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Hernandez v. Soares

February 16, 2006

EDMUNDO HERNANDEZ, PLAINTIFF,
v.
RICHARD SOARES, TIM SMELSER, AND TREVOR WILLIAMS, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Boyd N. Boland

ORDER

This matter is before me on the plaintiff's Motion for Amendment of Judgment [sic] and Reconsideration and/or to Vacate Court's Order of January 30, 2006 (Doc. #47), filed February 16, 2006.

On January 26, 2006, the plaintiff filed a "Motion to Request for [sic] Production of Documents and All Evidence" (Doc. #36). The motion sought production of certain documents for inspection and copying. On January 30, 2006, I construed the motion as a request for an order to compel the defendants to produce discovery, and I denied the motion because there was no indication in the record that the plaintiff attempted to obtain the discovery pursuant to the rules prior to filing the motion. Order issued January 30, 2006 (Doc. #42).

The plaintiff requests that I vacate, amend, or reconsider my January 30 order because he did not intend for his motion to be a motion to compel under Rule 37, Fed.R.Civ.P.; the motion was intended to be a request for production of documents pursuant to Rules 26(a)(1)(B) and 34(a)(1) and (b), Fed.R.Civ.P. "Had the Plaintiff wanted his Motion to be construed pursuant to Fed.R.Civ.P. 37, he would have asserted it in his motion . . . ." Motion for Amendment of Judgment and Reconsideration and/or to Vacate Court's Order of January 30, 2006, p. 1, ¶ 4.

I grant the plaintiff's request to vacate my order of January 26, 2006. I construe the plaintiff's "Motion to Request for [sic] Production of Documents and All Evidence" as a request for production of documents pursuant to Rules 26 and 34, Fed.R.Civ.P.

Disclosures under Rule 26(a)(1) or (2) and requests for production of documents pursuant to Rule 43 "must not be filed [with the Court] until they are used in the proceeding or the court orders filing . . . ." Fed.R.Civ.P. 5(d) (emphasis added). The plaintiff's requests for production of documents are not being used in this proceeding, and I have not ordered that they be filed. Accordingly, the plaintiff's "Motion to Request for [sic] Production of Documents and All Evidence" is stricken.

Written discovery requests simply are served on opposing counsel and are not filed with the court.

IT IS ORDERED that the plaintiff's Motion for Amendment of Judgment and Reconsideration and/or to Vacate Court's Order of January 30, 2006 (Doc. #47) is GRANTED.

IT IS FURTHER ORDERED that my Order dated January 30, 2006 (Doc. #42) is VACATED.

IT IS FURTHER ORDERED that the plaintiff's Motion to Request for [sic] Production of Documents and All Evidence (Doc. #36) is construed as a request for production of documents pursuant to Rules 26 and 34, Fed. R. Civ. P.

IT IS FURTHER ORDERED that the plaintiff's Motion to Request for [sic] Production of Documents and All Evidence (Doc. #36) is STRICKEN.

Boyd N. Boland United States Magistrate Judge

20060216

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