Order — United States v. Derges (Dkt. 58, W.D. Mo.)

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An order by United States Magistrate Judge David P. Rush in United States v. Patricia Ashton Derges, No. 21-03016-01-CR-S-BCW, in the U.S. District Court for the Western District of Missouri, Southern Division, filed September 9, 2021 as Document 58. It addresses three defense motions: for leave to file out of time a combined motion to depose a witness and compel production (doc. 55), the combined motion itself (doc. 56), and a motion to file exhibits under seal (doc. 57). The court denies the first two without prejudice for noncompliance with Local Rule 37.1 and for filing without leave, and denies the third as moot.

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IN THE UNITED STATES DISTRICT COURT
                                 WESTERN DISTRICT OF MISSOURI
                                      SOUTHERN DIVISION

UNITED STATES OF AMERICA,                                      )
                                                               )
                    Plaintiff,                                 )
                                                               )
v.                                                             )        No. 21-03016-01-CR-S-BCW
                                                               )
PATRICIA ASHTON DERGES,                                        )
                                                               )
                    Defendant.                                 )


                                                     ORDER

           Before the Court are three motions filed by Defendant: (1) Motion for Leave to File

Combined Motion For Leave to Depose Witness and to Compel [] Out of Time (doc. 55); (2)

Combined Motion for Leave to Depose Witness and Compel Government Production (doc. 56);

and (3) Motion for Leave to File Exhibits A Through D of Defendant’s Combined Motion for

Leave to Depose Witness and To Compel Under Seal (doc. 57). Upon review, the motions will be

DENIED.

           As Defendant has been previously advised, pursuant to Local Rule 37.1, no discovery

motions can be filed until: (1) the parties have met and conferred in good faith by telephone or in

person; and (2) if discovery issues remain unresolved after the attorneys have conferred, the parties

must submit to a telephone conference with the judge. 1 The rule requires the attorney for the

prospective moving party to “do more than merely write a demand letter” and specifically prohibits

the filing of a written discovery motion until after a telephone conference is held. Id. Here, the

Motion for Leave to File Combined Motion For Leave to Depose Witness and Compel [] Out of

Time (doc. 55) provides no evidence that defense counsel has conferred or attempted to confer by


1
    Local Rule 99.0 makes Local Rule 37.1 applicable to criminal proceedings.



             Case 6:21-cr-03016-BCW Document 58 Filed 09/09/21 Page 1 of 2

telephone or in person with opposing counsel regarding this matter. Even assuming the parties

conferred, when discovery issues remained unresolved after conferring, counsel for the prospective

moving party must arrange a telephone conference before the judge. L.R. 37.1(a)(2). As stated,

the rule specifically prohibits the filing of a written discovery motion until after a telephone

conference is held. Here, Defendant filed the motion prior to contacting chambers to schedule a

telephone conference on the discovery dispute regarding compelling the Government’s production

of witnesses for depositions. Accordingly, the Motion for Leave to Depose Witness and Compel

[] Out of Time (doc. 55) is DENIED without prejudice for noncompliance with Local Rule 37.1.

           Defendant’s Combined Motion for Leave to Depose Witness and Compel Government

Production (doc. 56) is also DENIED without prejudice as it was filed without leave. Counsel

is advised that when seeking leave to file a motion, the proposed motion should be filed as an

attachment to the motion for leave and not filed as a separate motion, since leave has not been

granted.

       And, based on the foregoing, the Motion for Leave to File Exhibits A Through D of

Defendant’s Combined Motion for Leave to Depose Witness and To Compel Under Seal (doc. 57)

is DENIED as moot.

       IT IS SO ORDERED.

                                                    /s/ David P. Rush
                                                    DAVID P. RUSH
                                                    UNITED STATES MAGISTRATE JUDGE

DATE: September 9, 2021




            Case 6:21-cr-03016-BCW Document 58 Filed 09/09/21 Page 2 of 2

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