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NOW INTO COURT comes the United States of America, appearing through the
undersigned Assistant United States Attorney, and, pursuant to Rule 37(a) of the Federal Rules of
Civil Procedure, seeks an order compelling the plaintiffs to provide a copy of a surveillance video
taken at the time of the execution of the search warrant at issue in this matter or for the Court to
hold an evidentiary hearing under Rule 37(a) of the Federal Rules of Civil Procedure
WHEREFORE, in view of the foregoing and for the reasons more fully set forth in its
Memorandum in Support of Motion to Compel, the government respectfully requests that the
Case 2:10-cv-03452-HGB-ALC Document 55 Filed 02/22/11 Page 2 of 2
Court grant the government’s motion to compel or grant an evidentiary hearing as contemplated
by Rule 37(a).
Respectfully submitted,
JIM LETTEN
UNITED STATES ATTORNEY
s/Gregory M. Kennedy
GREGORY M. KENNEDY
Assistant United States Attorney
500 Poydras Street, Second Floor
New Orleans, Louisiana 70130
Telephone: (504) 680-3102
Email: Greg.Kennedy@usdoj.gov
CERTIFICATE OF SERVICE
I hereby certify that on February 22, 2011, I electronically filed the foregoing with
the Clerk of Court by using the CM/ECF system which will send a notice of
electronic filing to all counsel of record.
s/Gregory M. Kennedy
GREGORY M. KENNEDY
Assistant United States Attorney
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On February 17, 2011, the defendant, the United States of America, served a letter requesting
production of certain items on plaintiffs’ counsel. See Exhibit 1. The government specifically
requested a copy of a surveillance video referenced in the plaintiffs’ prior filings in this matter. Id.,
See Rec. Doc. 44, p. 3 and Rec. Doc. 51, p. 9. The government requested that the plaintiffs provide
the copy by February 18, 2011, due to the fast approaching hearing date of February 24, 2011. On
February 21, 2011, plaintiffs served a response to the request for production and indicated in the
letter that the plaintiffs were willing to exchange exhibits but that they would not provide a copy of
the surveillance video because they considered it to be “impeachment evidence.” See Exhibit 2. This
matter is currently set for an evidentiary hearing before this Court on Thursday, February 24, 2011.
Case 2:10-cv-03452-HGB-ALC Document 55-1 Filed 02/22/11 Page 2 of 4
Because the video is subject to discovery under the Federal Civil Rules of Procedure, regardless of
whether the plaintiffs intend to introduce it as impeachment evidence at the hearing, and due to the
time constraints involved, the government is requesting that this Court order the plaintiffs to provide
II. ARGUMENT
Rule 37(a)(3) addresses the failure to provide “an answer” to “an interrogatory” which
implies that some written responses were filed, but the respondent refused to provide sufficient
responses to all requests. See GRIMM, PAUL W., CHARLES S. FAX & PAUL MARK SANDLER,
DISCOVERY PROBLEMS AND THEIR SOLUTIONS 257-58 (ABA Publishing 2005) & 7 JAMES
WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 37.90 (Matthew Bender 3d ed.) (“The first
subdivision of Rule 37 does not address a party’s complete failure to respond to discovery, but rather
it addresses only inadequate responses or questionable objections. Rule 37(a)(3) adds that “[f]or
as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(3). The Rule finally provides that
“[a] party, upon reasonable notice to other parties ... may apply for an order compelling disclosure
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Here, the plaintiffs responded to government’s request but failed to provide the item
requested. Should the plaintiffs decide to use the video only for impeachment, it is still subject to
discovery.
Rule 26(b)(1) provides that the scope of discovery includes “any nonprivileged matter that
is relevant to any party’s claim or defense.” “[D]iscovery should ordinarily be allowed under the
concept of relevancy unless it is clear that the information sought has no possible bearing on claims
and defenses of the parties.” JAMES WM. MOORE, ET AL, 7 MOORE’S FEDERAL PRACTICE §
‘relevant to any party’s claim or defense’ must look beyond the allegation of a claim or defense to
The video is a real-time recording of the agents at the time of the execution of the search
warrant. As such, it is relevant to the hearing to be held before this Court. The intended use of the
video by the plaintiffs does not alter the fact that it is subject to discovery by the government.
In sum, the United States presently seeks from the Court an order requiring the plaintiffs to
provide the relevant video to the government in time to allow its review before the scheduled hearing
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Case 2:10-cv-03452-HGB-ALC Document 55-1 Filed 02/22/11 Page 4 of 4
III. CONCLUSION
For the above reasons, the Court should grant the United States’ motion to compel production
Respectfully submitted,
JIM LETTEN
UNITED STATES ATTORNEY
s/Gregory M. Kennedy
GREGORY M. KENNEDY
Assistant United States Attorney
500 Poydras Street, Second Floor
New Orleans, Louisiana 70130
Telephone: (504) 680-3102
Email: Greg.Kennedy@usdoj.gov
CERTIFICATE OF SERVICE
I hereby certify that on February 22, 2011, I electronically filed the foregoing with
the Clerk of Court by using the CM/ECF system which will send a notice of
electronic filing to all counsel of record.
s/Gregory M. Kennedy
GREGORY M. KENNEDY
Assistant United States Attorney
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Case 2:10-cv-03452-HGB-ALC Document 55-2 Filed 02/22/11 Page 1 of 2
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NOTICE OF SUBMISSION
PLEASE TAKE NOTICE that the undersigned will bring the attached motion to compel for
hearing at the Courtroom of the Honorable Judge Helen G. Berrigan, Hale Boggs Federal Building
at 500 Poydras St., Room C552, New Orleans, Louisiana 70130 on March 16, 2011, at 9:30 a.m., or
as soon thereafter as counsel can be heard, and that the motion will be submitted upon the pleadings
Respectfully submitted,
JIM LETTEN
UNITED STATES ATTORNEY
s/Gregory M. Kennedy
GREGORY M. KENNEDY
Assistant United States Attorney
500 Poydras Street, Second Floor
New Orleans, Louisiana 70130
Telephone: (504) 680-3102
Email: Greg.Kennedy@usdoj.gov
Case 2:10-cv-03452-HGB-ALC Document 55-2 Filed 02/22/11 Page 2 of 2
CERTIFICATE OF SERVICE
I hereby certify that on February 22, 2011, I electronically filed the foregoing with
the Clerk of Court by using the CM/ECF system which will send a notice of
electronic filing to all counsel of record.
s/Gregory M. Kennedy
GREGORY M. KENNEDY
Assistant United States Attorney
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