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KY
IN THE DISTRICT COURT OF TULSA COUNTY Fe Sb
STATEOOR, JOKS-AHOMA
AN IO: 19 JUN 27 2018
IN RE THE MARRIAGE OF: DON NEWBERRY
JOHN HUMPLEBY, cad STATE f, Court Clerk
Petitioner, ) OF OKLA, TULSA COUNTY
)
and ) Case No. FP-2018-25
)
VICTORIA BROSE, ) Docket B
Respondent. )
MOTION TO COMPEL DISCOVERY
COMES NOW the Petitioner, John Humpleby, pursuant to Title 12 Okla. Stat. § 3237(A),
hereby move for an order compelling discovery from Respondent. In support of the instant
Motion, Petitioner would show the Court as follows:
FACTS
1. This Court has jurisdiction over the parties and subject matter of this action,
2. On 23" day of April, Petitioner sent via U.S. Mail and email, the Respondent’s Discovery
Requests.
3. That Petitioner’s discovery responses became due on or about May 23, 2018.
4. Petitioner’s counsel spoke with Jason Lowe in Court on June 12, 2018.
5. Petitioner’s office emailed opposing counsel on June 15, 2015 and on June 25, 2018 with
no response.
6. That as of the date of this motion, Respondent has provided no responses to Petitioner’s
Request for Admissions, Interrogatories or Requests for Production.
ARGUMENT AND AUTHORITIES
THIS COURT SHOULD ISSUE AN ORDER COMPELLING RESPONSES TO
PETITIONER’S OUTSTANDING DISCOVERY REQUESTS AND DIRECTING
RESPONDENT TO REIMBURSE PETITIONER FOR ALL REASONABLE EXPENSES
INCURRED IN BRINGING THE INSTANT MOTION.A. Applicable Law
The rules governing discovery are clearly set forth in the Oklahoma Discovery Code. Okla.
Stat. Tit. 12 § 3226(B)(1) provides, in relevant part:
Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action, whether it
relates to the claim or defense of the party seeking discovery or to the claim
or defense of any other party, including the existence, description, nature,
custody, condition and location of any books, documents or tangible things
and the identity and location of persons having knowledge of any
discoverable matter. It is not grounds for objection that the information
sought will be inadmissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
i Though an attorney’s duty to integrity of the judicial process in conducting discovery should trump
any desire to achieve some short run advantage for his or her clients, judicial intervention
oftentimes becomes necessary. Okla. Stat. Title 12 § 3237(A) provides, in relevant part:
1. MOTION. If... a party fails to answer an interrogatory submitted
under Section 3233 of this title, or if a party, in response to a request
for inspection and copying submitted under Section 3234 of this title,
fails to respond that inspection or copying will be permitted as
requested or fails to permit inspection or copying as requested . . .
the discovering party may move for an order compelling an answer .
. or an order compelling inspection and copying in accordance with
the request . . .
Respondent has unjustifiably refused to answer Petitioner’s interrogatories, and
likewise failed to produce numerous documents that were requested by Petitioner and are
relevant to the causes of action asserted herein. This Court should now issue an order
compelling responses to Petitioner’s outstanding discovery requests.As mentioned above Fact No. 5, Petitioner has provided no responses to Respondent’s
Request for Admissions, Interrogatories or Requests for Production. Respondent now seeks an
order from this Court Compelling Petitioner to respond to these outstanding discovery requests.
B. In the event this Court Grants Petitioner’s Motion to Compel Discovery, Petitioner is
entitled to a reasonable attorney fee as compensation for being forced to bring the
same.
Okla. Stat. Title 12 § 3237(A)(4) provides, in relevant part:
If the motion [to compel responses to unanswered discovery] is granted,
the court shall, after opportunity for hearing, require the party ... whose
conduct necessitated the motion or the party or attorney advising such
conduct or both of them to pay the moving party the reasonable expenses
incurred in obtaining the order, including attorney fees, unless the court
finds that the opposition to the motion was substantially justified or that
other circumstances make an award of expenses unjust. (Emphasis
added)
There is a presumption in favor of expense shifting sanctions under § 3237, unless an exception
applies. Indeed, a court is not required “to fire a warning shot” before selecting a sanction.
Corporate Express, Inc. v. U.S. Office Products Co., 2000 WL 1644494, *6 (N.D..III.2000),
quoting Hal Commodities Cycles Mgmt. Co. v. Kirsch, 825 F.2d 1136, 1139 (7" Cir.1978). “[T]he
purpose [the sanction] must not be punitive, but rather compensatory, to redress harm that has been
caused, or coercive in order to secure further compliance.” Oxford Capital Illinois, L.L.C. v.
Sterling Payroll Financial, L.L.C., 2001 WL 1491521, *9 (N.D.II1.2001), citing South Suburban
Housing Center v. Berry, 186 F.3d 851, 854 (7" Cir.1999), and In the Matter of Maurice, 73 F.3d
124, 127, 128 (7" Cir.1995).
WHEREFORE, pursuant to Okla. Stat. Title 12 § 3237(A)(2), Petitioner would move this
Court to issue an Order compelling responses to the outstanding Interrogatories and Requests for
Production, and also order Respondent to pay the reasonable attorney fees incurred in bringing this
Motion to Compel Discovery as authorized by said statute., @ e
Respectfully Submitted:
FUNDERBURK AND ASSOCIATES, PLLC
f
Carl Funderburk, OBA #16497
1848 E 15" Street
Tulsa, OK 74104
Phone: (918) 599-8000
Fax: (918)599-8006
carl@funderburkandassociates.com
Attorney for Petitioner
By:
CERTIFICATE OF MAILING
Thereby certify that on the filed date stamp of filing, I caused to be mailed a true and
correct copy of the above and foregoing pleading to the following with proper postage prepaid:
Jason King
228 Robert S. Kerr Avenue #630
Oklahoma City, OK 73102
Carl P. Funderburk
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Co e e nm KY IN THE DISTRICT COURT OF TULSA COUNTY Fe Sb STATEOOR, JOKS-AHOMA AN IO: 19 JUN 27 2018 IN RE THE MARRIAGE OF: DON NEWBERRY JOHN HUMPLEBY, cad STATE f, Court Clerk Petitioner, ) OF OKLA, TULSA COUNTY ) and ) Case No. FP-2018-25 ) VICTORIA BROSE, ) Docket B Respondent. ) MOTION TO COMPEL DISCOVERY COMES NOW the Petitioner, John Humpleby, pursuant to Title 12 Okla. Stat. § 3237(A), hereby move for an order compelling discovery from Respondent. In support of the instant Motion, Petitioner would show the Court as follows: FACTS 1. This Court has jurisdiction over the parties and subject matter of this action, 2. On 23" day of April, Petitioner sent via U.S. Mail and email, the Respondent’s Discovery Requests. 3. That Petitioner’s discovery responses became due on or about May 23, 2018. 4. Petitioner’s counsel spoke with Jason Lowe in Court on June 12, 2018. 5. Petitioner’s office emailed opposing counsel on June 15, 2015 and on June 25, 2018 with no response. 6. That as of the date of this motion, Respondent has provided no responses to Petitioner’s Request for Admissions, Interrogatories or Requests for Production. ARGUMENT AND AUTHORITIES THIS COURT SHOULD ISSUE AN ORDER COMPELLING RESPONSES TO PETITIONER’S OUTSTANDING DISCOVERY REQUESTS AND DIRECTING RESPONDENT TO REIMBURSE PETITIONER FOR ALL REASONABLE EXPENSES INCURRED IN BRINGING THE INSTANT MOTION.A. Applicable Law The rules governing discovery are clearly set forth in the Oklahoma Discovery Code. Okla. Stat. Tit. 12 § 3226(B)(1) provides, in relevant part: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. i Though an attorney’s duty to integrity of the judicial process in conducting discovery should trump any desire to achieve some short run advantage for his or her clients, judicial intervention oftentimes becomes necessary. Okla. Stat. Title 12 § 3237(A) provides, in relevant part: 1. MOTION. If... a party fails to answer an interrogatory submitted under Section 3233 of this title, or if a party, in response to a request for inspection and copying submitted under Section 3234 of this title, fails to respond that inspection or copying will be permitted as requested or fails to permit inspection or copying as requested . . . the discovering party may move for an order compelling an answer . . or an order compelling inspection and copying in accordance with the request . . . Respondent has unjustifiably refused to answer Petitioner’s interrogatories, and likewise failed to produce numerous documents that were requested by Petitioner and are relevant to the causes of action asserted herein. This Court should now issue an order compelling responses to Petitioner’s outstanding discovery requests.As mentioned above Fact No. 5, Petitioner has provided no responses to Respondent’s Request for Admissions, Interrogatories or Requests for Production. Respondent now seeks an order from this Court Compelling Petitioner to respond to these outstanding discovery requests. B. In the event this Court Grants Petitioner’s Motion to Compel Discovery, Petitioner is entitled to a reasonable attorney fee as compensation for being forced to bring the same. Okla. Stat. Title 12 § 3237(A)(4) provides, in relevant part: If the motion [to compel responses to unanswered discovery] is granted, the court shall, after opportunity for hearing, require the party ... whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. (Emphasis added) There is a presumption in favor of expense shifting sanctions under § 3237, unless an exception applies. Indeed, a court is not required “to fire a warning shot” before selecting a sanction. Corporate Express, Inc. v. U.S. Office Products Co., 2000 WL 1644494, *6 (N.D..III.2000), quoting Hal Commodities Cycles Mgmt. Co. v. Kirsch, 825 F.2d 1136, 1139 (7" Cir.1978). “[T]he purpose [the sanction] must not be punitive, but rather compensatory, to redress harm that has been caused, or coercive in order to secure further compliance.” Oxford Capital Illinois, L.L.C. v. Sterling Payroll Financial, L.L.C., 2001 WL 1491521, *9 (N.D.II1.2001), citing South Suburban Housing Center v. Berry, 186 F.3d 851, 854 (7" Cir.1999), and In the Matter of Maurice, 73 F.3d 124, 127, 128 (7" Cir.1995). WHEREFORE, pursuant to Okla. Stat. Title 12 § 3237(A)(2), Petitioner would move this Court to issue an Order compelling responses to the outstanding Interrogatories and Requests for Production, and also order Respondent to pay the reasonable attorney fees incurred in bringing this Motion to Compel Discovery as authorized by said statute., @ e Respectfully Submitted: FUNDERBURK AND ASSOCIATES, PLLC f Carl Funderburk, OBA #16497 1848 E 15" Street Tulsa, OK 74104 Phone: (918) 599-8000 Fax: (918)599-8006 carl@funderburkandassociates.com Attorney for Petitioner By: CERTIFICATE OF MAILING Thereby certify that on the filed date stamp of filing, I caused to be mailed a true and correct copy of the above and foregoing pleading to the following with proper postage prepaid: Jason King 228 Robert S. Kerr Avenue #630 Oklahoma City, OK 73102 Carl P. Funderburk