Opinion
A03-040 CV (JWS), [Re: Motion at docket 36].
January 9, 2004
ORDER FROM CHAMBERS
I. MOTION PRESENTED
At docket 36, defendant Progressive Northwestern Insurance Company ("Progressive") moves to compel production from plaintiff Thomas Kyte pursuant to Rule 37, Federal Rules of Civil Procedure. The motion has been fully briefed. Oral argument has not been requested, and it would not assist the court.
II. BACKGROUND
Plaintiff Kyte was involved in a vehicular accident in June 2001; his vehicle and another operated by an uninsured motorist collided. Kyte was insured by Progressive, so he made a claim pursuant to the uninsured motorist provision of his policy, but Kyte and Progressive could not agree on the value of his claim. Kyte asked for arbitration, but Progressive declined, so Kyte filed an action in state court which Progressive timely removed to this court. In an order at docket 31, the court ruled that the dispute was not subject to arbitration, because the insurance policy requires both parties to agree to arbitration, and Progressive refused to arbitrate.
In a report filed at docket 15, the parties agreed, among other things, to exchange the information required by Rule 26(a)(1) not later than June 23, 2003. In an order at docket 22, the court established a time frame for the conduct of discovery in this case. Defendant served a discovery request which included both interrogatories and requests for production to which plaintiff responded on September 29, 2003. Asserting that plaintiff's response to the discovery request is inadequate and that plaintiff has also failed to fully comply with his discovery obligations under Rule 26(a)(1), defendant seeks an order compelling discovery and an award of fees incurred in making the motion. The discovery motion is timely.
Other facts and the court's analysis are set out in the next section of this order.
III. DISCUSSION
A. Duty to Confer In Good Faith
A motion to compel discovery "must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to secure the information or material without court action." A substantively identical condition applies to motions seeking to compel compliance with the disclosure requirements of Rule 26(a). Plaintiff Kyte asserts that Progressive's efforts to confer were inadequate, so the motion to compel should be denied.
The record shows that subsequent to Kyte's response to the request for discovery, Progressive's lawyer sent a letter to Kyte's lawyer dated October 14, 2003, in which he disputed the efficacy of plaintiff's objections, and then listed two interrogatories to which he perceived inadequate responses had been made and explained specifically why he thought the responses to those interrogatories were inadequate. The two interrogatories were numbered 1 and 6. Defendant's lawyer also pointed out that copies of Mr. Kytes' tax returns, which were said to be attached to the response to one of the requests for production, were not. He then said that his specific complaints about particular responses were examples and that all of the discovery responses were "inadequate" because "incomplete." The letter mentions nothing about the initial disclosures served by Kyte. Kyte's lawyer responded with a letter dated October 31, 2003, in which she explained her view that the original responses were adequate, and pointed out that as to the sweeping generalization that all responses were inadequate, the demand was "nonspecific," so that she was unsure what would be an acceptable response.
Doc. 36, Exhibit C.
Id.
Doc. 36, Exhibit D.
Id.
While the exchange of letters is far from a model effort to resolve the discovery dispute — such an effort would certainly include actually speaking to the other lawyer — the court is unable to say that in every case the lawyers must actually speak to one another. Here, the exchange of letters can fairly be read as an adequate effort to secure further responses to two specific interrogatories and one request for production, for there is evidence sufficient to support the proposition defendant's motion papers that a good faith effort to confer was accomplished as to these specific items to no avail. The same cannot be said for the other items, because defendant never gave plaintiff's counsel a meaningful chance to respond. The failure to explain defendants' concerns in more specific terms denied plaintiff a chance to respond and perhaps to have eliminated the need for court intervention.
B. Request For Further Rule 26(a) Disclosures
As noted, the exchange of correspondence between counsel does not address the allegedly inadequate compliance with Rule 26(a). So far as the court can discern, the parties' lawyers have not conferred about this alleged shortcoming. It follows that the request for further disclosure of information that may be required by that rule will be denied for failure to comply with the certification requirement in Rule 37(a)(2)(A).
B. Request To Compel Discovery
As noted above, there has been adequate effort to resolve the dispute over the sufficiency of plaintiff's response to Interrogatories 1 and 6 and one of the requests for production. As to all of the other allegedly inadequate responses, the motion must be denied for failure to confer.
Curiously, although the response to Interrogatory 1 was one of only two interrogatory responses which defense counsel took the trouble to discuss specifically in his letter to plaintiff's counsel, he offers utterly no argument to support an order requiring a further response to that interrogatory in his motion papers. The failure to support this request necessarily results in its denial.
The moving papers commence with a discussion of Interrogatory 2. See doc. 36 at p. 2, nor is Interrogatory 1 mentioned elsewhere. Id. pp. 1, 3-9.
See D. Ak. LR 7.1(d).
Interrogatory 6 reads as follows:
If you are claiming any past or future loss of earnings or loss of earning capacity as a result of this accident, please state the inclusive dates between which you were unable to work, the total amount of earnings you lost as a result of your absence, the nature of your employment immediately prior to the occurrence . . ., the amount of your earnings on a weekly, monthly or annual basis, and the name, title address and phone number of your immediate supervisor.
Doc. 36, Exhibit A at p. 14 of 24.
To this plaintiff responded:
Objection speculation. Without waiving, Plaintiff is self-employed as a general and plumbing mechanical contractor. He is his own supervisor. His duties include repair, removal, and new construction for buildings. Earnings vary, but he averages $18,000 (net) on an annual basis. Plaintiff was unable to work from 6/30/01 to 12/30/01. Plaintiff had to hire people to help him, because he was injured. . . . See also Responses to Request for Production No. 2 and 3. Plaintiff is attempting to locate his tax returns and will supplement upon receipt.
Id.
Defendant first argues that the objection has no merit. With that proposition, the court agrees, but despite the invocation of an inapposite objection, plaintiff provided an answer "without waiving" the objection whatever that means. Defendant next argues that the interrogatory answer fails to state or even estimate the amount of lost earnings. The court agrees that an estimate is not expressly given, but an estimate may be ascertained from the answer. Plaintiff begins by pointing out that he is self-employed and that his income varies. He says his average net income from his business is $18,000 per year and he lost six months of earnings so the estimated loss is $9,000. However, the problem is that plaintiff nowhere advises that this, or any other, estimate is what he actually claims. Maybe the second half of 2001 would have been a better than average period. Maybe it would have been worse. Defendant is entitled to know what plaintiff says his damages actually are. Finally, defendant asks that plaintiff be ordered to provide a "full response." However, with respect to the subsidiary inquiries included in the interrogatory, the answer is fully responsive. For example, the answer does establish that plaintiff seeks lost income, that he seeks it only for the period from June 30, 2001 thru December 1, 2001, and that he was his own supervisor.
Turning to the request for production which is at issue, the court notes that the request is Request No. 2. Defendant points out that despite reciting that the tax returns were attached to the response, they were not. Plaintiff concedes this point, for in his opposition he advises that the tax returns were subsequently produced on December 10, 2003. Late compliance may obviate the need to order additional production, but it does not, by itself, absolve plaintiff from possible responsibility to pay the costs of the motion to compel.
Doc. 37, Exhibit E.
In summary, the motion at docket 36 will be granted as to Interrogatory 6 and is found to have merit with respect to Request for Production 2. However, the motion will otherwise be denied for the reasons set forth above.
C. Award of Attorneys' Fees
Defendant seeks an award of its fees incurred in bringing the motion to compel at docket 36. Plaintiff has opposed the request. Rule 37 governs the award of such fees. The rule provides that where, as here, a motion to compel is granted in part and denied in part, the court may apportion the expenses of the motion "in a just manner." Here, the court concludes that it is just to require each party to bear its own motion costs. This game has already burnt more candle than it is worth and further argument to fine tune an award would be counterproductive.
IV. CONCLUSION
Defendant's motion at docket 36 is GRANTED in part and DENIED in part consistent with the preceding discussion. In addition to the response already given to Interrogatory 6, on or before February 9, 2004, plaintiff shall supplement his interrogatory answer by serving defendant with a supplemental answer which states the amount of his lost income for the relevant period, which is June 30, 2001 through December 30, 2001.