*1 District Judge Tena Campbell referred this case to Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(A).[1] Due to Judge Warner's retirement, this case is now referred to Magistrate Judge Jared C. Bennett.[2] Before the court is Plaintiffs’ unopposed[3] Motion to Compel Inspection of Defendant's iPad and iCloud and Responses to Discovery.[4] Plaintiffs’ motion seeks an order compelling Mr. Bowser to provide complete and full written responses to Plaintiffs’ first set of discovery requests (“Discovery Requests”). Plaintiffs’ motion also seeks an order “grant[ing] Plaintiffs immediate access to [Mr.] Bowser's iPad[ ], iCloud, [emails and phone records] to prevent any further destruction of evidence and to determine the extent of the destruction.”[5] Mr. Bowser did not respond to the motion, and therefore, the motion is unopposed.[6] For the reasons set forth below, Plaintiffs’ motion to compel is granted in part and denied in part, both on the merits and as unopposed.

The district court has broad discretion in all discovery matters. Sec. & Exch. Comm'n v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010). With respect to the standards for discovery under federal law, a party may move to compel the disclosure of any materials requested through discovery so long as such materials are relevant and otherwise discoverable. Fed. R. Civ. R. 26(b)(1), 37(a). Materials requested in discovery need not be admissible in evidence to be discoverable. Id. 26(b)(1). However, the court must limit the scope of discovery to preclude unreasonably cumulative, duplicative, or burdensome discovery that is not proportional to the needs of the case or is otherwise outside the scope permitted by Rule 26(b)(1). Id. 26(b)(2)(C).

Additionally, the court may impose sanctions for destruction of evidence under Fed. R. Civ. P. 37(e) if the movant demonstrates: (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the movant was prejudiced by the destruction of the evidence. Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009). If the movant is able to demonstrate spoliation of evidence, the court should determine the remedy based on the relative fault of the party against whom sanctions are sought and the prejudice suffered by the party seeing sanctions. See, e.g., id.

*2 For the reasons set forth below, the court: (I) grants Plaintiffs’ motion to compel responses to the Discovery Requests; and (II) denies Plaintiffs’ request to access Mr. Bowser's electronic devices and accounts. Based on the court's decision to grant Plaintiffs’ motion to compel, the court (III) directs Mr. Bowser to show cause by written response as to why he should not be required to pay Plaintiffs’ reasonable expenses incurred in bringing this motion. Each issue is addressed below.

I. Plaintiffs’ motion to compel responses to the Discovery Requests is granted.

Because Mr. Bowser has failed to respond to the instant motion to compel, the court grants the motion based on non-opposition pursuant to DUCivR 7-1(d). Additionally, a review of the Discovery Requests and Mr. Bowser's responses convince the court that the information sought is nonprivileged, relevant, and proportional. Mr. Bowser's answers to these proper Discovery Requests are either incomplete or nonresponsive. Accordingly, the court grants Plaintiffs’ motion to compel responses to the Discovery Requests based on the merits.

Mr. Bowser shall provide full and complete written responses to the Discovery Requests no later than September 24, 2020. Should Mr. Bowser fail to timely comply with this Order, the court will proceed to impose sanctions pursuant to Fed. R. Civ. P. 37(b)(2) which may include, inter alia, recommending that Judge Campbell enter default judgment against Mr. Bowser.[7]

II. Plaintiffs’ motion to access Mr. Bowser's electronic devices is denied.

Plaintiffs’ motion also requests that the court grant Plaintiffs access to Mr. Bowser's iPad, iCloud, emails, and phone records. However, nowhere in the Discovery Requests is such a request propounded upon Mr. Bowser. Because the scope of relief contemplated for a motion to compel under Rule 37(a) is limited to discovery requests propounded under Rule 34, this request is denied. Fed. R. Civ. P. 37(a)(3) (“A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if: ... (iv) a party fails to respond that inspection will be permitted—or fails to permit inspection — as requested under Rule 34.”). The court also denies this request on the basis that it is overly intrusive and not proportional to the needs of the case.

Instead this request appears to seek relief for an undeveloped destruction of evidence claim. Plaintiffs reference Rule 37(e) in the first sentence of the motion but wholly fail to substantively address the issue thereafter. Because this claim has not been properly presented, Plaintiffs’ request to access Mr. Bowser's iPad, iCloud, emails, and phone records is denied without prejudice.

III. Mr. Bowser is ordered to show cause why he should not be required to pay Plaintiffs’ reasonable expenses incurred in bringing this motion.

As a final matter, the court addresses the issue of an award of reasonable expenses to Plaintiffs in connection with their motion. Fed. R. Civ. P. 37(a)(5)(A). Under Rule 37, if a discovery motion is granted, “the court must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion ... to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Id. 37(a)(5)(A) (emphasis added). However, the court is not required to make such an award if, among other reasons, “the opposing party's nondisclosure, response, or objection was substantially justified; or ... other circumstances make an award of expenses unjust.” Id. 37(a)(5)(A)(ii), (iii). To determine whether the court should award expenses for Plaintiffs’ motion, Mr. Bowser is ordered to file a brief within 14 days of this Order addressing whether his failure to respond to Plaintiffs’ motion to compel was substantially justified and/or whether there are other circumstances that make an award unjust. Mr. Bowser's brief shall not exceed 5 pages including the caption, introduction, factual background, and legal argument. Failure to do so will result in a default award of expenses against Mr. Bowser in favor of Plaintiffs. Plaintiffs are ordered not to file a response unless the court requests further briefing.

*3 Based upon the foregoing, IT IS HEREBY ORDERED:

IT IS SO ORDERED.

DATED this 10th day of September 2020.

ECF No. 65.

ECF No. 170.

Defendant William Bowser (“Mr. Bowser”) has not responded to the motion. The court's staff attempted to contact Mr. Bowser, who is proceeding pro se, by phone on two occasions regarding this motion but was unable to reach him. The court also gave Mr. Bowser additional time to respond to the motion in light of his pro se status to provide him ample opportunity to be heard.

ECF No. 191.

ECF No. 191 at 3; ECF No. 193-3 at 2.

DUCivR 7-1(d) (“Failure to respond timely to a motion ... may result in the court[ ] granting the motion without further notice.”).

In the event Mr. Bowser does not comply with this Order, Plaintiffs should promptly notify the court by filing an appropriate motion.

ECF No. 191.