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holding that a motion to compel was timely when it was filed less than 30 days after the requesting party discovered at deposition that responsive information was in the possession of the opposing party, despite the fact that the motion was filed over two months after the initial response to the relevant discovery request
Summary of this case from Kankam v. University of Kansas Hospital AuthorityOpinion
Civil Action No. 01-2513-CM
January 21, 2003.
MEMORANDUM AND ORDER
Pending before the court is plaintiff's Motion to Compel Discovery Responses of Defendant (Doc. 36). Plaintiff asserts that defendant has failed to supplement its answers to an interrogatory propounded upon defendant by plaintiff. As detailed herein, plaintiff's motion is granted in part.
• Background
At issue are defendant's alleged failures to supplement interrogatory number 14 propounded upon defendant by plaintiff in its first set of interrogatories. On August 5, 2002, plaintiff propounded interrogatory number 14 upon defendant, asking defendant to "[p]lease identify each and every employee who worked for the company who was ever accused by Standard Register, it's (sic) agents or assigns, of violating a non-compete clause from the date of Standard Register's purchase to the present." On or about September 25, 2002, defendant responded that "[d]efendant objects to this interrogatory as overbroad in time and scope so as to seek information not relevant to these proceedings and not reasonably calculated to lead to the discovery of admissible evidence. In addition, defendant objects to this interrogatory as vague, ambiguous, and unduly burdensome and constitutes an invasion of privacy of the individuals for whom the information is sought."
Following defendant's response to plaintiff's first interrogatories, plaintiff immediately sought to depose two individuals identified in the responses, including Karen Hoffman and Richard Campbell. Plaintiff deposed these witnesses on November 20 and 21, 2002.
• Karen Hoffman Disclosure
Plaintiff represents that during the deposition of Karen Hoffman, a Human Resource Director for defendant, Ms. Hoffman testified "that she had recently terminated the employment of a former UARCO employee for violation of a non-compete agreement, but she could not remember that employee's name." (Pl.'s Mem. at 3).
Thereafter, on December 6, 2002, plaintiff forwarded a letter to defendant's counsel requesting the identity of the employee identified by Ms. Hoffman. Plaintiff's letter indicated that the name of this employee was information reasonably calculated to lead to the discovery of admissible evidence. Moreover, plaintiff's letter indicated that where an adequate response was not received by December 14, 2002, plaintiff would file a motion to compel. In response, on December 13, 2002, defendant forwarded a letter to plaintiff's counsel indicating that because Ms. Hoffman was not produced as a Federal Rule of Civil Procedure 30(b)(6) witness, defendant had "not followed up to procure any additional information on that subject." (Pl.'s Mem. Exh. 4). Plaintiff then filed this pending motion.
• Richard Campbell Disclosure
Plaintiff further represents that during the deposition of Richard Campbell, Area Vice President for defendant, Mr. Campbell testified "that he had been deposed in connection with a suit by a former Standard Register employee who may have alleged age discrimination against defendant. Mr. Campbell stated that he did not recall the identity of that employee." (Pl.'s Mem. at 4).
Thereafter, in plaintiff's December 6, 2002 letter to defendant's counsel, plaintiff requested the identity and last known address of the employee about which Mr. Campbell testified, along with a case caption. Plaintiff's letter indicated that where an adequate response was not received by December 14, 2002, plaintiff would file a motion to compel. In response, in its December 13, 2002 letter to plaintiff's counsel, defendant indicated that "as Richard Campbell's deposition was not a 30(b)(6) deposition, we have not undertaken any action to get additional information regarding his testimony that there had been a Standard Register employee terminated who `perhaps' was alleging age discrimination." (Pl.'s Mem. Exh. 4). Plaintiff then filed this pending motion.
• Discussion
Plaintiff contends that defendant's failure to provide the requested information is in violation of defendant's continuing obligation to supplement interrogatory number 14 pursuant to Federal Rule of Civil Procedure 26(e). In addition, plaintiff asserts that the identity of the individuals referenced by Ms. Hoffman and Mr. Campbell are "reasonably calculated to lead to the discovery of admissible evidence because [they] pertain to the Failure to Mitigate defense raised by defendant." (Pl.'s Mem. at 3 and 4).
A. Timeliness
Defendant counters by asserting several defenses. First, defendant contends that plaintiff's motion is untimely filed. The scheduling order entered in this case, along with D. Kan. Rule 37.1(b) provide that any motion to compel discovery was to be filed within 30 days of the default or service of the response. However, D. Kan. Rule 37.1(b) further provides that this time may be extended for good cause shown. Defendant asserts that because plaintiff failed to seek supplementation of interrogatory number 14 within 30 days of its service of responses to plaintiff, it is untimely and therefore waived. The court does not agree.
Here, plaintiff had no basis for assuming that information arguably responsive to interrogatory number 14 was within the knowledge of defendant until the date of Ms. Hoffman and Mr. Campbell's depositions. Upon learning of what he believed to be responsive information, plaintiff immediately requested disclosure. Therefore, although defendant submitted its response to interrogatory number 14 on September 25, 2002, the depositions which placed plaintiff on notice of the potentially responsive information were taken November 20 and 21, 2002. Thereafter, plaintiff sent a letter to defendant on December 6, 2002 seeking disclosure of the information at issue here. After providing defendant with an opportunity to disclose, plaintiff filed the present motion on December 20, 2002. The court finds under these circumstances that plaintiff's motion to compel is not untimely submitted.
• Significance of Rule 30(b)(6) Designation
Second, defendant contends that because neither Ms. Hoffman nor Mr. Campbell were identified as Rule 30(b)(6) witnesses, no duty to supplement existed. The court does not agree. Although Ms. Hoffman and Mr. Campbell were not produced as Rule 30(b)(6) witnesses, a designation that would have required them to testify on behalf of defendant "as to all matters known or reasonably available to it and . . . require[d them] . . . to review all matters known or reasonably available to [them] in preparation for the 30(b)(6) deposition," the absence of this designation does not relieve defendant of its duty to respond to continuing discovery requests or to supplement answers to prior discovery responses. Fed.R.Civ.P. 30(b)(6); T W Funding Co. XII, L.L.C. v. Pennant Rent-A-Car Midwest, Inc., 210 F.R.D. 730, 734-35 (D.Kan. 2002). This duty to supplement applies even where the information arguably requiring supplementation is revealed in the deposition of a witness not produced pursuant to Rule 30(b)(6).
• Relevancy
Third, with respect to Ms. Hoffman's disclosure, defendant contends that plaintiff fails to establish the relevance of the individual identified to its failure to mitigate defense. Relevancy in the discovery context is broadly construed. Folsom v. Heartland Bank, No. Civ. A 98-2308-GTV, 1999 WL 322691, at *1 (D.Kan. May 14, 1999). Generally, a relevant matter may be "any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case." Oil, Chemical Atomic Workers Local Union No. 6-418 v. N.L.R.B., 711 F.2d 348, 360 (D.C. Cir. 1983). A relevant matter is one that is "reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1).
Accordingly, a request for discovery should be considered relevant if there is "any possibility" that the information sought may be relevant to the claim or defense of any party. Scott v. Leavenworth Unified Sch. Dist. No. 453, 190 F.R.D. 583, 585 (D.Kan. 1999); Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D.Kan. 1999). A request for discovery should be allowed "unless it is clear that the information sought can have no possible bearing" on the claim or defense of a party. Scott, 190 F.R.D. at 585 (quoting Snowden v. Connaught Labs., 137 F.R.D. 336, 341 (D.Kan. 1991) (emphasis added by Scott)).
Scott and Etienne were decided under the prior version of Fed.R.Civ.P. 26(b)(1), which provided that parties could obtain discovery regarding any matter "that is relevant to the subject matter involved in the pending action" (emphasis added). Despite the change in the Rule, the standard enunciated in Scott and Etienne still applies. Sheldon v. Vermonty, 204 F.R.D. 679, 690 n. 7 (D.Kan. 2001).
Here, plaintiff alleges claims of discrimination on the basis of age, of retaliation for the exercise of his rights under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and of breach of an employment contract. Defendant asserts as an affirmative defense that plaintiff failed to mitigate his damages by failing to use reasonable care and diligence in searching for a comparable position after his discharge. The pretrial order entered specifies that an issue of law related to this defense is "whether plaintiff is able to mitigate his damages because he is subject to a Salesman's Agreement which prohibits him from competing with defendant for an unspecified period of time." (Pretrial Order at 13). The manner in which defendant treated another employee who violated a non-compete employment agreement — potentially similar to the one plaintiff was subject — may not itself be admissible evidence. However, the court finds under the broad relevancy standard set forth above, that this information may lead to the discovery of admissible evidence. Accordingly, the court finds that plaintiff has established the relevancy of the discovery request. See Steil v. Humana Kansas City, Inc., 197 F.R.D. 442, 445 (D.Kan. 2000) (setting forth plaintiff's burden to establish relevancy where relevancy not apparent on its face).
• Duty to Supplement
Fourth, defendant contends that no duty to supplement interrogatory number 14 existed because plaintiff did not reference this interrogatory in his December 6 letter. The court is unpersuaded that plaintiff's failure to pinpoint the defendant's duty to supplement relieved defendant of its duty to do so. The duty to supplement prior discovery responses set out in Rule 26(e) charges a party to be on notice of the information previously requested.
• Scope of Interrogatory Number 14
Finally, with respect to Mr. Campbell's disclosure, defendant contends that no interrogatory covers the subject of the disclosure, therefore, no duty to supplement existed. The court agrees. Plaintiff seeks disclosure of information related to an alleged prior age discrimination claim against defendant. However, interrogatory number 14 does not seek this information. Accordingly, plaintiff's motion is denied to the extent it seeks to compel disclosure of information relating to a former age discrimination claim referenced at Mr. Campbell's deposition. The court finds that defendant had no duty to supplement an interrogatory with the requested information, where no interrogatory propounded covered the subject of the information.
• Fee Request
Pursuant to Federal Rule of Civil Procedure 37(a)(4)(A), when a motion to compel is granted "the court shall, after affording an opportunity to be heard, require the party . . . whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion including attorney's fees, unless the court finds that . . . the opposing party's . . . response or objection was substantially justified, or that other circumstances make an award of expenses unjust."
Here, the court has granted in part plaintiff's motion to compel. Moreover, defendant has been provided an opportunity through its responsive pleading to respond to plaintiff's request for fees. After considering the relevant factors, the court does find any special circumstances in this case that would make an award of fees and expenses unjust. Accordingly, the court finds that plaintiff is entitled to recover, pursuant to Fed.R.Civ.P. 37(a)(4)(A), the reasonable fees and expenses incurred in making the motion to compel only with respect to the portion of the motion granted by the court. Plaintiff shall submit an accounting of these fees and costs for approval by the court.
• Order IT IS THEREFORE ORDERED that plaintiff's Motion to Compel Discovery Responses of Defendant (Doc. 36) is granted in part. Defendant is hereby compelled to disclose the identity of the individual whose employment Ms. Hoffman terminated due to the violation of a non-compete agreement, as identified by Ms. Hoffman during her November 2002 deposition.
IT IS FURTHER ORDERED that plaintiff is entitled to recover, pursuant to Fed.R.Civ.P. 37(a)(4)(A), the reasonable fees and expenses incurred in making the motion to compel only with respect to the portion of the motion granted by the court. Plaintiff shall submit an accounting of these fees and costs for approval by the court on or before February 7, 2003.