Opinion
ase No. 98-1360-MLB.
October 2000.
MEMORANDUM AND ORDER
This matter is before the court on the motion to compel (Doc. 839) filed by Thomas Dizerega and John McMillian, Trustees of the APCO Oil Corporation Liquidating Trust (collectively, "APCO Trust"). APCO Trust seeks an order compelling the City to provide supplemental responses to (1) interrogatories, (2) production requests, and (3) requests for admissions. The City opposes the motion. For the reasons stated below, the motion shall be denied. Before addressing the discovery requests, the court will address APCO Trust's duty to confer and the City's duty to supplement under Fed.R.Civ.P. 26(e).
Duty to Confer
A party moving to compel discovery must make reasonable efforts to confer and describe the efforts taken to resolve the discovery dispute without judicial intervention. Fed.R.Civ.P. 37(a)(2)(B) and D. Kan. Rule 37.2. The duty to confer generally requires counsel to "converse, confer, compare views, consult, and deliberate." VNA Plus, Inc. v. Apria Healthcare Group, Inc., No. Civ. A. 98-2138-KHV, 1999 WL 386949 at *2 (D. Kan. June 8, 1999) (quoting Augustine v. Adams, No. Civ. A. 95-2489-GTV, 1997 WL 260016, at *2) (D.Kan. May 8, 1997). "When the dispute involves objections to requested discovery, parties do not satisfy the conference requirements simply by requesting or demanding compliance with the requested discovery." Cotracom Commodity Trading Co. v. Seaboard Corporation, 189 F.R.D. 456 at 459 (D.Kan. 1999). The parties "must make genuine efforts to resolve the dispute by determining precisely what the requesting party is actually seeking; what responsive documents or information the discovering party is reasonably capable of producing; and what specific, genuine objections or other issues, if any, cannot be resolved without judicial intervention." Id. With these standards in mind, the court considers the following efforts to confer by APCO Trust.
On May 31, 2000, APCO Trust sent a five-page letter to the City setting out the discovery requests in dispute. It demanded that the City supplement its answers and also invited the City to contact the Trust's counsel to "discuss these matter further." On June 30, 2000 the City responded with a five-page letter which (1) supplemented certain answers, (2) clarified certain answers, and (3) explained in greater detail the City's views concerning certain requests. The letter concluded with a request that APCO Trust contact the City if there were additional questions or comments about the discovery issues. Despite the City's willingness and invitation to engage in further discussions, APCO Trust made no attempt to contact the City concerning the June 30 letter and filed this motion to compel on August 24, 2000.
Under the circumstances, the court finds that APCO Trust failed to put forth adequate efforts to confer in good faith to resolve the present discovery dispute. APCO Trust's arguments that (1) the June 30 letter failed to supplement the City's discovery answers and (2) the City "basically stood by all its prior objections" are without merit. The City's letter contains significant supplementation and clarification as well as a request to discuss the discovery controversy further. Because APCO Trust failed to show that it conferred in good faith with the City before bringing this motion, the motion to compel shall be denied.
For example, the City's June 30 letter identified the documents responsive to Interrogatory Nos. 15, 16, and 18 and stated that it had no additional documents. Despite this explanation, APCO Trust moves to compel Interrogatory Nos. 15, 16, and 18 and argues that if the City has identified and produced all responsive documents, it should state so in its supplemental answer. Other examples are described in greater detail within this opinion.
The ruling should come as no surprise. This is a complex case with multiple parties and the court has previously admonished all parties to confer in good faith before bringing a discovery dispute before the court. In general the parties have done a good job of conferring in this case and the failure to confer before filing this motion appears to be an aberration. However, the court is firmly convinced that many, if not all, of the disputes raised by the motion would have been resolved without judicial intervention had APCO Trust followed up on the City's June 30 letter.
Although this motion will be denied for failure to confer, the City's alternative arguments concerning (1) the City's duty to supplement discovery responses and (2) the individual discovery requests are also grounds for denying the motion to compel. Those arguments are discussed in greater detail below.
Duty to Supplement
A common argument running throughout APCO Trust's motion is that considerable discovery has been conducted by all parties in this case after the City filed its initial discovery responses and that the City should now be ordered to supplement those responses. The City maintains that it has supplemented its response where appropriate. However, the City argues that it is not required to supplement its responses where APCO Trust is the source of the additional information or has otherwise been made aware of the new information. As discussed below, the City's interpretation of its duty to supplement is correct and APCO Trust's argument to compel is rejected.
Fed.R.Civ.P. 26(e)(2) provides:
A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other party during the discovery process or in writing.Id.(emphasis added). The interrogatories and production requests in dispute focus primarily on what the City knows about APCO Trust and operations by APCO at a particular location. Since filing its original discovery responses, the City has served written discovery requests on APCO Trust and taken Rule 30(b)(6) depositions. Clearly, the City is not obligated to supplement by sending APCO Trust the information which the Trust produced during discovery. Id. Moreover, no showing has been made that APCO Trust has been precluded from attending any deposition in this case or viewing any parties' interrogatory answers or responses to production requests.
The court is not persuaded that an order compelling the City to supplement its discovery responses is appropriate. The City has correctly articulated the standard for disclosure under Rule 26(e)(2) and no showing has been made that the City has failed to comply with its duty. Having addressed this common argument, the court will address the individual discovery requests.
The City states that, although not legally obligated, it will supplement its interrogatory answers following the September 15, 2000, Rule 30(b)(6) deposition of APCO Trust. This concession reinforces the court's view that compliance with the duty to confer would have avoided the need for this motion.
InterrogatoriesI. Interrogatory No. 2
Interrogatory No. 2 asked the City to "list all facts" and identify all persons having knowledge that APCO Trust received all unsold assets of APCO and assumed all liabilities of APCO and its subsidiaries. The City objected that the request to "list all facts" was overbroad and then proceeded to state the material facts upon which the City based its allegation. The City's objection is sustained and the listing of the material facts was sufficient. See Lawrence v. First Kansas Bank Trust Co., 169 F.R.D. 657, 61-63 (D.Kan. 1996). Moreover, the creation of the APCO Trust by the Delaware Chancery Court are facts known to the trust and this request appears to be an exercise in gamesmanship. The motion to compel shall be denied.
II. Interrogatory Nos 3 and 4
Interrogatory No. 3 asked that the City "list all facts" and "identify all persons with knowledge" concerning an allegation in the City's complaint that APCO operated a facility at 1001 E. Lincoln Facility for the sale, storage, and distribution of industrial solvents. Interrogatory No. 4 asked that the City "list all facts" and "identify all persons with knowledge" that hazardous substances were disposed of at APCO's facility at 1001 E. Lincoln facility. The City again objected that the request for all facts was overbroad and then provided the material facts. The court sustains the objection and the City's answer is sufficient. The motion to compel Interrogatory Nos. 3 and 4 shall be denied.
The City's June 30 letter stated that it had no further documents in response to Interrogatory Nos. 3 and 4.
The City also argues that, after the filing of this motion to compel, APCO Trust has admitted that industrial solvents were sold at the 1001 E. Lincoln facility and that compelling discovery to Interrogatory No. 3 is superfluous and unnecessary. APCO Trust filed no reply brief and has waived its right to challenge this argument.
III. Interrogatory No. 9
Interrogatory No. 9 asked the City whether it investigated or considered other entities as potentially responsible parties for the 1001 E. Lincoln facility. If so, the City was asked to "list all facts" and "identify all persons" with knowledge of the investigation. The City objected that the interrogatory, in part, sought to invade the mental process of plaintiff's counsel and then, without waiving the objection, went on to provide an explanation of the City's investigation. The City has sufficiently answered and the motion to compel shall be denied.IV. Interrogatory No. 12
Interrogatory No. 12 asked the City to identify any and all persons the City has contacted or interviewed with regard to APCO, the APCO Trust, and the 1001 E. Lincoln facility. The City objected that the request was overly broad and unduly burdensome and then proceeded to list six individuals with particular knowledge of APCO, the APCO Trust or the operation of 1001 E. Lincoln facility. The City's June 30 letter explained that it considered the request overbroad because the City contacted countless people in an effort to track down (1) the corporate history of APCO, (2) the creation and location of the APCO Trust, and (3) operations at APCO's 1001 E. Lincoln facility. Many of the persons contacted provided little, if any, relevant information. The June 30 letter also explained that the City provided all documents and identified the individuals believed to have knowledge about APCO's operations at 1001 E. Lincoln, the site itself, and the relationship between APCO and the APCO Trust.The court agrees that the interrogatory is overbroad on its face. No purpose is served by requiring the City to identify all persons contacted by the City in trying to understand APCO, the trust, and 1001 E. Lincoln. APCO Trust paints with too broad a brush and would include persons who were contacted but have no relevant knowledge concerning this case. The City has sufficiently answered and the motion to compel shall be denied.
APCO Trust attempts to narrow the scope of the interrogatory in its brief. This illustrates the waste in time and resources when the movant fails to "converse, confer, compare views, consult, and deliberate" before filing the motion to compel. The court refuses to entertain this argument.
V. Interrogatory Nos. 15, 16, and 18
Interrogatory Nos. 15, 16, and 18 asked the City for information and documents related to APCO's possession, distribution, or sales of percholoethylene or trichloroethylene. The City asserted various objections and then went on to answer the interrogatories. In its June 30 letter, the City stated that it had no additional documents. Notwithstanding the City's statements in the June 30 letter, APCO Trust argues that the City should supplement its answer or state that it has no additional documents. The City's response brief states that it will voluntarily update its response with any information obtained in discovery since June 30. The motion to compel is moot and shall be denied.VI. Interrogatory No. 19
Interrogatory No. 19 is a highly compounded sentence which requested a detailed breakdown of the costs or expenditures incurred or to be incurred within the [Gilbert-Mosley] site, a detailed breakdown of the costs associated with spills by APCO, and a detailed breakdown of amounts which the City will seek from APCO Trust. The City responded that it was unable to "breakdown" the costs and expenses in the format requested by APCO Trust "because the harm caused by all defendants, including . . . APCO is indivisible." The City went on to provide documents reflecting its costs and expenditures for the site and those expected in the future. An expert report provides the "equitable allocation" of costs which the City seeks from APCO Trust.
APCO Trust moves to compel, speculating that "surely the City has this documentation readily available since it must have been utilized to arrive at such an exact figure in [the City's] recent expert report." The City counters that the costs are indivisible and it has no document showing that a particular cost on a particular day is solely attributable to one defendant rather than another. Based on equitable factors, the City's experts allocated the costs each defendant should be required to pay. The expert reports and documents upon which they relied have been made available.
The City has sufficiently answered the interrogatory by providing other information concerning the amount it seeks to recover and the motion to compel shall be denied. APCO has not persuaded the court that the information is available in the format and detail requested.
Requests For Admissions
APCO Trust moves to compel supplemental answers to its "Requests to Admit Facts" under Fed.R.Civ.P. 37. The motion will be summarily denied because Rule 37 and its provisions concerning motions to compel do not apply; requests for admission are governed by Fed.R.Civ.P. 36 which sets out the procedure and standards for determining the sufficiency of an answer or objection. Because APCO Trust did not confer in good faith concerning these requests, the court declines to construe the motion as a request to determine the sufficiency of answers to requests for admission under Rule 36. IT IS THEREFORE ORDERED that APCO Trust's motion to compel (Doc. 839) is DENIED.
The court has reviewed the requests and the City's responses. Despite APCO Trust's complaints, the City did state whether it admitted or denied each "request to admit facts." In some instances, the City included some qualifying language which argues the evidentiary value of the request and the City's admission. Raising evidentiary arguments in an answer is a questionable practice but the court perceives no prejudice in this instance. This is a CERCLA case which will be tried to the court; the trial judge can disregard those portions of the answers which lack relevance.