UPCHURCH v. STATE OF INDIANA et al

1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TIMOTHY UPCHURCH, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:23-cv-01310-SEB-KMB
)
STATE OF INDIANA, et al., 	)
)
Defendants. 	)
)
)
TIMOTHY UPCHURCH, 	)
)
Consol Plaintiff, 	)
)
v. 	)
)
DELANA GARDNER, et al., 	)
)
Consol Defendants. 	)
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL
Presently pending before this Court is Plaintiff Timothy Upchurch's Motion to Compel.
[Dkt. 100.] 	For the reasons detailed below, the Motion is DENIED. 	Defendants' request for
attorneys' fees and expenses related to defendant the Motion is also DENIED.
I. 	RELEVANT BACKGROUND
This case arises from Plaintiff's claims of discrimination and retaliation against the Indiana
Department of Correction and individual Defendants based on events occurring during his
employment at the Correctional Industrial Facility (“CIF”). [Dkt. 64.] Plaintiff asserts that he has
been discriminated against based on his race and retaliated against based on his complaints of
discrimination. 	[Id. at 30-33.] 	The Complaint makes factual allegations regarding alleged
promotions received by Coby Richardson and Matthew Perry over Plaintiff. [See, e.g., id. at 23.]
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During discovery, Plaintiff served multiple sets of discovery requests seeking, among other
things, personnel documents related to employees who were promoted or considered for promotion
during the relevant period. [Dkt. 102 at 5-6.] In response to Plaintiff’s first two sets of Requests
for Production, in 2024 Defendants produced the complete personnel files of all employees who
Plaintiff identified as relevant comparators, including Mr. Richardson and Mr. Perry. 	[Id. at 5.]
Those productions included the documents contained in the physical personnel folders maintained
at CIF by the embedded State Personnel Department representative, Tina Melton. [Id. at 3.]
In June 2025, Plaintiff served a Fourth Set of Requests for Production which included the
discovery request at issue—Request for Production No. 2—again seeking documents relating to
Mr. Richardson’s 2022 promotion or demotion. [Dkt. 102-5.] Defendants objected to that request
as duplicative and redundant because of their prior production of the personnel files. 	[Id.]
Defendants explained that because CIF maintains personnel files exclusively in physical hard-copy
form, any documentation concerning an employee’s promotion or demotion would be expected to
appear in that file that had already been produced to Plaintiff. [Dkts. 102 at 6; 102-5.]
Non-expert and liability discovery in this case closed on July 25, 2025. 	[Dkt. 93.] 	On
August 22, 2025, Defendants supplemented their earlier productions after learning at Plaintiff’s
July deposition that Mr. Richardson personally retained two documents related to a brief promotion
in 2022, including a notification of shift/assignment change and a demotion letter, which were not
located in his personnel file. [Dkt. 102 at 8.] Defendants promptly produced those documents and
explained their source. [Dkt. 102-7.] Following this supplementation, Defendants and Ms. Melton
conducted an additional search for any other documents related to Mr. Richardson’s personnel file,
but no additional materials were located. [Id. at 9.]
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On August 25, 2025, Defendants filed a Motion for Summary Judgment. 	[Dkt. 89.]
Plaintiff has not yet responded to that motion, as his deadline to do so has been extended to
November 17, 2025. [Dkt. 108.]
On September 25, 2025, the Court held a Telephonic Discovery Conference related to the
discovery request detailed above as well as six other categories of documents that Plaintiff believed
still needed to be produced. [Dkt. 99.] At the Discovery Conference, Defendants maintained that
all documents responsive to Plaintiffs' Requests for Production had been produced, including those
responsive to Request No. 2. [Id. at 3.] In its Minute Entry from the Discovery Conference, the
Court stated as follows:
The categories of requested discovery at issue relate to non-expert and liability
discovery in this case. Over the course of the Discovery Conference, which lasted
80 minutes, the Court heard extensive argument from counsel on each of the seven
categories of documents. The Court repeatedly asked counsel how the disputes
raised are timely, given the applicable case management plan deadlines. At the end
of the Discovery Conference, the Court stated that Plaintiff may file a motion to
compel if he sees fit to do so; however, if the same arguments are presented in a
motion, the undersigned will deny a motion to compel related to requests two
through seven as untimely. Discovery in this case has been proceeding since 2023,
the case management plan deadline for completing non-expert and liability
discovery was July 25, 2025, the deadline to file a dispositive motions was August
25, 2025, and Defendants filed a dispositive motion on August 25, 2025. Plaintiff
did not contact the Court to request a discovery conference until September 17,
2025, which was nearly two months after the non-expert and liability discovery
deadline and almost one month after the dispositive motions deadline.
***
The Court held this Discovery Conference to facilitate discussion of the seven
disputed discovery categories and to confirm it understood the nature of the Parties'
disputes. Having confirmed that, the Court emphasizes that non-expert and liability
discovery in this case is closed. One limited exception to that statement may exist
for the first category of documents requested by Plaintiff as set forth in the Parties'
Joint Submission, given that Plaintiff's request in the category relates to a document
produced by Defendants on August 22, 2025. [Dkt. 96 at 3.] None of the other
categories in dispute have been timely raised. With regard to the first category of
documents, Defendants claim to have responded to that request "in full." [Dkt. 96
at 7.] Thus, if Plaintiff intends to file a motion to compel related to that category,
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he shall do so promptly and be very clear exactly what he is seeking as it relates to
that category.
[Dkt. 99 at 2-3 (original emphasis).]
On October 4, 2025, Plaintiff filed the present Motion to Compel, seeking production of
documents related to Request No. 2. 	[Dkt. 100.] 	Plaintiff also seeks to compel Defendants to
produce "all personnel documents of the person promoted and demoted with [Mr.] Richardson,
recently identified as Matthew Perry." [Id. at 3.]
II. 	LEGAL STANDARD
"Discovery is a mechanism to avoid surprise, disclose the nature of the controversy, narrow
the contested issues, and provide the parties a means by which to prepare for trial." Todd v. Ocwen
Loan Servicing, Inc., 2020 U.S. Dist. LEXIS 52212, at *3 (S.D. Ind. Jan. 30, 2020) (citing 8 Wright
& Miller, Federal Practice and Procedure § 2001, at 44-45 (2d ed. 1994)). Federal Rule of Civil
Procedure 26(b)(1) outlines the scope of permissible discovery and provides that parties to a civil
dispute are entitled to discover “any nonprivileged matter that is relevant to any party's claim or
defense and proportional to the needs of the case,” regardless of admissibility. Est. of Daniels by
Stover v. City of Indianapolis, 2021 U.S. Dist. LEXIS 200013, at *3 (S.D. Ind. Oct. 18, 2021)
(citing Fed. R. Civ. P. 26(b)(1)). 	The burden “rests upon the objecting party to show why a
particular discovery request is improper[,]” and the objecting party "must show with specificity
that the request is improper." Hunt v. Hubler Chevrolet, Inc., 2019 U.S. Dist. LEXIS 34137, at *5
(S.D. Ind. Mar. 4, 2019).
III. 	DISCUSSION
In the Motion to Compel, Plaintiff asserts that Defendants have not fully responded to
Request No. 2. 	[Dkt. 100.] 	Plaintiff also asserts that the Declaration of Wendy Knight filed in
support of Defendants' Motion for Summary Judgment identifies Mr. Perry as another individual
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who was promoted and demoted with Mr. Richardson, such that Defendants must know of
additional documentation related to Mr. Perry's promotion or demotion. 	[Id. at 2.] 	Plaintiff
thereby requests that the Court compel the "interview notes and letter of promotion of Coby
Richardson in 2022, and the personnel documents of the person promoted and demoted with
Richardson." 	[Id.] 	Plaintiff does not attach any evidence to support his assertion that such
documents remain outstanding.
Defendants oppose Plaintiff's Motion to Compel, arguing that they have fully complied
with Request No. 2 by producing Mr. Richardson’s entire personnel file in 2024 and later
supplementing their production with the only additional materials that Mr. Richardson personally
retained. Defendants also assert they have produced Mr. Perry's entire personnel file and that no
other documents exist. [Dkt. 102 at 10 n.6.] Defendants further contend that the pending motion
is untimely because fact discovery closed on July 25, 2025, and Plaintiff has had Mr. Richardson’s
personnel file since 2024. [Id. at 12.] They maintain that if Plaintiff believed any documents were
missing, he should have raised that concern during discovery, particularly because the only reason
Defendants learned of the two additional documents related to Mr. Richardson was through
Plaintiff’s own testimony at his deposition.1 [Id.] Defendants also ask the Court to award them
their attorneys' fees in defending the pending motion pursuant to Federal Rule of Civil Procedure
37(a)(5)(B). [Id. at 14.]
In reply, Plaintiff reiterates his belief that additional documents relating to Mr. Richardson’s
2022 promotion and demotion “should” exist, including interview notes and other materials he
contends are ordinarily generated during a promotion process. [Dkt. 105 at 5.] Plaintiff does not
1 The Court need not resolve Defendants’ timeliness argument because, even assuming Plaintiff's
Motion to Compel is timely, the Court denies the pending motion on the merits for the reasons
stated herein.
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attach any evidence in support of his suspicions that more documents "should" exist. He instead
argues that Defendants’ August 2025 supplementation shows that their earlier productions were
incomplete, and he asserts that the absence of further documentation suggests that Defendants
either failed to search all potential sources or removed or destroyed the materials. 	[Id. at 6.]
Plaintiff also maintains that his motion is timely because the Court permitted a motion limited to
Request No. 2 at the Discovery Conference. [Id.]
A. Request No. 2 and Mr. Perry's Personnel File
Plaintiff’s Motion relies on his belief that additional documents relating to Request No. 2
and Mr. Perry's personnel file “should” exist. 	[Dkt. 105 at 5.] 	Plaintiff identifies no evidence
supporting the existence of any materials that have not already been produced. 	He attaches no
affidavit, deposition excerpts, contemporaneous record, or other information suggesting that
additional documents were ever created or remain in Defendants’ custody or control.
Defendants are adamant that no additional documents exist. [Dkt. 102 at 12.] Plaintiff’s
speculation, without more, is insufficient to warrant compelling a further production. 	Courts
routinely reject motions to compel based solely on a party’s belief that additional documents
“must” exist. 	See GJMS, LLC v. Hamstra Builders, Inc., 2019 U.S. Dist. LEXIS 252004, at *5
(N.D. Ind. Oct. 1, 2019) ("While [Plaintiff] argues that it '[s]trains credulity' that source documents
from the loan do not exist, [Plaintiff] offers no particular evidence beyond its disbelief. Because
Defendants have clearly stated their position that these documents do not exist, they do not need
to respond further on that issue."); see also Fine Line Distribs. Inc. v. Rymer Meats Inc., 1994 U.S.
Dist. LEXIS 9730, at *9 (N.D. Ill. July 15, 1994) (denying motion to compel where plaintiff
offered “no proof to support” the contention that additional documents existed and finding
defendants’ representation acceptable absent contrary evidence). 	Likewise, unless a movant
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presents evidence that more responsive documents exist, a court “simply has no relief to afford
[plaintiff] at this juncture.” Echemendia v. Gene B. Glick Mgmt. Corp., 2007 U.S. Dist. LEXIS
8120, at *6 (N.D. Ind. Feb. 2, 2007).
Defendants represent that they produced Mr. Richardson’s entire CIF-maintained personnel
file in 2024 and supplemented that production in August 2025 when they located the only
additional documents in Mr. Richardson’s personal possession. [See dkt. 102 at 12 ("The Court
should deny the Motion because there is nothing more to produce.").] Defendants further explain
that CIF maintains its personnel files exclusively in physical form and that any documents relating
to an employee’s promotion or demotion would ordinarily be contained within that file. [Id. at 2.]
After learning at Plaintiff's deposition that Mr. Richardson personally retained some documents,
Defendants and Ms. Melton conducted an additional search but located no additional responsive
materials. 	[Id. at 9.] 	Similarly, Defendants assert that they have produced Mr. Perry's entire
personnel file and are not aware of any other documents that may exist. [Dkt. 102 at 10 n.6.]
Accordingly, based on Defendants’ detailed representations concerning their search efforts,
their August 2025 supplementation, and the physical nature of CIF’s personnel files, and in the
absence of any evidence from Plaintiff showing that additional materials exist, the Court finds no
basis to order further production. Accordingly, Plaintiff's Motion to Compel is DENIED. [Dkt.
100.]
B. Defendants' Attorneys' Fees Request
Defendants request an award of their fees and expenses incurred in responding to Plaintiff’s
Motion to Compel pursuant to Federal Rule of Civil Procedure 37(a)(5)(B). [Dkt. 102 at 14.] That
rule provides as follows:
If the motion is denied, the court may issue any protective order authorized under
Rule 26(c) and must, after giving an opportunity to be heard, require the movant,
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the attorney filing the motion, or both to pay the party or deponent who opposed
the motion its reasonable expenses incurred in opposing the motion, including
attorney's fees. But the court must not order this payment if the motion was
substantially justified or other circumstances make an award of expenses unjust.
Fed. R. Civ. Pro. 37(a)(5)(B).
Although the Court has denied Plaintiff's Motion to Compel on the merits, under the
circumstances presented in this case, it will not order Plaintiff to pay Defendants' fees and expenses
related to defending this motion. The Court heard extensive argument from counsel for the Parties
at the Discovery Conference that preceded this motion, which was related to seven categories of
documents. After that conference, the Court stated that
Plaintiff may file a motion to compel if he sees fit to do so; however, if the same
arguments are presented in a motion, the undersigned will deny a motion to compel
related to requests two through seven as untimely. . . . 	One limited exception to
that statement may exist for the first category of documents requested by Plaintiff
as set forth in the Parties' Joint Submission, given that Plaintiff's request in the
category relates to a document produced by Defendants on August 22, 2025.
[Dkt. 99.] Because Plaintiff chose to limit the pending Motion to Compel, even though it has now
been denied, the Court concludes that these circumstances make an award of expenses unjust, such
that the Court will not award Defendants their fees and expenses in opposing Plaintiff's motion.
Accordingly, Defendants’ request for fees and expenses is DENIED.
IV. 	CONCLUSION
For the reasons stated herein, Plaintiff’s Motion to Compel is DENIED. 	[Dkt. 100.]
Defendants’ request for fees and expenses under Federal Rule of Civil Procedure 37(a)(5)(B) is
also DENIED.
SO ORDERED.
Date: 11/17/2025
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Distribution:
All registered counsel of record via CM/ECF
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