IN THE CIRCUIT COURT FOR CARROLL COUNTY MARYLAND

WILLIAM JOHN JOSEPH HOGE, III

Plaintiff
v.
BRETT KIMBERLIN, et al.,
Defendants

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Case No. 06-C-16-070789

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DEFENDANTS REPLY TO PLAINTIFFS LATEST MOTION TO COMPEL

DISCOVERY
COMES NOW Defendant William M. Schmalfeldt, Sr. to REPLY to plaintiffs most
recent motion to compel discovery.
THIS COURT DENIED THE PLAINTIFFS PREVIOUS MOTION TO COMPEL
DISCOVERY ON DECEMBER 5, 2016 FOR FAILURE TO COMPLY WITH
MARYLAND RULE 2-431, WHICH REQUIRES A PARTY TO FILE A CERTIFICATE
OF GOOD FAITH ATTEMPT TO RESOLVE THE DISCOVERY DISPUTE BEFORE A
COURT WILL CONSIDER THE MOVING PARTYS COMPLAINT.
Maryland Rule 2-431 provides:
A dispute pertaining to discovery need not be considered by the court unless the attorney
seeking action by the court has filed a certificate describing the good faith attempts to
discuss with the opposing attorney the resolution of the dispute and certifying that they
are unable to reach agreement on the disputed issues. The certificate shall include the
date, time, and circumstances of each discussion or attempted discussion.
In his most recent motion to compel discovery, the plaintiff incorporates the certificate
required by the Rule. The only thing missing is the fact that there was no good faith effort to
resolve the discovery dispute. Plaintiff sent this Defendant a note essentially indicating, Do as I
say or I will seek sanctions. That hardly seems like a good faith effort to resolve a dispute any
more than, Give me your money or I will shoot you, would be a good faith effort to obtain
money from another person.

Maryland case law has established that beyond the actual certificate required by
Rule 2431, actual performance in good faith as set forth in the rules also required, and a
certificate itself, while mandatory, is not prima facie evidence of substantial compliance. As
Judge Battaglia of the Court of Appeals wrote:
The element of good faith, mandated by the Maryland discovery rules, is central to the
entire discovery process. Rodriguez v. Clark, 400 M.D. 39, 61 (2007).
Thus, [i]n addition to including the actual certification with emotion compelling
discovery, the movement must have performed as set forth in the rule. Shuffle Master,
Inc., v. Progressive Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1966)
A single letter between counsel which addresses the discovery dispute does not satisfy
the duty to confer. Williams v. Brd. Of County Comms, 192 F.R.D. 698, 700, (D. Kan.
2000)
This defendant does not consider a short, brusque letter from the Plaintiff basically
stating do as I say, or else to be a good faith effort to resolve differences, and as noted in the
above-cited cases cannot be considered as such.
The Plaintiff admits he wants Defendant to answer Interrogatories 7 and 8 to assist him in
obtaining discovery as to the names of potential defendants he wishes to sue. It is not this
Defendants job to do Plaintiffs discovery for him
CONCLUSION
WHEREFORE, Defendant Schmalfeldt asks the Court to deny the Plaintiffs latest
motion to compel him to answer the irrelevant interrogatories.

DATE: December 20, 2016

Respectfully Submitted,

William M. Schmalfeldt, Sr.

3209 S. Lake Dr. Apt. 108
Saint Francis, WI 53235
(414) 249-4379
bschmalfeldt@twc.com
CERTIFICATE OF SERVICE
I certify that on the 20th day of December, 2016, I served copies of the foregoing on the
following persons:
WJJ Hoge III via e-mail as agreed
Brett and Tetyana Kimberlin via e-mail as agreed.

William M. Schmalfeldt, Sr.

AFFADAVIT
I, William M. Schmalfeldt, Sr., solemnly affirm under the penalty of perjury that the
contents of the foregoing filing are true top the best of my knowledge, information and belief.

DATE: December 20, 2016

William M. Schmalfeldt, Sr.