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Mark S. Wicklund v. James F. Page

June 29, 2011

MARK S. WICKLUND, PLAINTIFF,
v.
JAMES F. PAGE, AN INDIVIDUAL, DBA ASCERTAIN POLYGRAPH SERVICES, DBA TREASURE VALLEY POLYGRAPH, AND IDAHO DEPARTMENT OF CORRECTION, DEFENDANTS.



The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge

ORDER

Before the Court are two discovery motions. The first motion, filed by Defendant James Page on June 3, 2011, seeks to compel Plaintiff to answer discovery requests. (Dkt. 58.) The second motion was filed on June 8, 2011, by Ada County Prosecutor Shelley Armstrong, seeking to quash a subpoena served upon her by Plaintiff Mark Wicklund. (Dkt. 59.) The Court entered an order shortening time for responses and replies, which deadlines have expired. The parties have filed responsive briefing and the matters are now ripe for the Court's review. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record.

Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the Motions will be decided on the record before this Court without oral argument. Dist. Idaho L. Rule 7.1.

DISPOSITION

1. Defendant Page's Motion to Compel

On June 3, 2011, Defendant Page filed a motion to compel Plaintiff to respond to interrogatories and requests for production, which Page submitted to Plaintiff on March 21, 2011. Idaho R. Civ. P. 33(a)(2) requires the responding party to serve answers and objections within 30 days after being served. Plaintiff neither responded to the discovery requests, nor to the Motion to Compel.

This matter presents an unusual situation because the Court has not entered a scheduling order pursuant to Dist. Idaho L. Rule 16.1. Rule 16.1 indicates that, upon the Court's determination, certain cases may be exempted from the requirements of the rule, and may not necessitate a scheduling order. Because of the dispositive motions filed early in this case seeking dismissal, summary judgment and disqualification of counsel, the Court did not enter a case management order setting forth deadlines for discovery. Most recently, the Court issued a Report and Recommendation on January 27, 2011, (Dkt. 43), recommending that summary judgment be granted to Defendant Idaho Department of Correction ("IDOC"), thereby dismissing IDOC from this lawsuit and obviating the need for IDOC's participation should the District Judge adopt the recommendations.

And on May 25, 2011, the Court issued a second Report and Recommendation that recommended Defendant Page's motion for summary judgment be denied, but also that the District Judge impose deadlines for limited discovery, amending the pleadings, and filing a second motion for summary judgment. The Honorable Edward J. Lodge has not yet issued an order disposing of the two reports. Therefore, no deadlines are in place.

Nevertheless, the Rules of Civil Procedure are clear that, once asked, interrogatories "must be answered" and requests for production of documents "must" be responded to within 30 days. Fed. R. Civ. P. 33(b), 34(b)(2). Fed. R. Civ. P. 37 provides that a party may move for an order compelling disclosure or discovery once the party has conferred in good faith with the opposing party. Page included the requisite certification.

Considering Plaintiff failed to proffer any objection to the motion to compel, and the Court cannot discern good cause for Plaintiff's failure to respond in light of the Court's recommendation that limited discovery be permitted, the Court will grant Page's motion.

2. Armstrong's Motion to Quash

Deputy Ada County Prosecuting Attorney Shelly Armstrong was served with a subpoena on May 27, 2011, which requested deposition testimony and information from the Ada County Prosecuting Attorney's file related to the felony charge filed against Wicklund on May 8, 2001. By way of background, the facts are set forth in the Court's Report and Recommendation, (Dkt. 56), and will not be repeated in detail here other than setting forth the context of the instant motion.

Ms. Armstrong was the prosecuting attorney in the criminal case against Wicklund. She was responsible also for prosecuting Wicklund for violation of the terms of his probation, one of the underlying issues in this case. Wicklund's complaint arises out of a polygraph examination administered to him on January 11, 2008, by Defendant Page after Wicklund's probation officers learned of possible probation violations, specifically Wicklund's use of the internet. After the polygraph examination, probation revocation proceedings were initiated against Wicklund. Wicklund asserts in his Complaint that he did not understand the nature of his rights during the polygraph examination, and the statements he made during the examination were therefore coerced in violation of his Fifth Amendment privilege against self-incrimination.

Page requested summary judgment on the grounds that there was no disputed issue of material fact that Wicklund waived his Fifth Amendment right against self-incrimination and that the polygraph examination therefore did not constitute coercive police questioning in violation of Wicklund's civil rights. The Court denied Page's motion, finding that the material facts ...


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