*1 In 2018, Plaintiff Bruce Merritt, representing himself, filed this negligence suit against the United States of America, Gloria Hammond, and Ethan Darling for damages incurred from a fall in the Hartland Four Corners United States Post Office parking lot on December 1, 2015. Following multiple extensions of the discovery schedule, the deadline for all discovery was October 1, 2021, and the motions deadline is November 1, 2021. On September 7, Plaintiff filed a motion to compel the government to supplement its interrogatory answers and requests to produce. (Doc. 150.) The government opposed the motion and Plaintiff filed a reply on September 30, at which time the court took the motion under advisement.

Plaintiff asserts that, based upon deposition testimony of the former Hartland Four Corners Postmaster Patricia Courtemanche, he has discovered information that “clearly contradicts the Government's original answers and claims that [the] information requested did not exist.” (Doc. 150 at 1.) He seeks a court order that the government supplement their original answers and produce the requested reports and photographs. Alternatively, if the government cannot produce the materials, Plaintiff requests the “court rule that the [government] is guilty of spoliation of evidence.” (Id. at 7.)

The government responds that it has produced all responsive material that exists and the discrepancies between the witness's “recollection of certain documents and their actual existence is due to the lengthy period of time between the relevant events and [the] deposition.” (Doc. 151 at 1.) Following the deposition, the government conducted additional investigation and supplemented its discovery responses to include “a limited number of additional documents that it found.” (Id. at 1-2) The government asserts “it has properly disclosed all responsive material, and there is nothing left for this Court to compel.” (Id. at 2.) Accordingly, the government requests Plaintiff's motion be denied because it “cannot be compelled to produce documents that do not exist or to provide answers that it believes to be false, or which require speculation after reasonable investigation.” (Id. at 3-4.)

Notwithstanding the government's assertion that no additional materials exist or could be located, Plaintiff states he believes the materials exist and the government should therefore be compelled to produce them. He also notes he is prepared to take additional depositions to “identify and explain new photographs that have suddenly been produced.” (Doc. 152 at 7.)

I. Standard of Review

The general rule regarding the scope of discovery specified in Federal Rule of Civil Procedure 26(b)(1) permits discovery:

*2 Fed. R. Civ. P. 26(b)(1). “Discovery rules are to be accorded a broad and liberal treatment to effectuate their purpose that civil trials in the federal courts no longer need be carried on in the dark.” Jenkins v. Miller, No. 2:12-cv-184, 2021 WL 1115928, at *1 (D. Vt. Mar. 24, 2021) (cleaned up). “The party seeking discovery bears the initial burden of proving the discovery is relevant, and then the party withholding discovery on the grounds of burden [or] expense bears the burden of proving the discovery is in fact unduly burdensome and/or expensive.” Id. (cleaned up).

II. Analysis

A. Request to Produce No. 7

Plaintiff's request to produce number 7 states: “Please produce all photographs taken in 2015 of and related to the Hartland Four Corners Post Office.” (Doc. 151-2 at 15; Doc. 152 at 3.) Following Courtemanche's August 2021 deposition, the government produced additional photos as the information provided at the deposition “allowed the [government] to conduct a new targeted search for additional photographs that were responsive.” (Doc. 151 at 6.) Plaintiff complains that “[t]his is an example of evidence that existed that was not, but should have been, produced to Plaintiff back in 2019.” (Doc. 152 at 4.) Plaintiff asserts, “on information and belief, ... that these photos were part of the 2015 Safety Inspection and there must be additional photos of the exterior and/or interior of the post office building which Plaintiff wants.” (Id. at 4.) In support of this assertion, he points to the fact that the photographs are not consecutively numbered.

The government maintains, and its counsel attests, that it has produced all responsive documents and that the produced photographs “are the only photographs responsive to this request that exist.” (Doc. 151 at 7.) “Parties are only required to produce documents that exist[.]” Chandler v. Carroll, No. 2:11-cv-167, 2013 WL 2323048, at *3 (D. Vt. May 28, 2013) (internal quotation mark omitted) (denying motion to compel documents and materials that counsel attested did not exist). Production of photographs that do not exist cannot be compelled.

B. Request to Produce No. 3

Plaintiff's request to produce number 3 states: “Please produce a copy of the USPS Request for Qualifications, Request for Proposal, Bid, responder's qualifications, and any other information requested of Ethan Darling and/or his company that he provide[d] to the US Postal Service prior to entering into a contract with him.” (Doc. 151-2 at 14.) The government has maintained that no responsive documents exist. Based on deposition testimony, however, Plaintiff asserts that the government “had control of the information and now says they do not.” (Doc. 150 at 4.) The deposition testimony Plaintiff cites is as follows:

(Doc. 150-4 at 1.) The testimony continued:

(Doc. 151-3 at 4–5.) The government responds that it has provided Plaintiff with signed discovery responses indicating that after a reasonable search in accordance with Rule 34, no responsive documents exist. It further asserts the witness's “uncertain testimony does not reasonably call that response into question or require any further supplementation.” (Doc. 151 at 9.)

*3 As the government maintains, and its counsel attests, that no responsive documents exist, production cannot be compelled. See Chandler, 2013 WL 2323048, at *3.

C. Request to Produce No. 4

Plaintiff's request to produce number 4 states: “Please produce a copy of the written contract between Ethan Darling and/or his company, and the US Postal Service for the period including December 2015.” (Doc. 151-2 at 14.) Plaintiff asserts that the government's response that no responsive documents exist is inconsistent with the testimony that something in writing was sent to the Procurement Department. The testimony continued:

(Doc. 150-3 at 1.)

The testimony that there was “something set up” does not contradict the government's representation that no responsive documents exist. As the government maintains, and its counsel attests, that no responsive documents exist, production cannot be compelled. See Chandler, 2013 WL 2323048, at *3 (noting parties “have no obligation to create documents to support [their adversary's] theory of the case”).

D. Interrogatory 13

Plaintiff's interrogatory number 13 sought, in pertinent part, “the required experience and equipment to be awarded the contract to plow/sand/salt/grade the Hartland Four Corner's Post Office.” (Doc. 151-2 at 8.) Plaintiff asserts that the government's response that “[t]here were no formal requirements for the experience, equipment, insurance, or availability” was “completely contradicted” by deposition testimony referencing a job posting for the contract.[1] (Doc. 150 at 5.) That testimony was as follows:

Plaintiff seeks the documentation or an admission that the USPS no longer has the requested documentation. Because neither the deposition testimony Plaintiff cites nor the testimony regarding the job posting references any particular requirements with regard to experience, equipment, insurance or availability, the government's interrogatory answer has not been contradicted.

E. Interrogatory 21

Plaintiff's interrogatory number 21 states: “Has there ever been a health and safety review or similar report done by the USPS, or caused to be done by the USPS, on the Hartland Four Corners Post Office facility, walkways, and parking area? Did any postal employee advise the landlord that there was a large piece of roof gutter missing along the walkway entrance which allowed rainwater to run unimpeded into the parking area?” (Doc. 151-2 at 11.) In 2019, the government produced a USPS Facility Assessment from 2016. Following the August 2021 deposition, the government produced a safety report conducted on December 14, 2015, with a report dated December 15, 2015. Plaintiff takes issue with the late production of this report as well as the fact that the photographs attached to the report were taken by separate cameras on different dates. He hypothesizes that (1) because the photos were numbered beginning at 268 and ending at 301, but only seventeen photos were produced, sixteen photos must be missing and (2) because four photos attached to the December 2015 report were dated March 26, 2015, the four photos were part of the Annual Safety Inspection from 2015. Plaintiff concludes “[l]ogically, there must be interior photos that would have accompanied the Annual Safety Report.” (Doc. 150 at 7.) He seeks production of the 2014 and 2015 Safety Inspection Reports or an admission that the USPS no longer has possession of them “so that Plaintiff can prove the US[PS]’s spoliation of evidence.” (Id.)

*4 The government responds that it answered the interrogatory in 2019 by stating that the postmaster conducted annual safety inspections. It further answered that USPS contacted the landlord about the condition of the gutters at the Hartland Four Corners Post Office. The government later produced the January 29, 2016 inspection report. Following Courtemanche's deposition testimony, “during the attempt to locate additional photographs of the post office, ... an additional inspection report from December 2015 was located” which the government “promptly produced.” (Doc. 151 at 12.) The government argues that to the extent Plaintiff seeks to compel production of reports from 2014 and 2015, he has not served a request for production for those reports and written discovery is closed. It continues, “to avoid needless use of the Court's time on resolving this issue, the United States represents that after a reasonable search it could not locate any documents that would be responsive to a request for a 2014 and 2015 Annual Inspection Report of Hartland Four Corners Post Office.” (Id. n.3.) The government submits that its answer is complete and appropriately supplemented.

Plaintiff replies that his request to produce number 12 required production of the reports. That request sought production of “all documents identified in the responses to the foregoing interrogatories, or which were relied upon or consulted in responding to the interrogatories.” (Doc. 152 at 2–3.) Accordingly, because the government answered interrogatory number 21 by stating the postmaster conducted annual safety inspections, the 2014 and 2015 Annual Safety Inspections should have been produced. His request that the court compel production of these documents cannot be granted as the government's counsel has attested that it could not locate these documents.

Plaintiff's alternative request that the government be found guilty of spoliation of evidence would require a motion demonstrating sanctions for spoliation of evidence are warranted. See West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) (explaining spoliation is “the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation”). The spoliation of evidence germane “to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction.” Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998). A finding that sanctions for spoliation are warranted, however, is beyond the scope of the motion to compel currently before the court. In addition, on the current record, there is no evidence whatsoever of intentional destruction of evidence. To the contrary, the record before the court shows diligence by the plaintiff in following up on his requests and similar diligence by counsel for the United States in looking again for photos and other information.

Plaintiff's motion to compel the government to supplement its interrogatory answers and requests to produce (Doc. 150) is DENIED.

Dated at Rutland in the District of Vermont, this 10th day of December 2021.

The deposition testimony to which Plaintiff cites is as follows: