Opinion
Civil Action No: 99-1996, Section: "J" (4).
August 1, 2000.
On June 20, 2000, plaintiff, Deirdra Robinson, ("plaintiff") filed a Motion to Compel (doc #29) against defendant, Air Liquide America Corporation ("defendant"), contending that the defendant's responses to the plaintiffs Interrogatory Nos. 2, 4, and 9 are vague and incomplete and that it has inappropriately objected to Interrogatory Nos. 3, 5, 6, and 8, as protected from discovery because of the work product doctrine. The plaintiff further seeks an award of attorney's fees and expenses incurred in filing the instant motion.
The defendant, on the other hand, contends that it has fully and adequately responded to the plaintiffs interrogatories, and that its work product objections are properly interposed. The defendant further objects to an award of attorney's fees and expenses, contending that the plaintiff failed to conduct the required Rule 37.1 conference. The Court will now consider the sufficiency of the defendant's objection to Interrogatory Nos. 2, 4 and 9.
I. Legal Analysis: Discovery Obligations
Rule 33 of the Federal Rules of Civil Procedure detail the affirmative obligations imposed on parties when responding to interrogatories: "[e]ach interrogatory shall be answered separately and filly in writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable." See Fed.R.Civ.Proc. 33(b)(1). An evasive or incomplete response is equal to a party's complete failure to respond. See Fed.R.Civ.Proc. 37(a)(3).
A. Interrogatory Nos. 2. 4 and 9
Plaintiff's Interrogatory No. 2 requires the defendant to identify the names, addresses, and telephone numbers of all persons having knowledge of the relevant facts. Interrogatory No. 4 similarly requires the defendant to confirm the existence of photographs, drawings and diagrams. The plaintiff complains that the defendant's response to Interrogatory Nos. 2 and 4 of "not applicable" is vague and evasive.
Interrogatory No. 2 requests that the defendant: "state the name, last known address, telephone number and present whereabouts, if known, of all persons known by the defendants to have any knowledge whatsoever concerning the circumstances surrounding the June 13, 1998 explosion in which Jerry Harness was killed." See Record doc. #30
Interrogatory No. 4 requests that the defendant: "state whether it has any photographs, drawings and/or diagrams of the area in which Jerry Harness was killed, the date when such items were prepared, the name and address of the person preparing them, and the name and address of the person in possession or custody thereof." Id.
The defendant, on the other hand, contends that it construes Interrogatory No. 2 as asking for an identification of eyewitnesses only and that because it has no first hand knowledge concerning the identity of witnesses, its response of "not applicable" is proper. The defendant further contends that because it has no documents responsive to Interrogatory No. 4, its response of "not applicable" is adequate.
Rule 26 expressly provides that within the proper scope of discovery is "the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter." See Fed.R.Civ.Proc. 26(b)(1) (emphasis added); Bell v. Swift Company, 283 F.2d 407, 409 (5th Cir. 1960) (citations omitted). See also 8 Wright Miller, Fed. Prac. Proc. Civ.2d § 2013, Identity of Witnesses (names and addresses of persons having knowledge of relevant facts is discoverable). A party's right to discover the names of persons having knowledge of relevant facts is not limited to eyewitnesses, but also includes those persons who have made investigation. See generally, 8 Wright Miller supra, at 199-200.
There can be no question that under Rule 26, the information requested in Interrogatory Nos. 2 and 4 is relevant and discoverable. See Fed.R.Civ.Proc. 26(b)(1). As such, the defendant had an affirmative obligation to provide a full and complete response to Interrogatory Nos. 2 and 4 within the applicable legal delays. If the defendant has no responsive documents in its possession, it then has an obligation to clearly convey that information to the plaintiff. The response "not applicable" is unclear.
The Court, likewise, finds the defendant's response to Interrogatory No. 9 deficient. The defendant's clarification of its response in its opposition memorandum does not comport with its affirmative obligation under the Federal Rules to provide a full and complete response, within the legal delays. The plaintiff's request for an order compelling the defendant to supplement its responses to Interrogatory Nos. 2, 4 and 9 is GRANTED. The defendant shall supplement its responses within twenty (20) days of this order.
Interrogatory No. 9 requests that the defendant: "state the method that fuel or air products, including but not limited to acetylene, oxygen and/or propane, are stored at the Louisiana Dock Company facility at 5006 River Road, Harahan, Louisiana, and the owner of the storage tanks for these products." Id.
B. Interrogatory Nos. 3, 5, 6, and 8
The plaintiff additionally contends that the defendant has inappropriately asserted a blanket work product objection to Interrogatory Nos. 3, 5, 6 and 8. The work-product doctrine shields from discovery the materials prepared by or for an attorney in preparation of litigation. Blockbuster Entertainment Corp. v. McComb Video, Inc., 145 F.R.D. 402, 403 (M.D. La. 1992). It protects two categories of materials: ordinary work-product and opinion work product. Snowden v. Connaught Lab. Inc., 137 F.R.D. 325, 330-32 (D. Kan. 1991); See generally Upjohn Co. v. U.S., 449 U.S. 383, 400-02 (1981).
The defendant provided the following identical response to each to the interrogatories: "Air Liquide America Corporation objects to this Interrogatory to the extent that it calls for work product prepared in anticipation of litigation and/or attorney client communications."
By its clear terms, however, Rule 26(b)(3) provides protection only for "documents and tangible things." See Fed.R.Civ.P. 26(b)(3). Accordingly, facts that the adverse party's lawyer or representative has learned, or the persons from whom he or she learned such facts, or the existence or nonexistence of documents, is discoverable, even though the documents themselves may not be subject to discovery. See e.g., Serted v. American Can Company, 535 F. Supp. 1072, 1080 (E.D. Wis. 1982) (names of all witnesses from whom statements have been taken are discoverable).
Interrogatory No. 3, 5, 6, and 8 require the defendant to confirm the existence of accident reports witness statements to identity persons from whom statements have been obtained; the date of the statement; to identity the person who secured the statement as well as to identify persons who have conducted investigations, and to identity reports or other written documents generated with respect to such investigation.
Interrogatory No. 3 requests that defendant: "state whether or not any accident report, oral or written, was made relative to the June 13, 1998 explosion in which Jerry Harness was killed, and, if so, state to whom the report was made, by whom it was made, when it was made, and whether the report was oral or written" Id.
Interrogatory No. 5 asks: "[h]ave you or any of your employees, attorneys or representatives, obtained a written or recorded statement with regard to the June 13, 1998 explosion in which Jerry Harness was killed from any person who has, or claims to have, knowledge of any of the facts involved in this action?" Id.
Interrogatory No. 6 requires the defendant to state the date, name, address and telephone number of those persons identified in defendant's response to Interrogatory No. 5 as having given a statement; the name, address, telephone number and occupation of the person who obtained the statement; and the name, address, telephone number and occupation of the person who has custody of the statement(s). Id.
Interrogatory No. 8 requires the defendant to: "state the name, address and employer of anyone who conducted an accident investigation, causation analysis or any other type of investigation relative to the explosion in which Jerry Harness was killed, and state whether any reports or other written documents were prepared subsequent to the investigation." Id.
The interrogatories seek only to discover underlying facts relevant to this litigation. The work product doctrine only guards against divulging an attorney's strategies and legal impressions. It does not protect facts, such as those sought by the plaintiff, concerning the mere creation of documents or facts contained within those documents. See generally Upjohn, 449 U.S. at 395-96 (work product doctrine does not extend to the underlying facts relevant to this litigation).
Accordingly, the Court finds the defendant's work product objection to be unfounded and improperly interposed. The plaintiff's request to compel the defendant to respond to Interrogatory Nos. 3, 5, 6 and 8 is, therefore, GRANTED. The defendant shall provide full and complete responses within twenty (20) days of this order.
C. Attorney's Fees
The plaintiff additionally seeks an award of attorney's fees and costs incurred in filing the instant motion. In response, the defendant contends that the plaintiff failed to conduct the required Rule 37.1 conference, and that therefore an award of attorney's fees is improper.
Local Rule 37.1E provides that:
"[n]o motion relative to discovery shall be accepted for filing unless accompanied by a certificate of counsel for the moving party stating that counsel have conferred in person or by telephone for purposes of amicably resolving the issues and stating why they are unable to agree or stating that opposing counsel has refused to so confer after reasonable notice. Counsel for the moving party shall arrange the conference."
While the Court finds that the plaintiff's motion does not technically comply with Local Rule 37.1, the defendant has represented that a Rule 37.1 conference would have been futile. Thus, because the Court finds the defendant's responses to be evasive and its' work product objections unfounded, an award of reasonable attorney's fees is appropriate. See Fed.R.Civ.Proc. 37(a)(4)(A).
Accordingly,
IT IS THEREFORE ORDERED that the plaintiff's Motion to Compel (doc #29) against defendant Air Liquide America Corporation is hereby GRANTED.
IT IS FURTHER ORDERED that the plaintiff's request for an order compelling the defendant to supplement its response to lnterrogatory Nos. 2, 4 and 9 is hereby GRANTED. The defendant shall supplement its response within twenty (20) days of this order.
IT IS FURTHER ORDERED that the plaintiff's request for an order compelling the defendant to respond to Interrogatory Nos. 3, 5, 6 and 8 is hereby GRANTED. The defendant shall provide complete responses within twenty (20) days of this order.
IT IS FURTHER ORDERED that the plaintiff's request for an award of reasonable attorney's fees incurred in filing the instant motion is hereby GRANTED. Should the plaintiff desire to pursue the award of fees, she should submit the appropriate documentation to the Court under Local Rule 54.2.