels Plaintiffs to comply with the Local Rules in all future filings as failure to do so will result in prompt dismissal.

Plaintiffs seek the complete personnel files of the 13 current and former City employees listed above. In response to Plaintiffs' discovery requests, the City offered to disclose all disciplinary and training information upon Plaintiffs' execution of a protective order. The protective order would limit the number of copies made and require destruction of documents upon final disposition of the case. Plaintiffs did not mention the protective order in their initial brief; in their reply brief, Plaintiffs simply argue that the proposed order is unnecessary. Plaintiffs did not offer changes to this protective order but now ask for unrestricted access to the personnel files.

The court has wide latitude in determining whether to issue a motion to compel. In re Arizona, 528 F.3d 652 (9th Cir. 2008). Rule 37(a)(3)(B) provides that “[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection” when an opposing party fails to produce requested documents. The moving party must show that it is otherwise unable to get information that is both relevant to either party's claim and unprivileged. Fed. R. Civ. P. 26(b)(1). The moving party must “certif[y] 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.” Fed. R. Civ. P. 37(a)(1).

To meet the requirements for a good faith attempt to confer, the moving party must “affirmatively reach out to ... try to resolve the issue.” Simms v. Ctr. for Corr. Health & Policy Studies, 272 F.R.D. 36, 39 (D.D.C. 2011). Here, Plaintiffs did not attempt to resolve the issue before seeking a motion to compel. By offering the disciplinary and training information subject to a protective order, the City made a reasonable effort to respond to Plaintiffs' discovery requests. Plaintiffs claim they “conferred in good faith with defendant City” through “an exchange of letters and emails between the parties stating their positions.” (Doc. 18 at 2.) Plaintiffs' Rule 37(a)(1) certification is clearly disingenuous, however, where the City offered to disclose documents under a protective order and Plaintiffs refused to consider the City's offer.

Because the parties bear the “primary responsibility for conducting discovery, ... they [are] obliged to act responsibly and avoid abuse.” Fed. R. Civ. P. 26(g) Advisory Committee's Notes, 1983 Amend. Here, the City made a seemingly reasonable offer to meet Plaintiffs' request for personnel files. Where the City has acted responsibly and avoided abuse of discovery, involvement of the Court is unnecessary. The Court will not compel the City to disclose the entire personnel files of 13 former and current employees, most of whom were not involved in Palmer's arrest.[2]

*3 Plaintiffs ask the Court to compel production of all “emails, twitters, cell phone calls or other electronic stored transmissions or receptions of any kind” created by or sent to the 13 current and former employees listed above. The City claims that it has provided all materials over which it may exercise control and that any other responsive material is not discoverable. The Court agrees.

Federal Rule of Civil Procedure 26(b)(1) sets the scope of discovery: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Even when requested information is otherwise discoverable,

Fed. R. Civ. P. 26(b)(2)(c). Here, Plaintiffs have failed to demonstrate that the requested information is discoverable. Plaintiffs seek strictly personal communications, much of which was sent to and from individuals uninvolved in Palmers' arrest. Plaintiffs have not shown a particular need for this discovery; nor have they demonstrated that it may lead to resolution of the issues presented. Assuming, for the sake of argument, that the highly personal information sought meets the threshold requirements of 26(b)(1), the practical difficulties and privacy concerns of the individuals outweigh any potential benefit.

Additionally, requested documents or electronically stored information are discoverable only when they are within the opposing party's “possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). “Control is defined as the legal right to obtain documents upon demand.” United States v. Int'l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989). Despite Plaintiffs' assertion to the contrary, the 13 individuals from whom the Plaintiffs seek information are not named parties. Plaintiffs have sued the City and not its employees in their individual capacity. The City, like any other employer, does not have the legal right to access electronically stored information sent to and from its employees' personal electronic devices.

In response to Plaintiffs' request for correspondence between the City and the Montana Municipal Interlocal Authority, the City produced a privilege log asserting attorney-client privilege and attorney mental impressions. Plaintiffs ask the Court to compel the requested communications, arguing that the information is discoverable and that the City waived any privilege by failing to provide a “timely or proper” privilege log. (Doc. 18 at 3.)

“Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). When, however, the information sought is otherwise discoverable, a party may overcome the general prohibition by showing that it “has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A). The requested information, communications between the City's attorneys and insurer, falls squarely within the general rule. Plaintiffs did not meet their burden to compel discovery, failing to show substantial need and undue hardship. The requested information is undiscoverable.

*4 Plaintiffs argue that the City nonetheless waived any privilege by failing to provide a “timely or proper” privilege log. Plaintiffs have not demonstrated why the privilege log is untimely or improper. The City produced a privilege log on May 12, 2015, well before Plaintiffs filed their motion to compel on September 1, 2015. The City has not waived any claim it has to privilege or work product protection.

Plaintiffs request sanctions “for Defendant's dilatory tactics and wasting Plaintiffs' and the Court's time squabbling over issues that have long since been resolved under the Federal Rules of Civil Procedure.” (Doc. 18 at 5.) Because the Court denies Plaintiffs' motion to compel in its entirety, it does not further consider Plaintiffs' argument for sanctions.

IT IS ORDERED that Palmer and Carwerks' motion to compel (Doc. 18) is DENIED.

In its response brief, the City states that Plaintiff seeks information about 14 individuals, but only 13 are named. However, the total number is irrelevant to the Court's analysis.

The Court's analysis assumes the City will not revoke any part of its earlier offer to disclose.