Hattrick v. City of Ketchikan et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BRUCE JOSEPH HATTRICK,
Plaintiff,
v.
CITY OF KETCHIKAN, JOHN
KLEINEGGER AND SETH
BRAKKE,
Defendants.
Case No. 5:20-cv-00013-SLG
ORDER RE PLAINTIFF’S DISCOVERY MOTION
Before the Court at Docket 55 is Plaintiff Bruce Joseph Hattrick’s discovery
motion.1 Defendants the City of Ketchikan, John Kleinegger, and Seth Brakke
(collectively, “the City”) filed a response in opposition to the motion at Docket 59.2
Mr. Hattrick filed his reply at Docket 60.3 Although the parties’ filings include
arguments relating to both discovery and summary judgment, here the Court
addresses only the parties’ arguments as relevant to Mr. Hattrick’s request for
1 Mr. Hattrick’s motion is titled as a motion for “Discovery of Information.” The motion includes
support for his discovery motion, as well as support for his motion for summary judgment, filed
separately at Docket 44.
2 Defendants’ opposition is titled “Reply in Support of Cross-Motion for Summary Judgement
and Opposition to Motion for Discovery.” The opposition includes arguments opposing Mr.
Hattrick’s discovery motion, as well as support for Defendants’ cross-motion for summary
judgment, filed separately at Docket 51.
3 Mr. Hattrick’s reply is titled “Reply to Opposition of Discovery, Clarify Issues, and Support
Summary Judgement.” The reply includes arguments in support of his discovery motion, as well
as support for his motion for summary judgment, filed separately at Docket 44.
Case 5:20-cv-00013-SLG Document 62 Filed 03/25/22 Page 1 of 8

Case No. 5:20-cv-00013-SLG, Hattrick v. City of Ketchikan, et al.
Order re Plaintiff’s Discovery Motion
Page 2 of 8
discovery. Mr. Hattrick’s motion for summary judgment and the City’s cross-motion
for summary judgment will be addressed by the Court by separate order. Oral
argument was not necessary to the Court’s determination of this discovery dispute.
BACKGROUND
The factual allegations of this case have been set forth in detail in the Court’s
September 13, 2021 order at Docket 41. The Court assumes familiarity here.
As relevant to this order, the Court issued an order adopting the parties’
proposed discovery plan on April 12, 2021.4 Thereafter, Mr. Hattrick served a
discovery request upon the City seeking documents responsive to ten inquiries.
Defendants filed their response on November 22, 2021, producing documents
responsive to six of Mr. Hattrick’s requests, while noting that due to the
“voluminous” nature of the materials sought by Mr. Hattrick, “[a]dditional material[s]
can be made available for inspection and copying at the expense of the plaintiff.”5
The City furthermore replied that no responsive documents exist with respect to
two of Mr. Hattrick’s requests, and objected to the production of documents
responsive to two additional requests on the basis of relevance and attorney-client
privilege, respectively.6
4 Docket 21 (Scheduling & Planning Order).
5 Docket 59-5 at 4 (Defs.’ Resp. to Pl.’s Disc. Req.).
6 Docket 59-5 at 2–3.
Case 5:20-cv-00013-SLG Document 62 Filed 03/25/22 Page 2 of 8

Case No. 5:20-cv-00013-SLG, Hattrick v. City of Ketchikan, et al.
Order re Plaintiff’s Discovery Motion
Page 3 of 8
In his discovery motion, Mr. Hattrick acknowledges that “defendants have
provided some of [his] request for discovery.”7 Mr. Hattrick states that he “spoke
with defendants’ attorneys who assured him that if he allowed them more time,
they would provide” some of the additional documents he requests in the
underlying motion.8 Nonetheless, Mr. Hattrick maintains that Defendants’
responses to his discovery requests are incomplete and that some responsive
documents have been withheld. Mr. Hattrick also asserts that the City’s invocation
of the attorney-client privilege should be overcome, or in the alternative, that the
City must produce “the minutes of the meetings where Hattrick has publicly
requested help from the city, to have the line extension agreement changed.”9 In
his motion, Mr. Hattrick makes new requests for the production of additional
documents, specifically seeking contracts pertaining to Chris Herby, Kelly Roth,
and “the original contract of Wold’s project.”10
In their response in opposition, Defendants assert that Mr. Hattrick failed to
engage in a good faith conferral and failed to certify that he had made such an
effort prior to filing his motion as required by Federal Rule of Civil
Procedure 37(a)(1) and Local Civil Rule 37.1.11 Without acknowledging Mr.
7 Docket 55 at 2 (Pl.’s Mot. for Disc. of Information).
8 Docket 55 at 2.
9 Docket 55 at 5–6.
10 Docket 55 at 6.
11 Docket 59 at 12 (Defs.’ Reply in Supp. of Cross-Motion for Summ. J. & Opp’n to Mot. for
Case 5:20-cv-00013-SLG Document 62 Filed 03/25/22 Page 3 of 8

Case No. 5:20-cv-00013-SLG, Hattrick v. City of Ketchikan, et al.
Order re Plaintiff’s Discovery Motion
Page 4 of 8
Hattrick’s claims regarding a verbal agreement between the parties with respect to
the scope of discovery, the City argues that several of the documents that Mr.
Hattrick seeks, including the Herby and Roth contracts, have not been conferred
upon by the parties.12 The City thus objects to the instant motion as “procedurally
flawed.”13 Addressing the merits of Mr. Hattrick’s discovery motion, the City
reiterates that the requested materials are “extremely voluminous” and therefore
that “additional contracts and documents [are] available for copying at Hattrick’s
expense.”14 With regard to the Chris Herby and Kelly Roth contracts requested by
Mr. Hattrick in his discovery motion, the City states that “[t]he Nordstrom Drive
HDPE line extension . . . had no formal contract” and that no contract pertaining to
Chris Herby could be identified.15 The City concludes that “[t]he discovery issues
can be taken up between the parties and likely resolved” without the need for
intervention from the Court.16
Mr. Hattrick’s reply reiterates his argument that Defendants have provided
only “partial discovery.”17 Specifically, Mr. Hattrick alleges that Defendants have
Disc.).
12 Docket 59 at 13.
13 Docket 59 at 12.
14 Docket 59 at 12.
15 Docket 59 at 13.
16 Docket 59 at 13.
17 Docket 60 at 3 (Pl.’s Reply to Opp’n of Disc., Clarify Issues, & Support Summ. J.).
Case 5:20-cv-00013-SLG Document 62 Filed 03/25/22 Page 4 of 8

Case No. 5:20-cv-00013-SLG, Hattrick v. City of Ketchikan, et al.
Order re Plaintiff’s Discovery Motion
Page 5 of 8
withheld a “compliance letter for Jackson Heights,”18 and adds that “[t]he city
seems to have left portions of the contract out” in its document production for both
Bamville and Valley Court.19
DISCUSSION
The pre-trial discovery process is governed by the Federal Rules of Civil
Procedure.20 Pursuant to Rule 34, a party seeking the production of documents
may serve upon the other party a request that “describe[s] with reasonable
particularity each item or category of items to be inspected.”21 The responding
party must then “respond in writing within 30 days” and specifically state whether
“inspection . . . will be permitted as requested” or alternatively “state with specificity
the grounds for objecting to the request, including the reasons.”22
As this District’s handbook for self-represented litigants makes clear, “[i]f the
parties have a discovery dispute, they should first make a good faith effort to
resolve the dispute between themselves.”23 Indeed, pursuant to Federal Rule
37(a)(1), a party seeking judicial intervention in a discovery dispute must “certi[fy]
18 Docket 60 at 3.
19 Docket 60 at 5.
20 See Fed. R. Civ. P. 26–37.
21 Fed. R. Civ. P. 34(b)(1)(A).
22 Fed. R. Civ. P. 34(b)(2)(A)–(B).
23 Off. of the Clerk of Ct., U.S. Dist. Ct. for the Dist. of Alaska, Representing Yourself in Alaska’s
Federal Court (The Pro Se Handbook) 21 (2020),
https://www.akd.uscourts.gov/sites/akd/files/ProSe_Handbook_Revised_2019_0.pdf.
Case 5:20-cv-00013-SLG Document 62 Filed 03/25/22 Page 5 of 8

Case No. 5:20-cv-00013-SLG, Hattrick v. City of Ketchikan, et al.
Order re Plaintiff’s Discovery Motion
Page 6 of 8
that the movant has in good faith conferred or attempted to confer” before filing its
motion.24 The “good faith confer[al]” is not a mere formality; instead it
contemplates “honesty in one’s purpose to meaningfully discuss the discovery
dispute” and “mandates a genuine attempt to resolve the discovery dispute through
non-judicial means.”25 At a minimum, this requirement entails “two-way
communication.”26
The purpose of the good faith conferral rule is to “encourage litigants to
resolve discovery disputes by informal means before filing a motion with the
court.”27 This District’s Local Civil Rule 37.1 underscores the importance of the
good faith conferral, providing that “[t]he [good faith conferral] certification required
by Fed. R. Civ. P. 37(a)(1) must be in the first paragraph of a discovery motion.”
The certification must include “the names of the parties who conferred or attempted
to confer, the manner by which they communicated, the dispute at issue, as well
as the dates, times, and results of their discussions, if any.”28 The failure to satisfy
the good faith conferral requirement is a basis to deny a motion to compel
discovery.29
24 Fed. R. Civ. P. 37(a)(1).
25 Shuffle Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1996).
26 Id.
27 Id. (citing Fed. R. Civ. P. 37 advisory committee’s note to 1993 amendment).
28 Id.
29 See, e.g., Dague v. Dumesic, 402 Fed. App’x 218, 219 (9th Cir. 2010) (upholding district
Case 5:20-cv-00013-SLG Document 62 Filed 03/25/22 Page 6 of 8

Case No. 5:20-cv-00013-SLG, Hattrick v. City of Ketchikan, et al.
Order re Plaintiff’s Discovery Motion
Page 7 of 8
This Court finds that Mr. Hattrick failed to fulfill both the “good faith confer[al]”
requirement in Rule 37(a)(1) and the corresponding requirement in Local Civil
Rule 37.1 to certify that such a conferral occurred in the first paragraph of a
discovery motion. For these reasons, this Court denies Mr. Hattrick’s discovery
motion. Even presuming the veracity of Mr. Hattrick’s contention that he and the
City’s attorneys reached a verbal agreement regarding the scope of his requested
discovery, this effort alone does not constitute “good faith” within the meaning of
Rule 37(a)(1). At a minimum, Mr. Hattrick must have communicated in writing with
the City regarding any shortcomings that he perceived in each of the City’s
discovery responses and then engaged in a good faith conferral to resolve each of
those discovery issues without judicial intervention. When the parties
communicate in this regard by e-mail, it allows the Court to be assured that a
meaningful good faith conferral has taken place.
The Court recognizes that Mr. Hattrick is a self-represented litigant who has
repeatedly sought to obtain discovery to support his claim. If Mr. Hattrick seeks
additional discovery, he should, pursuant to Rule 34, provide Defendants with a
list that identifies with “reasonable particularity each item or category of items” that
he seeks. Mr. Hattrick must then allow the City 30 days to respond to his request.
If the City then fails to respond to Mr. Hattrick’s satisfaction, he must thereafter
court’s award of attorney’s fees resulting from denial of movant’s discovery motion for failure to
“meet and confer[]” as required by Fed. R. Civ. P. 37(a)(1)).
Case 5:20-cv-00013-SLG Document 62 Filed 03/25/22 Page 7 of 8

Case No. 5:20-cv-00013-SLG, Hattrick v. City of Ketchikan, et al.
Order re Plaintiff’s Discovery Motion
Page 8 of 8
engage in a “good faith conferral” with the City and attempt to resolve each
disputed category of discovery before filing a motion to compel. Only then, if the
parties are still unable to resolve their dispute, may Mr. Hattrick motion this Court
to compel the discovery that he seeks. In compliance with Local Rule 37.1, in the
first paragraph of his motion Mr. Hattrick should certify that he has complied with
the “good faith confer[al]” prerequisite, including the actions he took to
meaningfully discuss the discovery dispute with the City and his efforts to reach a
resolution without judicial intervention. He should append to his motion the e-mail
communications memorializing these discussions. In addition, he should append
to his motion a copy of the discovery requests that he served on the City and a
copy of the City’s responses to those discovery requests; it is generally not
necessary to include the documents that were produced with the response. In the
motion, Mr. Hattrick should identify each specific response that he believes is
inadequate and state why he believes that specific response is inadequate.
CONCLUSION
In light of the foregoing, IT IS ORDERED that the discovery motion at Docket
55 is DENIED without prejudice.
DATED this 25th day of March, 2022 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Case 5:20-cv-00013-SLG Document 62 Filed 03/25/22 Page 8 of 8