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explaining that because party's deposition had been taken, "no purpose would be served" by requiring response to the contention interrogatories
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CIVIL ACTION NO: 02-0537 SECTION: "J"(1)
April 8, 2003
HEARING ON MOTIONS
WITEX USA INC.'S MOTION FOR LEAVE TO AMEND (Rec. doc. 33)
DENIED
TRANSTAR'S MOTION TO COMPEL DISCOVERY (Rec. doc. 36)
GRANTED IN PART AND DENIED IN PART
Before the undersigned is the motion of the defendant, Witex USA, Inc. ("Witex"), for leave to amend its answer and counterclaim to add the affirmative defense of statute of frauds. Witex contends that discovery revealed that a written distributor agreement was never executed between it and the plaintiff, Standard Services Company, Inc. d/b/a Transtar Distributors ("Transtar"). Transtar filed its complaint on February 26, 2002. Rec. doc. 1. Witex filed an answer and counterclaim on April 29, 2002. Rec. doc. 3. The scheduling order provided that the deadline for amendments to the pleadings was June 24, 2002 with the trial set for February 3, 2003. Rec. doc. 6. On the joint motion of the parties, the undersigned extended some of the deadlines in the scheduling order but not the deadline for amending pleadings. Rec. doc. 12. The trial was continued on December 11, 2002, and again on February 21, 2003. Rec. docs. 16 and 28. The last order reset the trial for June 26, 2003 and provided that no other dates were changed or extended. Rec. doc. 28. Pursuant to the scheduling order, as amended, Witex's request for leave to amend is not timely.
In SW Enterprises, L.L.C. v. Southtrust Bank of Alabama, NA, 315 F.3d 533 (5th Cir. 2003), the Fifth Circuit held that Fed.R.Civ.P. 16(b) governs the amendment of pleadings after a deadline in a scheduling order has expired.
Only upon the movant's demonstration of good cause to modify the scheduling order will the more liberal standard of Rule 15(a) apply to the district court's decision to grant or deny leave.Id. at 536. The Fifth Circuit applied a four-part test to determine whether the district court's refusal to modify its scheduling order was an abuse of discretion: (1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice. Id. at 536. Witex contends that new evidence emerged during discovery so it should be relieved of the effect of the scheduling order. It contends that it just recently confirmed that neither party possessed a signed written distributorship agreement. Witex's explanation is inadequate. It could have pled the defenses in the alternative based on its failure to find a signed distributorship agreement in its own files prior to the deadline for amending pleadings. Witex has not demonstrated the importance of the amendment. Transtar may be prejudiced in its trial preparations if the amendment is permitted. The case has been set for trial three times. A continuance is not available to cure any prejudice to the Transtar. Witex has not demonstrated good cause to modify the scheduling order and therefore it is not necessary to consider the liberal standard found in Fed.R.Civ.P. 15(a). The motion for leave to amend will be denied.
Also before the undersigned is the motion of Transtar to compel discovery and for sanctions. Transtar seeks additional answers to contention interrogatories related to Witex's affirmative defenses or its denials of Transtar's allegations concerning its performance as a distributor. Witex states that because Transtar and various present and former employees were deposed it should not be required to answer contention type interrogatories. An interrogatory is not objectionable merely because the answer to an interrogatory involves an opinion or contention. 7 James Wm. Moore, et al., Moore's Federal Practice ¶ 33.78 (3d ed. 1997). If the responding party can demonstrate that the information is available from another source, there is some authority which supports relieving the responding party from answering the contention interrogatories. Id. Inasmuch as Transtar has taken Witex's deposition, no purpose would be served in having Witex respond to the contention interrogatories.
The contention interrogatories were interrogatory nos. 1, 2, 4, 5, 6, 8, 15, 16 and 17.
Interrogatory no. 24. seeks the identification of persons who Transtar may or will call as fact witnesses. Transtar must provide an initial list now and a final witness list in accord with the scheduling order. The initial list shall be provided within five (5) working days of the entry of this order.
Transtar raises two issues with respect to Witex's responses to a request for production of documents. First, Transtar contends that Witex failed to provide a privilege log. In response to each document request Witex states it will produce non-privileged or otherwise protected documents. This is insufficient. Pursuant to Fed.R.Civ.P. 26(b)(5) a privilege log must be provided when a party withholds information otherwise discoverable by claiming it is privileged or protected as trial preparation materials. The privilege issues raised by Witex shall be resolved as follows:
1. Within ten (10) working days of the entry of this order Witex shall submit a privilege log to Transtar. Each page of the documents withheld from production shall be separately numbered. The privilege log shall include a detailed description of the contents of EACH DOCUMENT, including the page numbers, date, description, originator, recipients and the nature of the privilege asserted. Attachments are considered separate documents.
2. After receipt of the privilege log Transtar and Witex shall meet and confer in person or by telephone concerning EACH DOCUMENT. Transtar shall initiate this conference.
3. If the parties are unable to resolve the issue after meeting, Transtar shall filed a motion to compel and said motion shall include the following:
a. A certificate showing that the parties have met and conferred in accord with number 2 above;
b. The privilege log; and
c. A memorandum that separately addresses each document in contention.
4. Witex shall provide a memorandum in support of its position that separately addresses each document and it shall produce the documents that remain in contention for in camera inspection.
Transtar also contends that Witex's responses are inadequate because it did not produce any documents in response to some discovery requests or the documents produced are insufficient. For example, in document request no. 30 Transtar asks for the production of any Mary Carter agreement relating to this litigation. Subject to its privilege claims, Witex states that all responsive documents will be produced at a time, date and location mutually agreeable to counsel. If Witex contends that a responsive document is privileged it will be required to identify it on the privilege log as required above.
If Witex does not contend that a responsive document is privileged, Transtar urges that Witex be required to state whether or not such an agreement exists. Witex's opposition states it has produced all documents responsive to all of the discovery requests, including the contention type document requests. Pursuant to Fed.R.Civ.P. 34(b), it is not required to make a further response except for the requirement that it prepare a privilege log.
Transtar's motion to compel is also denied as to document request nos. 2-36 for the same reason its motion to compel responses to its contention interrogatories was denied.
Transtar's request for sanctions is denied.
IT IS ORDERED that: (1) Witex's motion for leave to amend (Rec. doc. 33) is DENIED; and Transtar's motion to compel discovery (Rec. doc. 36) is GRANTED IN PART AND DENIED IN PART in accord with the provisions of this minute entry.