Opinion
04 Civ. 4005 (LTS) (DFE), This is an ECF Case.
February 10, 2006
MEMORANDUM AND ORDER
My Memorandum and Order dated January 25, 2006 included the following:
On September 26, 2005, plaintiffs took [defendant Philip] Loria's deposition; . . . He testified that Prior to the law firm's investigation, he had no idea that Ramirez was using profanity, and that the use of profanity was the sole basis for firing Ramirez. (Tr. 227.) At Tr. 235, he testified: "The profanity he used was enumerated in my attorneys['] work documents. . . . If I looked at the documents I can tell you [what profanity he used]."
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An essential part of the case seems to be whether Ramirez's profanities did or did not convey gender animus. The exact specifics of the profanities can be crucial in a sexual harassment case.
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. . . [P]laintiffs have not asked for the report or the notes, or for any attorney advice, opinions, or mental impressions. Plaintiffs are only asking for information about the exact profanities uttered by Ramirez. This information is not protected by the attorney-client privilege. "Although an attorney-client communication is privileged . . ., the underlying information is not. . . ." In Re Six Grand Jury Witnesses, 979 F.2d 939, 945 (2d Cir. 1992). [Mr. Gringer's] law firm developed the information in anticipation of litigation and hence may invoke the work-product doctrine; but that doctrine says that "relevant, non-privileged facts may be discovered from an attorney's files where their production is essential to the opponent's preparation of its case." Id. at 944. I find that the exact specifics of the profanities are essential, and hence the defendants must produce that information. [emphasis added]
I hereby direct each of the four defendants to serve . . . separately signed and sworn answers to the following 16 interrogatories (to the best of each defendant's knowledge):
1. During the law firm's investigation of Ramirez, was the phrase "puta madre" attributed to Ramirez by anyone other than plaintiffs?
2. Did the law firm's report enumerate the phrase "puta madre" as having been uttered by Ramirez in the presence of any female housekeeper?
(Interrogatories 3 through 16 were very similar to 1 and 2, but asked about other profanities.)
On February 7, 2006, each defendant gave the same answer to each of the 16 interrogatories: "I do not believe Mr. Gringer told me specifically which profanities were used by Ramirez." But the odd-numbered interrogatories did not ask what Mr. Gringer "told" to anyone.
By letter faxed on February 8, Mr. Brenner asked me to impose sanctions under Rule 37. On February 9, I held a telephone conference with Mr. Brenner, Mr. Gringer, and Mr. Sturm. It appears that Mr. Brenner is moving for sanctions only against Mr. Gringer's clients (Broadway Plaza Hotel, Salvatore Loduca, and Philip Loria). I asked Mr. Gringer if his report to his clients had been entirely oral; he said yes. I reminded Mr. Gringer that Mr. Loria had testified: "The profanity [Ramirez] used was enumerated in my attorneys['] work documents." But Mr. Gringer said (according to my notes), "I don't know how Loria could know what was in my documents." Mr. Gringer also told me that he had understood that my interrogatories seek only what he had told to his clients. I said that, on the contrary, my interrogatories seek the exact profanities uttered by Ramirez in the presence of any female housekeeper, including the Spanish and any English translation. I also said that my interrogatories seek this information whether or not Mr. Gringer wrote it down. I expect that he will draft new answers, even though I am not requiring him to sign them.
In Hickman v. Taylor, 329 U.S. 495, 504, 513 (1947), the Supreme Court wrote:
. . . A party clearly cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his attorney. . . .
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. . . Search interrogatories directed to [Attorney] Fortenbaugh and the tug owners . . . all serve to reveal the facts in Fortenbaugh's possession to the fullest possible extent consistent with public policy.
"A party must disclose facts in its attorney's possession even though the facts have not been transmitted to the party." 8A Wright, Miller Marcus, Federal Practice and Procedure: Civil 2d § 2177. As to the interrogatories answers by Broadway Plaza Hotel, the following is particularly apt:
. . . [K]nowledge of officers and employees of Selb Manufacturing, relative to the subject matter of the instant cause, is imputed to the corporation itself. Thus Frey was duty bound to secure all information available to Selb. This would include information within the personal knowledge of former Selb employees, employed by Selb at the time this action commenced. Additionally, it would include information possessed by it corporate counsel.General Dynamics Corp. v. Selb Manufacturing Co., 481 F.2d 1204, 1210-11 (8th Cir. 1973) (citations omitted).
During my February 9 telephone conference, I gave Mr. Gringer's clients one last chance to answer my interrogatories properly. I directed them to serve complete answers (by fax and by mail) no later than noon on February 15, 2006. If they fail to comply, then I will order them to pay plaintiffs $500 per day and I will consider other sanctions as well.