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stating that a party that does not assert objections to discovery within time permitted by rule, stipulation, or court order waives objections and is precluded from asserting objections in response to a motion to compel
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Case No. 6:11-cv-69-Orl-19GJK
12-07-2011
MOHAMMED SALEEM SIDDIQ, ZARINA SALEEM SIDDIQ, Plaintiffs, v. SAUDI ARABIAN AIRLINES CORPORATION, Defendant.
ORDER
This cause came on for consideration, without oral argument, on the following motion:
MOTION: PLAINTIFFS' OPPOSED RENEWED MOTION TO COMPEL DISCOVERY FROM DEFENDANT AND TO COMPEL DEPOSITIONS OF DEFENDANT'S EMPLOYEES/FLIGHT CREW MEMBERS (Doc. No. 37)
FILED: November 7, 2011
THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part.
I. BACKGROUND
On January 18, 2011, Plaintiffs, Mohammed Saleem Siddiq and Zarina Saleem Siddiq, filed a five count Complaint against Defendant, Saud Arabian Airlines Corporation. Doc. No. 1. The gravamen of the Complaint is that Defendant failed to have necessary medical equipment in its medical equipment kit and failed to make an emergency landing upon learning that Mr. Siddiq was having a heart attack while on its flight from Jeddah, Saudi Arabia to Washington Dulles International Airport on April 11, 2010. Doc. No. 1.
Plaintiffs asserted claim a claim under the Montreal Convention, Article 17, as well as common law claims of negligence, negligent infliction of emotional distress, breach of contract and loss of consortium. Doc. No. 1 at 6-11.
On August 25, 2011, Plaintiffs served their fourth request for production on Defendant, seeking six categories of documents. Doc. No. 37 at 12-13. On September 9, 2011, Plaintiffs served their fifth request for production on Defendant, seeking seven categories of documents. Doc. No. 37 at 18-19. On November 7, 2011, Plaintiff filed a renewed motion to compel (hereafter "Motion"). Doc. No. 37. Plaintiffs seek an order compelling Defendant to produce documents responsive to Requests 1 and 5 in the fourth request for production and all seven requests in their fifth request for production within ten days from the date of the Court's order. Doc. No. 37 at 4-6, 9. Plaintiffs also request an order setting dates certain for the depositions of two flight attendants and two crew members. Doc. No. 37 at 7, 9.
On November 21, 2011, Plaintiffs supplemented their Motion by informing the Court that the Motion was moot as to Request No. 1 of their fourth request for production, Request Nos. 1, 2 and 5 of their fifth request for production and their request for an order setting dates for the depositions of two flight attendants. Doc. No. 38 at 1-2. In their supplement, Plaintiffs request an order directing Defendant to produce Captain Zarie and Captain Salem for deposition within the next forty-five (45) days. Plaintiffs represent that Defendant has indicated that Captain Zarie is retired, but contends that both Captains are Defendant's personnel and, therefore, "Defendant is best suited to locate them and coordinate a time for their availability." Doc. No. 38 at 2 n.2.
On November 22, 2011, Defendant filed its response to the Motion. Doc. No. 39. Accompanying the response is a declaration from Defandant's counsel, Stephen J. Fearon. Doc. No. 40. In the declaration, Mr. Fearon avers that he advised Plaintiffs, by e-mail, that Captain Zarie retired from Defendant's employ and that both he and Captain Salem are unavailable for depositions. Doc. No. 40 at 1-2, ¶ 3. Mr. Fearon avers that he advised Plaintiffs that Captain Salem is mourning the death of his wife and "Plaintiffs' counsel said that he did not wish to inconvenience [him] under these circumstances." Doc. No. 40 at 2, ¶ 6. Mr. Fearon further avers that it was "recommended that the depositions of these Captains be scheduled on a future date in Saudi Arabia. Plaintiffs' counsel expressed opposition to this proposal." Doc. No. 40 at 2, ¶ 7.
Plaintiffs have not filed a counter affidavit in opposition to Mr. Fearon's declaration.
II. LAW
Parties may obtain discovery on "any nonprivileged matter that is relevant to any party's claim or defense . . . ." Fed. R. Civ. P. 26(b)(1). A party is entitled to the facts relevant to the litigation. Dunkin' Donuts, Inc. v. Mary's Donuts, Inc., 206 F.R.D. 518, 520 (S.D. Fla. 2002). The party seeking discovery has the threshold burden of demonstrating that the discovery requested is relevant. Zorn v. Principal Life Ins. Co., 2010 WL 3282982 at *2 (S.D. Ga. Aug. 18, 2010) (citing Canada v. Hotel Development-Texas, Ltd., 2008 WL 3171940 at *1 (N.D. Tex. July 30, 2008)). Relevant information need not be admissible at trial, but rather discovery must be "reasonably calculated to lead to the discovery of admissible evidence." Id.
Demonstrating relevance progresses in layers. "When the discovery sought appears relevant on its face, the party resisting it must show the lack of relevance by demonstrating that it: (1) does not come within the broad scope of relevance as defined under discovery rule; or (2) is of such marginal relevance that the potential harm the discovery may cause would outweigh the presumption in favor of broad disclosure. When relevancy of a discovery request is not apparent on the face of the request, then the party seeking discovery has the burden to show its relevancy." Zorn, 2010 WL 3282982 at *2 n. 3 (S.D. Ga. Aug. 18, 2010) (citing Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 591 (D. Kan. 2003)). --------
"The discovery process is designed to fully inform the parties of the relevant facts involved in their case." U.S. v. Pepper's Steel & Alloys, Inc., 132 F.R.D. 695, 698 (S.D. Fla. 1990) (referencing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). "[A] party demanding discovery is required to set forth its requests simply, directly, not vaguely or ambiguously . . . ." Treister v. PNC Bank, 2007 WL 521935 at *2 (S.D. Fla. Feb. 15, 2007). "It is not a ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to discovery of admissible evidence." Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 616 (11th Cir. 1977); Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 179-80 (1989); Fed. R. Civ. P. 26(b).
Rule 34, Federal Rules of Civil Procedure, provides that a party may serve a request to produce documents upon another party that are within that party's "possession, custody, or control." Fed. R. Civ. P. 34(a)(1). "Control is defined not only as possession, but as the legal right to obtain the documents requested upon demand." Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984). A request to produce pursuant to Rule 34 "must describe with reasonable particularity each item or category of items to be inspected." Id. The Handbook on Civil Discovery Practice in the United States District Court for the Middle District of Florida (hereafter "Handbook") similarly provides that a request for documents "should be clear, concise, and reasonably particularized." Middle District Discovery (2001) at 10, III. A. 1.
When responding to a request for documents, "the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons." Fed. R. Civ. P. 34(b)(2)(B). If the responding party objects to part of the request, the responding party "must specify the part and permit inspection of the rest." Fed. R. Civ. P. 34(b)(2)(C). The Handbook further provides that "[w]hen the scope of the document production is narrowed by one or more objections, this fact and the nature of the documents withheld should be asserted explicitly." Middle District Discovery (2001) at 11, III. A. 7. A party that objects to a request as overbroad, when a narrower version would not be objectionable, should ordinarily produce documents responsive to the narrower version "without waiting for a resolution of the dispute over the scope of the request. When production is limited by a party's objection, the producing party should clearly describe the limitation in its response." Middle District Discovery (2001) at 11, III. A. 8. The party producing documents "shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request . . . ." Fed. R. Civ. P. 34(b)(i).
A party who fails to assert objections to discovery within the time permitted by the rule, stipulation or court order, waives any objections and is precluded "from asserting the objection in a response to a motion to compel." Middle District Discovery at 11, III. A. 6. Furthermore, if a party objects to a discovery request, but then responds to the request without complying with the aforementioned rules allowing a clearly defined partial response, the party is deemed to have waived its objection. See Sewell v. D'Alessandro & Woodyard, Inc., 2011 WL 1232347 at *2 (M.D. Fla. Mar. 30, 2011) (noting that courts deem an objection waived when it is accompanied by a response); Riley v. United Air Lines, Inc., 32 F.R.D. 230, 234 (S.D.N.Y. 1962); Meese v. Eaton Mfg. Co., 35 F.R.D. 162, 166 (N.D. Ohio 1964) ("Whenever an answer accompanies an objection, the objection is deemed waived and the answer, if responsive, stands."). Even if a party has waived its objections by voluntarily answering or clearly delineating its partial response, the court may still deny a motion to compel when the discovery request exceeds the bounds of fair discovery. See Fifty-Six Hope Road Music, Ltd. v. Mayah Collections, Inc., 2007 WL 1726558 at *4 (D. Nev. June 11, 2007); Carfagno v. Jackson Nat'l Life Ins. Co., 2001 WL 34059032 at *1 (W.D. Mich. Feb. 13, 2001); Kolenc v. Bellizzi, 1999 WL 92604 at *3 (S.D.N.Y. Feb. 22, 1999).
"Objections which state that a discovery request is 'vague, overly broad, or unduly burdensome' are, by themselves, meaningless, and are deemed without merit by this Court." Milinazzo v. State Farm Ins. Co., 2007 WL 4350865 at *2 (S.D. Fla. 2007) (citing Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982) ("[T]he mere statement by a party that the interrogatory was 'overly broad, burdensome, oppressive and irrelevant' is not adequate to voice a successful objection to an interrogatory."). The party objecting to the discovery request has the burden to explain, with specificity, why the request is unduly burdensome, vague, or overly broad. Id. Even when a party fails to object with specificity and the court compels a response to a discovery request, the court's order should compel only what is reasonable under the circumstances. See Lane v. Capital Acquisitions, 242 F.R.D. 667, 670 (S.D. Fla. 2005) (limiting discovery of financial records for a punitive damages claim that was overbroad on its face).
III. ANALYSIS
In their Motion, Plaintiffs seek an order compelling Defendant to produce responsive documents to five document requests and the two Captains for their depositions.
A. Fourth Request for Production
Request No. 5 seeks the following documents:
Copies of any investigations of the Siddiq heart attack incident prepared by Defendant or Defendant's agents or representatives IAW the Saudi Arabian Department of Economics and Regulation.Doc. No. 37 at 15-16. Thus, Plaintiffs seek copies of any investigation that Defendant prepared regarding Mr. Siddiq's heart attack. Defendant objects to Request No. 5 "as vague and ambiguous." Doc. No. 37 at 16.
Simply stating that a request is vague or ambiguous is meaningless. See Milinazzo, 2007 WL 4350865 at *2. Defendant is required to explain, with specificity, why the request is unduly burdensome, vague, or overly broad. Id. Defendant has not done so. Request No. 5 is reasonably calculated to lead to the discovery of admissible evidence. Accordingly, the Motion is GRANTED as to Request No. 5.
B. Fifth Request for Production
Request No. 3 seeks the following document:
SV Flight Attendant Manual that was in effect on April 11, 2010, with sections of the manual that show how to determine how an EMK (emergency medical kit) is to be inspected and serviced.Doc. No. 37 at 18. Thus, Plaintiffs seek the Flight Attendant Manual that was in effect on April 11, 2010. Defendant objects to Request No. 3 "to the extent it seeks documents not relevant to this action," but states it "is attempting to obtain such documents and will supplement this Response if and when the documents are available." Doc. No. 37 at 22.
Defendant contends the Motion should be denied because it "produced the document listing the contents of the Doctor's Emergency Kit, which also contains the dates of service and the items that were replaced during each service." Doc. No. 39 at 5. Defendant also contends that Plaintiffs' Complaint is exclusively governed by the Montreal Convention, Article 17. Doc. No. 39 at 5. As such, Defendant argues that whether its "employees had taken reasonable care to inspect the doctor's emergency kit is not relevant to the question of whether an 'accident' occurred; it would only be relevant in a common (state) law cause of action for negligence, which is preempted by the [Montreal] Convention." Doc. No. 39 at 6.
By indicating that it will produce the documents if and when they become available, Defendant has waived its relevancy objection. See Sewell, 2011 WL 1232347 at *2 (noting that courts deem an objection waived when it is accompanied by a response). The fact that Defendant has previously produced a document containing the contents, dates of service and items that were replaced in the Doctor's Emergency Kit is not responsive because Request No. 3 seeks Defendant's Flight Attendant Manual. Further, Plaintiffs assert a cause of action for negligence that has not been dismissed based on preemption. The information sought in Request No. 3 is reasonably calculated to lead to the discovery of admissible evidence. Accordingly, the Motion is GRANTED as to Request No. 3.
Request No. 4 seeks the following documents:
Maintenance records for SV aircraft B-777ER, registration HZ-AKA, (including both aircraft and cabin records from 04/01/10 until 04/20/11) to show how emergency equipment discrepancies were noted and corrected.Doc. No. 37 at 18. Thus, Plaintiffs seek all maintenance records for the aircraft showing how emergency equipment discrepancies were noted and corrected. Defendant objects to Request No. 4 "to the extent it seeks documents not relevant to this action," but states it "is attempting to obtain such documents and will supplement this Response if and when the documents are available." Doc. No. 37 at 22.
Defendant raises the same arguments in opposition as those raised to Request No. 3. By indicating that it will produce the documents if and when they become available, Defendant has waived its relevancy objection. See Sewell, 2011 WL 1232347 at *2 (noting that courts deem an objection waived when it is accompanied by a response). Request No. 4 is reasonably calculated to lead to the discovery of admissible evidence. Accordingly, the Motion is GRANTED as to Request No. 4.
Request No. 6 seeks the following documents:
Copies (in English) of all "commendation letters" referenced in the passage set forth below that was included in Defendant's Response to Plaintiff's 1st Request for Production:Doc. No. 37 at 18-19 (emphasis in original). Thus, Plaintiffs seek all commendation letters the crew members received from the captain of the flight regarding the incident at issue. Defendant responds that it "is attempting to locate such documents and Defendant reserves the right to supplement this Response at a later date." Doc. No. 37 at 23.
For your information, the crew members operating this flight have received commendation letters from the Captain who appreciated their efforts and their professionalism in dealing with this incident. They are highly academically trained to deal with first aid on board.
Signed by:
Abdul Aziz Abdullah Khan
Employee #11050272
In both its response to Request No. 6 and its response to the Motion, Defendant indicates that it is searching for the records and will produce them when they become available. See Doc. No. 39 at 7. Accordingly, the Motion is GRANTED as to Request No. 6.
Request No. 7 seeks the following documents:
Copies of all documents that illustrate and prove that "...They are highly academically trained to deal with first aid on board" as set forth in the passage by Mr. Khan above.Doc. No. 37 at 19 (emphasis in original). Thus, Plaintiffs seek all documents that prove the crew members were "highly academically trained" to deal with first aid on board the flight at issue. Defendant objects to Request No. 7 "as vague, overly broad and not susceptible to a complete and succinct answer." Doc. No. 37 at 23.
Simply stating that a request is vague or ambiguous is meaningless. See Milinazzo, 2007 WL 4350865 at *2. Defendant is required to explain, with specificity, why the request is unduly burdensome, vague, or overly broad. Id. Defendant has not done so. Request No. 7 is reasonably calculated to lead to the discovery of admissible evidence. Accordingly the Motion is GRANTED as to Request No. 7.
C. Depositions of Captains Zarie and Salem
Plaintiffs request this Court order Defendant produce Captains Zarie and Salem for deposition. Plaintiffs offer no authority for their argument that this Court can compel a corporate defendant to produce non-party individuals for deposition. The Court is unaware of any such authority. Accordingly, Plaintiffs' request for an Order directing Defendant to locate, produce and schedule the depositions of Captains Zarie and Salem is DENIED.
IV. CONCLUSION
Based on the foregoing the Court ORDERS the following:
1. The Motion is GRANTED in part and DENIED in part;
2. The Motion is GRANTED as to Request No. 5 of Plaintiffs' fourth request for production and any documents responsive thereto shall be produced on or before December 17, 2011;
3. The Motion is GRANTED as to Request Nos. 3, 4, 6 and 7 of Plaintiffs' fifth request for production and any documents responsive thereto shall be produced on or before December 17, 2011; and
4. The Motion is otherwise DENIED.
DONE and ORDERED in Orlando, Florida on December 7, 2011.
/s/_________
GREGORY J. KELLY
UNITED STATES MAGISTRATE JUDGE Copies to:
Counsel of record
Unrepresented parties