Opinion
Civil Action No: 01-2554 Section: "M"(1)
November 15, 2002
HEARING ON MOTIONS
APPEARANCES: Submitted on briefs
MOTION:
CERTAIN DEFENDANTS' JOINT MOTION TO COMPEL PLAINTIFFS' RESPONSES TO DEFENDANTS' SECOND SET OF INTERROGATORIES (Rec. doc. 169)
GRANTED IN PART AND DENIED IN PART
FLEMING AND ASSOCIATES L.L.P.'S MOTION TO COMPEL PLAINTIFFS' RESPONSES TO THE THIRD REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY FLEMING ASSOCIATES, L.L.P. (Rec. doc. 168)
GRANTED IN PART AND DENIED IN PART
Before the undersigned are: (1) the motion of certain defendants, Fleming Associates L.L.P., George M. Fleming and Bruce Kemp (the "Fleming Group"), to compel the plaintiffs to fully respond to their second set of interrogatories and (2) the motion of Fleming Associates L.L.P. (the "Fleming law firm") to compel plaintiffs' responses to its third request for production of documents.
1) The Fleming Group's Motion
The Fleming Group's motion seeks responses to fourteen interrogatories.
Interrogatory No. 1.
The Fleming Group requests the identity of all persons with knowledge of the allegations of the plaintiffs' complaint. The plaintiffs' response refers to their answer to another interrogatory and their initial disclosures. Because neither of these were provided to the undersigned, it is not possible to determine whether the plaintiffs have identified all persons with knowledge of the allegations of the complaint. The May 30, 2002 minute entry required that the plaintiffs do this. Rec. doc. 90 at p. 5. If the plaintiffs have not specifically identified these persons, they shall supplement their answer to this interrogatory within seven (7) working days.
Interrogatory No. 2.
For each person identified in response to interrogatory no. 1 the Fleming Group requests a brief summary of the facts and circumstances that are within his or her knowledge. Again the plaintiffs' response refers to a discovery response that has not been provided to the undersigned. The May 30, 2002 minute entry required that this information be provided. Id. The minute entry also permitted the plaintiffs to refer to paragraphs in their complaint "for the response as to any individual identified." Id. If the plaintiffs chose to refer to the complaint to show the knowledge of the facts and circumstances that a person possesses, then the plaintiffs must refer to specific paragraphs in the complaints. If the plaintiffs have not provided the information sought, they shall supplement their answer within seven (7) working days.
Interrogatory nos. 3-14.
In interrogatory no. 3 for each alleged improper act that the plaintiffs contend was committed by John Grayson the plaintiffs are asked to: (a) describe the act; (b) state its date; (c) state whether plaintiffs relied on it; and (d) if so, how they relied on it. Interrogatory no. 4 seeks substantially the same information for each alleged misrepresentation. Interrogatory no. 5 seeks similar information for any documents filed by John Grayson in any of the legal matters described in plaintiffs' complaint or the RICO case statement.
The remaining interrogatories seek the same information for three other parties: Interrogatory nos. 6-8 (Bruce Kemp); Interrogatory nos. 9-11 (George Fleming); and Interrogatory nos. 12-14 (Fleming Associates, L.L.P.).
The plaintiffs respond that the interrogatories are premature because of the scheduling order of October 16, 2002 (Rec. doc. 157), and cite New England Data Services, Inc. v. Becher, 829 F.2d 286 (1st Cir. 1987), for the proposition that they cannot be compelled to provide information that is uniquely in the possession of the defendants. The plaintiffs also refer to their RICO case statement and paragraphs in their complaint.
In the May 20, 2002 minute entry, the undersigned found that the RICO case statement showed that the defendants needed written discovery in order to prepare for oral discovery and trial. Rec. doc. 90 at p. 8. The minute entry permitted the defendants to serve one set of one hundred interrogatories with each subpart counting as one interrogatory. Rec. doc. 90 at pp. 8-9.
The plaintiffs argument that their responses to the interrogatories should be deferred until the defendants have produced documents and been deposed is without merit. In New England Data Services the issue before the First Circuit was whether Fed.R.Civ.P. 9(b) should be applied to RICO mail and wire fraud as strictly as the circuit applied the Rule to securities fraud and general fraud. The district court dismissed the complaint. The First Circuit held that in a RICO mail and wire fraud case, where the specific allegations of the plaintiff make it likely that the defendant used interstate mail or telecommunications facilities and the "specific information as to use [was] likely in the exclusive control of the defendant," the district court should determine whether the RICO claim warrants the allowance of discovery. 829 F.2d at 290. The First Circuit's narrow exception to the pleading requirements for fraud does not provide the plaintiffs with a dispensation from all written discovery.
Each defendant has a right to know what the plaintiffs contend were his alleged improper acts and misrepresentations and what documents filed by him allegedly contain false or misleading statements. By no later than February 14, 2003 the plaintiffs shall answer interrogatory nos. 3 through 14. By that same date the plaintiffs shall treat each defendant in this action as having propounded three interrogatories similar to interrogatory nos. 3-4 and shall answer those three interrogatories for each defendant in this action. In providing the answers the plaintiffs shall not refer to the complaint or the RICO case statement.
Oral depositions are set to begin on May 25, 2003. In order to permit the defendants to prepare for these depositions the plaintiffs shall supplement their responses to interrogatory nos. 3-14 and interrogatory nos. 3-4 for each defendant in this action by no later than Friday, May 9, 2003. Additional information may be developed by the plaintiffs in the oral depositions and the plaintiffs shall supplement their discovery responses in accord with the Federal Rules of Civil Procedure.
2) The Fleming Law Firm's Motion
The Fleming law firm served a third request for production of documents on each of the plaintiffs. The plaintiffs responded that they will produce either the documents responsive to the requests or a privilege log in accord with the scheduling order. The plaintiffs make no objections regarding the breadth or relevancy of the requests for documents. By November 15, 2002, as provided in the scheduling order, the plaintiffs shall produce all non-privileged documents responsive to the Fleming law firm's third request for production and a privilege log for documents responsive to the request that plaintiffs contend are protected from disclosure.
IT IS ORDERED that: (1) the motion of Fleming Associates L.L.P., George M. Fleming and Bruce Kemp to compel the plaintiffs to fully respond to their second set of interrogatories (Rec. doc. 169) is GRANTED in PART AND DENIED in PART; (2) the motion of Fleming Associates L.L.P. to compel plaintiffs' responses to the third request for production of documents served by Fleming Associates (Rec. doc. 168) is GRANTED in PART and DENIED in PART; and (3) by February 14, 2003, the plaintiffs shall provide each defendant with the information specified on page 4 of this minute entry and the plaintiffs shall supplement this information by May 9, 2003.