Opinion
CIVIL ACTION No: 98-4226-RDR, CIVIL ACTION No: 98-4227-RDR, CIVIL ACTION No: 00-4062-RDR, CIVIL ACTION No. 00-4186-RDR
September 27, 2001
MEMORANDRUM AND ORDER
Pending before the Court are the following motions: (1) Plaintiff Willard Epling's Motion to Compel Disclosure Responses to Plaintiffs Supplemental Interrogatories and Discovery and for Sanctions (Case No. 98-4226-RDR, doc. 205); (2) Plaintiff Paula Hladky's Motion to Compel Disclosure to Plaintiff Hladky's Supplemental Interrogatories and Discovery and for Sanctions (Case No. 98-4227-RDR, doc. 148); (3) Plaintiff Willard Epling's Motion to Compel Disclosure Responses to Plaintiffs Amended Interrogatories and Discovery and for Sanctions (Case No. 98-4226-RDR, doc. 208); and (4) Plaintiff Paula Hladky's Motion to Compel Disclosure to Plaintiff Hladky's Amended Interrogatories and Discovery and for Sanctions (Case No. 98-4227-RDR, doc. 151).
Also pending before the Court are the Cross-Motions for Sanctions filed by Defendant UCB Films, Inc. ("Defendant") (Case No. 98-4226-RDR, doc. 216, 218), to recover the costs and fees that Defendant has incurred in responding to the above Motions to Compel.
I. Factual and Procedural Background
These are four consolidated employment discrimination cases in which Plaintiffs claim they were denied employment at Defendant's Tecumseh, Kansas, plant on the basis of age. Plaintiffs assert claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Kansas Age Discrimination in Employment Act ("KADEA"), K.S.A. 44-1111, et seq. Plaintiffs also assert claims for retaliation under the ADEA and KADEA in two of the cases (Epling in Case No. 00-4186-RDR and Hladky in Case No. 00-4062-RDR). In addition, Plaintiff Hladky asserts claims for sex discrimination in Case No. 00-4062-RDR.
Plaintiffs applied for Coating Operator positions in Defendant's Coating Department in July 1997. Plaintiffs allege that they each had many years of experience performing the duties of a Coating Operator prior to applying for employment with Defendant. An employment agency acting on behalf of Defendant sent Plaintiffs letters informing them that Defendant had rejected their applications for employment and that others had been hired who had skills and experience that better matched the requirements of the position.
Epling and Hladky filed their initial lawsuits on December 18, 1998, in Case Nos. 98-4226-RDR and 98-4227-RDR, respectively. Those two cases were consolidated for purposes of discovery on June 28, 2000 (Case No. 98-4226-RDR, doc. 123). The instant Motions to Compel relate to amended and supplemental interrogatories that were served on Defendant in those two initial cases. The amended interrogatories were served on August 17, 2000, while the supplemental interrogatories were served on September 6, 2000. Since that time, all four cases have been consolidated.
Although Plaintiffs' Motions contain the word "Disclosure" in their captions, the Motions seek to compel answers to interrogatories and not disclosures.
II. Plaintiffs' Motions to Compel Answers to Amended Interrogatories (No. 98-4226-RDR, doc. 208; No. 98-4227-RDR, doc. 151)
A. Analysis
Each Plaintiff propounded a separate set of amended interrogatories to Defendant. Many of the interrogatories, along with Defendant's objections and answers thereto, are identical. The Court will therefore address both Motions together.
1. Epling Amended Interrogatory Nos. 1 and 8, and Hladky Amended Interrogatory No. 11
Defendant objects to these interrogatories on the basis that they were not propounded in Plaintiffs' First Sets of Interrogatories. The Court had previously examined each Plaintiffs First Set of Interrogatories and ruled that each set exceeded the maximum number of interrogatories allowed under Fed.R.Civ.P. 33 and the respective Scheduling Orders. See August 7, 2001 Memorandum and Order (doc. 127). The Court further ruled that Defendant was not required to answer the First Sets of Interrogatories as propounded. The Court, however, held that each Plaintiff could "select from the interrogatories already propounded not more than twenty-five interrogatories, including all discrete subparts, and propound them to Defendant." Doc. 127 at 27. Each Plaintiff subsequently propounded an amended set of interrogatories.
Defendant now objects to Epling Amended Interrogatory Nos. 1 and 8 and Hladky Amended Interrogatory No. 11 on the basis that they were not previously propounded in Plaintiffs First Sets of Interrogatories. Plaintiffs counter that the Court's August 7 Order did not specify that Plaintiffs were required to restate the initial interrogatories verbatim. Plaintiffs assert that the Court must have intended for Plaintiffs to be allowed to include in their amended interrogatories any subject matter that was contained in the initial interrogatories.
The Court disagrees with Plaintiffs' interpretation of its August 7 Order. That Order clearly instructed each Plaintiff "to select from the interrogatories already propounded" twenty five interrogatories to re-submit to Defendant. Doc. 127 at 27 (emphasis added). Plaintiffs were not given permission to create new interrogatories. Nor were they given permission to reword the interrogatories so long as they dealt with the same subject matter, as Plaintiffs claim.
The Court has reviewed each of the First Sets of Interrogatories (Ex. 1, attached to doc. 73, Case No. 98-4226-RDR; Ex. A, attached to doc. 69, Case No. 98-4227-RDR), and the Court does not find these Amended Interrogatories to be among them. Accordingly, the Court will uphold Defendant's objection, and will deny the Motion to Compel as to Epling Amended Interrogatory Nos. 1 and 8 and Hladky Amended Interrogatory No. 11.
2. Epling Amended Interrogatory No. 2 and Hladky Amended Interrogatory No. 1
These identical interrogatories ask Defendant to identify and describe all documents and information that Defendant considered to determine that the applicants hired for the Coating Operator position had skills and experience that more closely matched the needs of the position than Plaintiffs. These interrogatories also ask Defendant to identify the applicants hired by name, date of birth, and date of hire. Defendant responded by stating that it "considered among other things the information provided during each applicant's interview, information contained in the mini-resume Adecco [the employment agency] provided, if any, as well as the interviewer's previous experience with the applicant, if any." Defendant then referred Plaintiffs to the application documents for the name, date of birth, and date of hire information.
Plaintiffs assert that Defendant improperly referred Plaintiffs to a "a mass of business records" that were not sufficiently identified so as to comply with Fed.R.Civ.P. 33(d). Plaintiffs also assert that the application documents to which Defendant referred Plaintiffs do not include "the information provided during each applicant's interview" that Defendant considered in order to determine that the applicants hired had the skills and experience more closely matching the needs of the position than Plaintiffs.
Fed.R.Civ.P. 33(d) provides that where the answer to an interrogatory may be derived from the business records of the answering party, the party may "specify the records from which the answer may be derived." The "specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained." Id.
The Court finds that Defendant's specification was sufficiently detailed so as to meet its Rule 33(d) obligation. The fact that the application documents do not include all of the information provided during the interview process does not make Defendant's response inadequate. According to Defendant, there were "hundreds and hundreds of applicants" for the Coating Department. The Court agrees that Defendant cannot possibly recount the specific information each applicant provided in his/her interview that led Defendant to conclude that the applicant had the skills and experience for the job. The Court will therefore deny the Motion to Compel as to Epling Amended Interrogatory No. 2 and Hladky Amended Interrogatory No. 1.
3. Epling and Hladky Amended Interrogatory No. 4
After the filing of the Motions to Compel, Defendant provided the requested information regarding the cost of fringe benefits. The Motions to Compel will therefore be denied as moot as to interrogatories. The issue of sanctions will be addressed below in Part II.B.
4. Epling Amended Interrogatory No. 5 and Hladky Amended Interrogatory No. 6
These identical interrogatories ask Defendant to provide the following information:
Please state the skill and experience each applicant has to perform the coating operator job . . . that more closely matched the needs for the job(s) which Plaintiff did not have, identifying each such applicant by name, date of birth and date of hire, between June 30, 1997 through the present.a. Defendant's response to Epling Amended Interrogatory No. 5
In its supplemental response to Epling's Amended Interrogatory No. 5, Defendant stated that the individuals hired for the Coating Operator position had passed a math test, which Epling did not initially pass. Defendant's response then stated:
Once plaintiff passed the math test and was referred to [Defendant] for an interview, it determined that each of the individuals hired for the position of coating operator more closely matched the characteristics necessary for the position as identified by Jeanne Hippe in her deposition . . . and as reflected in Ms. Hippe's Human Resources Interview notes and in the Interview Appraisal Form contained in Morris Deposition Exhibit 49, than did plaintiff. Pursuant to Fed.R.Civ.P. 33(d), plaintiff is referred to the application documents of individuals hired for the position [and various other specified documents].
Epling asserts that Defendant's answer is insufficient because it does not identify the skills and experience of each applicant that Defendant found matched the needs of the Coating Operator job more closely than Epling's skills and experience. Epling states that the various application documents, Ms. Hippe's deposition testimony, and the cited documents merely identify each applicant's prior experience and do not state how the experience and skill of each of those applicants were more closely matched to the needs of the position than Epling's experience and skills.
Jeanne Hippe is Defendant's Director of Human Resources.
Defendant contends that it fully answered the interrogatory by (1) stating that Epling initially failed the required math test; (2) by specifying the particular pages of Ms. Hippe's deposition testimony "that fully and completely responded" to the interrogatory ( e.g., Hippe's testimony that during the interview, Epling appeared to have a poor attitude toward work and he provided terse and incomplete answers to the interview questions); and (3) by referring Epling to certain documents, i.e., Ms. Hippe's Human Resources Interview notes and the Interview Appraisal Form regarding Epling, along with the "application documents" containing each hired applicant's qualifications and experience.
Unfortunately, neither party has provided the Court with all of the cited pages of Ms. Hippe's deposition. Nor has any party provided the Court with any application documents for any of the individuals hired for the Coating Operator position. Without that information, the Court cannot determine whether Defendant's answer is completely responsive to the interrogatory.
Defendant has provided the Court with eight of the twenty-three cited pages of Ms. Hippe deposition testimony, while Plaintiff has provided none of the cited pages.
Epling bears the burden to show valid grounds for his Motion to Compel. The Court does not find that he has satisfied that burden. Accordingly, the Court will deny the Motion to Compel as to Epling Amended Interrogatory No. 5.
b. Defendant's response to Hladky Amended Interrogatory No. 6
In its response to Hladky's Amended Interrogatory No. 6, Defendant stated: "[E]ach of the individuals hired for the position of coating operator possessed stronger leadership, interpersonal and/or communication skills, flexibility, and/or a willingness to work with others than plaintiff. These skills permeated every aspect of the job." Defendant then referred Hladky to the application documents and packets of those hired for the Coating Operator position.
Hladky and Defendant make arguments similar to those made above with respect to Epling Amended Interrogatory No. 5. The Court does not have before it any application documents or packets of those hired for the Coating Operator position that would permit it to determine whether Defendant's answer is fully responsive. The Court therefore holds that Hladky has failed to meet her burden to support her Motion to Compel. The Court will deny the Motion as to Hladky Amended Interrogatory No. 6.
5. Epling Amended Interrogatory No. 10 and Hladky Amended Interrogatory No. 12
These identical interrogatories ask Defendant to "identify . . . the individual(s) who contributed the information, oral or written, in response to these interrogatories and the number of the corresponding interrogatory for which the individual(s) provided such information." In response, Defendant listed various individuals, and stated that "[a]ll individuals contributed at one time or another to the information provided in response to all of these interrogatories."
Plaintiffs contend that the answer is incomplete because it does not identify "each person who provided the information for each interrogatory." The Court finds Plaintiffs' contention to be without merit. Defendant clearly states that all of the listed individuals provided some information "in response to all of these interrogatories." (Emphasis added.) It is clear to the Court that Defendant's response means each individual identified provided some information as to each of the interrogatories. The Court will deny the Motions to Compel as to these interrogatories.
6. Hladky Amended Interrogatory No. 5
This interrogatory asks Defendant to identify all factors considered in evaluating Hladky and each applicant for a Coating Department job. Hladky objected to Defendant's response on the basis that Defendant did not identify "all factors" considered. Defendant instead used the term "not necessarily limited to" and stated that "some of the factors on the candidate appraisal form" were used in evaluating the applicants. Defendant has since sent a letter to Hladky's counsel indicating that it has determined that no factors, other than those specifically cited in its response, were considered.
Hladky apparently finds this answer to be responsive and complete, but asserts that a letter signed by Defendant's counsel is not the equivalent of a verified interrogatory answer. The Court agrees and will order Defendant to provide a verified supplemental answer to this interrogatory. The Motion to Compel will be denied in all other respects as to this interrogatory.
7. Hladky Amended Interrogatory Nos. 9 and 10
The Court finds that Defendant's answers to these amended interrogatories, when read in conjunction with Defendant's Supplemental Privilege Log, are proper and sufficient to support Defendant's assertions of privilege. The Court will deny the Motion to Compel as to these two interrogatories.
B. Plaintiffs' Requests for Sanctions
Plaintiffs seek to recover the attorney fees and expenses they have incurred in connection with these two Motions to Compel. Their request is based on (1) Defendant's failure to provide complete responses to the Amended Interrogatories; and (2) Defendant's service of certain supplemental answers after the Motions to Compel were filed. Plaintiffs also seek to recover the expert witness fees they claim to have incurred when their expert economist recalculated Plaintiffs' damages. Plaintiffs claim that their economist was forced to recalculate their damages because Defendant provided new benefit information in its supplemental responses to Amended Interrogatory No. 4 after the Motions to Compel were filed.
Rule 37(a)(4)(A) provides that when a motion to compel is granted in its entirety or when the requested discovery is provided after the motion to compel is filed, the court "shall, after affording an opportunity to be heard, require the party whose conduct necessitated the motion or the party or attorney advising such conduct or both of them" to pay the reasonable expenses and attorney fees incurred in making the motion, unless the court finds that the opposing party's conduct was "substantially justified, or that other circumstances make an award of expenses unjust."
The Court does not find the imposition of sanctions under Rule 37(a)(4)(A) to be appropriate here. Defendant has explained why it did not provide some of the requested information until after the Motions to Compel were filed. The Court finds that substantial justification has been provided for those supplemental responses, and, thus, holds that sanctions are not warranted under Rule 37(a)(4)(A) for providing answers after the Motions to Compel were filed. In addition, the Court finds no legal basis to require Defendant to pay Plaintiffs' claimed additional expert witness fees for the recalculation of Plaintiffs' damages. No provision in Rule 37(a)(4) allows for the recovery of expert witness fees.
Sanctions are not otherwise warranted under Rule 37(a)(4)(A) because the Court is not granting either Motion to Compel in its entirety. In fact, the Court is denying in its entirety Epling's Motion to Compel Answers to Amended Interrogatories. Because, however, the Court is granting a very small portion of Hladky's Motion to Compel Answers to Amended Interrogatories, i.e., that part of the Motion which seeks to compel Defendant to verify its supplemental response to Hladky Interrogatory No. 5, Rule 37(a)(4)(C) comes into play.
Rule 37(a)(4)(C) provides that when a motion to compel is granted in part and denied in part, the court may, after affording the parties an opportunity to be heard, "apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner." Here, the Court does not find it just to award sanctions to Hladky merely because Defendant failed to verify a supplemental interrogatory answer.
In sum, Plaintiffs' requests for sanctions incurred in connection with these Motions to Compel will be denied.
III. Plaintiff Epling's Motion to Compel Answers to Supplemental Interrogatories and for Sanctions (No. 98-4226-RDR, doc. 205)
1. Epling Supplemental Interrogatory No. 1
A. Analysis
After Plaintiffs filed these Motions to Compel, Defendant provided the requested information regarding certain job applicants. The Motion to Compel will therefore be denied as moot as to this interrogatory. The issue of sanctions will be addressed below in the Court's discussion of sanctions. See Part III.B.
2. Epling Supplemental Interrogatory No. 7
This interrogatory asks Defendant to state each reason why Epling was not hired and "to identify and describe" all documents that support those reasons. Defendant responded by stating that Epling was not hired initially because he did not pass the math test, which was a prerequisite to being interviewed for the position. Defendant further stated that Epling eventually passed the test, at which time he was interviewed. Defendant then referred Epling to certain specified pages of Jeanne Hippe's deposition "for the reasons why Willard Epling was not hired after his interview." Defendant also referred Epling to three specific documents: Morris Deposition Exhibit 49, Jeanne Hippe's Candidate Appraisal form, and a "Human Resources Interview" form relating to Epling, "for additional documents which support defendant's reasons for declining to hire plaintiff."
Epling contends that this response is insufficient for two reasons. The first reason Epling articulates is incomprehensible. He states: "Defendant's response to Plaintiff Epling's amended interrogatory number 5 refers to the application documents of individuals hired for the position of coating operator during the time period of July 1997 through the present, including the individuals whose application for employment and offer letter or new hire date form, is not fully responsive to Plaintiffs request." Doc. 205 at 13. To the extent Epling is attempting to argue that Defendant's reference to the specified documents is non-responsive, the Court disagrees. Epling specifically asked Defendant to "identify and describe all documents" that support the reasons why Defendant did not hire Epling. In response, Defendant identified those documents for Epling.
The second reason Epling articulates is that Defendant may not satisfy its burden under Fed.R.Civ.P. 33 by providing "information through a deposition." The Court also disagrees with this argument. Based on what information the Court has before it, the Court finds Defendant's reference to the deposition testimony to be responsive and proper. It is true that a party may not properly answer an interrogatory "by referring generically" to deposition testimony. Starlight Inter 7, Inc., v. Herlihy, 186 F.R.D. 626, 640 (D. Kan. 1999). A party may, however, respond to an interrogatory with deposition testimony, where that testimony is responsive and where the specific pages or portions of the transcript are provided. See Hilt v. SFC, Inc., 170 F.R.D. 182, 185-86 (D. Kan. 1997) (interrogatory answer sufficient where plaintiff incorporated deposition testimony into interrogatory answer and where movant did not dispute that plaintiff had testified at length about the subject inquired about in the interrogatory). Here, Epling does not dispute that the cited deposition testimony explains Defendant's reasons for not hiring Epling. Furthermore, Epling provides no reason why Defendant should be required to repeat in its interrogatory answer the deposition testimony provided by Defendant's Human Resources Director as to reasons he was not hired. See id ("Defendant has provided no persuasive reason . . . to require plaintiff merely to repeat by written answers [to interrogatories] her testimony at deposition."
As noted above, the Court has before it only eight out of the twenty-three pages of cited Hippe testimony. Those eight pages address the reasons why Epling was not hired.
In light of the above, the Court finds Defendant's answer to be proper, and the Court will deny the Motion to Compel as to this interrogatory.
3. Epling Supplemental Interrogatory No. 8
After Epling filed the instant Motion to Compel, Defendant served a second supplemental response to this interrogatory, which Epling appears to concede provides the requested information. Epling complains, however, that the second supplemental answer is unverified, and asks that sanctions be granted because the information was not provided until after the Motion to Compel was filed. The Court will deny the Motion to Compel as moot as to this interrogatory, but will order Defendant to verify its second supplemental answer. The Court will address the issue of sanctions below in Part III.B.
4. Epling Supplemental Interrogatory No. 11
This interrogatory requests the following:
State whether Defendant is provided the hourly cost of each benefit from any source. If so, identify by name and location the source of such information and when such information is provided.
Defendant responded that "it is not provided an `hourly cost of each benefit' from any source." Defendant later served a supplemental response to another interrogatory — Epling Amended Interrogatory No. 4 — providing information about the cost of benefits "per employee on an annual basis." Epling argues that this supplemental response demonstrates that Defendant possesses the information necessary to respond to Amended Interrogatory No. 11. Epling also argues that Defendant must have had this information at the time it initially responded to Amended Interrogatory No. 11 because, prior to Defendant responding to the interrogatory, Jeanne Hippe had testified in her deposition that she had received a written document containing "the total cost [of benefits] to the company."
Epling's arguments are totally without merit. Epling Supplemental Interrogatory No. 11 asks whether Defendant is provided the "hourly cost" of each benefit. Ms. Hippe never testified that she had received any document containing the "hourly cost" of benefits — she testified only that the she had received a document containing the "total cost to the company." Furthermore, Defendant's supplemental response to Epling Amended Interrogatory No. 4 did not discuss the "hourly cost" of benefits. It merely discussed the cost of an employee's benefits on an "annual basis." The Motion to Compel will therefore be denied as to Epling Supplemental Interrogatory No. 11.
B. Epling's Request for Sanctions
Epling seeks sanctions pursuant to Fed.R.Civ.P. 37(a)(4)(A). To the extent Epling seeks to recover sanctions based on Defendant serving supplemental responses after the Motion to Compel was filed, the Court will deny the request. Defendant has explained why it did not provide some of the requested information in response to Supplemental Interrogatory No. 1 until after the Motion to Compel was filed. The Court finds that Defendant's supplementation was substantially justified, and, thus, finds it inappropriate to enter sanctions based on that supplementation. Further, the Court finds sanctions are unjustified with respect to Interrogatory No. 8 because the supplementation was minor.
To the extent Epling is requesting sanctions under Fed.R.Civ.P. 37(a)(4)(A) because he anticipated prevailing on the merits of his Motion to Compel, the Court will also deny the request. The Court is denying the Motion to Compel on every issue except one, and is merely ordering Defendant to verify its second supplemental answer to Epling Supplemental Interrogatory No. 8. The Court will also decline to enter sanctions under Fed.R.Civ.P. 37(a)(4)(C), because it would not be just to award sanctions merely because Defendant failed to verify a supplemental interrogatory answer.
In sum, the Court will deny Epling's request for sanctions.
IV. Plaintiff Hladky's Motion to Compel Answers to Supplemental Interrogatories and for Sanctions (Case No. 98-4227-RDR, doc. 148)
1. Hladky Supplemental Interrogatory No. 2
A. Analysis
This interrogatory asks Defendant to provide certain information about "Joe Eubanks." Defendant responded by stating that it did not know of any such individual. Hladky now states that her interrogatory meant to request information regarding a "Joe Wilbanks," and she asks the Court to compel Defendant to provide that information.
The Court will deny the Motion to Compel as to this interrogatory. Defendant correctly responded that it did not know of any such individual. While the Court generally expects counsel to work together to informally resolve these types of issues, the Court will not impose on Defendant a duty to correct a mistake in Plaintiffs interrogatory.
2. Hladky Supplemental Interrogatory No. 5
This interrogatory asks Defendant to identify the individuals "responsible for making final hiring decisions" at Defendant's Tecumseh plant during the time period August 1997 to present. It also asks Defendant to state whether "Joe Eubanks" was consulted prior to or during hiring decisions for Coating Department positions. Defendant responded that it did not know of or employ a "Joe Eubanks." It then incorporated its answer to Hladky Amended Interrogatory No. 8, which asked Defendant to identify the individuals "responsible for interviewing and/or the decision to hire each applicant" who applied for jobs in the Coating Department, for the time period August 1997 to present.
Hladky states, again, that her interrogatory meant to refer to "Joe Wilbanks." She contends that "the evidence establishes that Mr. Wilbanks was involved in discussions during which the decision was made not to hire Hladky." She also argues that Defendant's incorporation of its answer to Amended Interrogatory No. 8 is not responsive. She complains that in response to Amended Interrogatory No 8, Defendant merely identified those individuals who "interviewed" the Coating Operator applicants and failed to identify those individuals who were "responsible for making the final hiring decisions." She thus asks the Court to compel Defendant to identify the person(s) responsible for making the final hiring decisions and to provide the requested information as to Joe Wilbanks.
The Court will deny the Motion to Compel as to this interrogatory. Hladky has mischaracterized Defendant's answer to Hladky Amended Interrogatory No. 8. Defendant's answer identified not only those who interviewed the Coating Department applicants, but also those who "made hiring decisions for the Coating Department" and those who "currently make hiring decisions for the Coating Department." Defendant specifically stated that "John Welch made hiring decisions for the coating department during the time period July — December 1997; Tim Kearney made hiring decisions during the time period January 1998 — May 1998; Michelle Probasso made hiring decisions during the time period July 1998 — August 2000; Larry Miller currently makes hiring decisions for the Coating Department." No other individuals were identified as making any hiring decisions for the Coating Department. Because only one person was identified as the decision-maker for each specified time period, that person must have also been the "final" decision-maker for that time period. The Court thus finds that the information incorporated by reference into the answer is fully responsive.
In addition, the Court finds that Defendant correctly responded to that part of the interrogatory requesting information about "Joe Eubanks." The Court will therefore deny the Motion to Compel as to Hladky Supplemental Interrogatory No. 5.
B. Hladky's Request for Sanctions
Hladky seeks to recover sanctions under Fed.R.Civ.P.37(a)(4)(A). The Court is denying Hladky's Motion to Compel in its entirety. Moreover, the record before the Court does not reveal that Defendant provided any supplemental responses to the interrogatories at issue after Hladky's Motion to Compel was filed. Thus, there is no basis upon which the Court can even entertain a request for sanctions. The Court will therefore deny Hladky's request for sanctions.
V. Defendant's Cross-Motions for Sanctions (Case No. 98-4226-RDR, doc. 216, 218)
Defendant seeks to recover the costs and fees that it has incurred in responding to each of Plaintiffs' four Motions to Compel.
A. Defendant's Cross-Motion for Sanctions Against Epling Based on Epling's Motion to Compel Answers to Amended Interrogatories (Case No. 98-4226, doc. 218)
The Court denied Epling's Motion to Compel (doc. 208) in its entirety. In such a circumstance, Fed.R.Civ.P. 37(a)(4)(B) provides for sanctions. It states as follows:
If the motion is denied, the court . . . shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party . . . the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
The Court does not find that Epling's Motion to Compel was substantially justified or that any circumstances would make an award of expenses unjust here. The Court will allow Defendant to recover the expenses and attorney fees it has incurred in responding to this Motion to Compel.
To aid the Court is determining the proper amount of sanctions, Defendant's counsel shall file, on or before October 15, 2001 , an affidavit itemizing the expenses, including attorney fees, that Defendant incurred in responding to Epling's Motion to Compel. Epling shall have until October 29, 2001 to file a response to the affidavit. Defendant shall have until November 12, 2001 to file a reply brief, if it so chooses. After reviewing the briefs, the Court will issue an order specifying the amount and time of payment.
The Court recognizes that before Rule 37(a)(4) sanctions may be imposed, it must afford the parties an "opportunity to be heard." See id. The Advisory Committee Notes to the 1993 Amendments to Fed.R.Civ.P. 37(a)(4) make it clear that the Court may consider the issue of sanctions "on written submissions." Here, Defendant specifically moved for sanctions in its response to Epling's Motion to Compel, and Epling filed a reply brief. The Court therefore finds that the parties have had sufficient "opportunity to be heard" within the meaning of Fed.R.Civ.P. 37.
Having determined that Defendant is entitled to recover its reasonable expenses and fees, the Court must next determine whether it is Epling's counsel or Epling himself who should pay the sanctions. To the extent possible, sanctions should be imposed only upon the person or entity responsible for the sanctionable conduct. White v. General Motors Corp. Inc., 908 F.2d 675, 685-86 (10th Cir. 1990) (imposing Rule 11 sanctions); McCoo v. Denny's, Inc., 192 F.R.D. 675, 697 (D. Kan. 2000) (imposing Rule 11, 26(g)(3), and 37(a)(4) sanctions); Starlight Int'l, Inc. v. Herlihy, 190 F.R.D. 587, 593 (D. Kan. 1999) (imposing Rule 26(g) and 37(b) and (d) sanctions). The sanctioning of a party, as opposed to the party's counsel, "requires specific findings that the party was aware of the wrongdoing. McCoo, 192 F.R.D. at 697 (citing White, 908 F.2d at 685-86).
In the absence of any evidence that Epling himself was responsible for the Motion to Compel or the arguments made therein, the Court finds it appropriate to hold Epling's counsel solely responsible for paying the monetary sanctions.
Pursuant to Kansas Rule of Professional Conduct 5.1 and the comment thereto, the partners or shareholders in a law firm are responsible for making reasonable efforts to assure that all lawyers in the firm conform to the rules of professional conduct. The Court therefore holds that the law firm representing Epling rather than the individual attorneys shall be responsible for payment of the expenses.
B. Defendant's Cross-Motion for Sanctions Against Hladky Based on Hladky's Motion to Compel Answers to Amended Interrogatories (Case No. 98-4226-RDR, doc. 218)
The Court denied all relief requested in this Motion to Compel (doc. 151) except for requiring Defendant to verify its supplemental response to Hladky Amended Interrogatory No. 5. As noted above, when a motion to compel is granted in part and denied in part, the Court may, after affording the parties an opportunity to be heard, "apportion the reasonable expenses incurred in relation to the motion among and parties and persons in a just manner." Fed.R.Civ.P. 37(a)(4)(C). Because the Court is granting only a very minor part of Hladky's Motion, the Court deems it appropriate to award Defendant some, if not all, of the fees and expenses it has incurred in responding to this Motion to Compel. Such sanctions shall be entered against the law firm of Plaintiffs counsel.
The parties shall follow the same briefing schedule set forth above in Part A, and after the Court has reviewed the briefs, the Court will issue an order specifying the amount and time of payment.
C. Defendant's Cross-Motion for Sanctions Against Epling Based on Epling's Motion to Compel Answers to Supplemental Interrogatories (Case No. 98-4226-RDR, doc. 216)
The only relief the Court has granted with respect to this Motion to Compel (doc. 205) is to require Defendant to verify its second supplemental answer to Epling Supplemental Interrogatory No. 8. The Court makes the same ruling here as it makes above in Part B with respect to Defendant's Cross-Motion for Sanctions against Hladky. The parties shall follow the same briefing schedule set forth above, and the Court will issue an order specifying the amount and time of payment after it has reviewed the parties' briefs.
D. Defendant's Cross-Motion for Sanctions Against Hladky Based on Hladky's Motion to Compel Answers to Supplemental Interrogatories (Case No. 98-4226-RDR, doc. 216)
The Court has denied this Motion to Compel (doc. 148) in its entirety. The Court makes the same ruling here as it makes with respect to Defendant's Cross-Motion for Sanctions against Epling, as set forth in Part A. The parties shall follow the same briefing schedule set forth above.
IT IS THEREFORE ORDERED that Plaintiff Willard Epling's Motion to Compel Disclosure Responses to Plaintiffs Supplemental Interrogatories and Discovery and for Sanctions (Case No. 98-4226-RDR, doc. 205) is denied in all respects except that Defendant UCB Films, Inc., f/k/a UCB Cello, Inc., shall serve on Plaintiff Epling a verified second supplemental answer to Epling Supplemental Interrogatory No. 8, on or before October 15, 2001
IT IS FURTHER ORDERED that Plaintiff Paula Hladky's Motion to Compel Disclosure to Plaintiff Hladky's Supplemental Interrogatories and Discovery and for Sanctions (Case No. 98-4227-RDR, doc. 148) is denied in all respects.
IT IS FURTHER ORDERED that Plaintiff Willard Epling's Motion to Compel Disclosure Responses to Plaintiffs Amended Interrogatories and Discovery and for Sanctions (Case No. 98-4226-RDR, doc. 208) is denied in all respects.
IT IS FURTHER ORDERED Plaintiff Paula Hladky's Motion to Compel Disclosure to Plaintiff Hladky's Amended Interrogatories and Discovery and for Sanctions (Case No. 98-4227-RDR, doc. 151) is denied in all respects except that Defendant UCB Films, Inc., f/k/a UCB Cello, Inc., shall serve on Plaintiff Hladky a verified supplemental answer to Hladky Amended Interrogatory No. 5, on or before October 15, 2001.
IT IS FURTHER ORDERED that the Cross-Motion filed by Defendant UCB Films, Inc., f/k/a UCB Cello, Inc., in Case No. 98-4226 (doc. 218) to recover sanctions against Plaintiff Epling based on Epling's Motion to Compel Answers to Amended Interrogatories is granted. Defendant's counsel shall file, on or before October 15, 2001 , an affidavit itemizing the expenses, including attorney fees, that Defendant incurred in responding to said Motion to Compel. Epling shall have until October 29 , 2001 to file a response to the affidavit. Defendant shall have until November 12, 2001 to file a reply brief, if it so chooses.
IT IS FURTHER ORDERED that the Cross-Motion filed by Defendant UCB Films, Inc., f/k/a UCB Cello, Inc., in Case No. 98-4226-RDR (doc. 218) based on Hladky's Motion to Compel Answers to Amended Interrogatories is granted. Defendant's counsel shall file, on or before October 15, 2001 , an affidavit itemizing the expenses, including attorney fees, that Defendant incurred in responding to said Motion to Compel. Hladky shall have until October 29. 2001 to file a response to the affidavit. Defendant shall have until November 12, 2001 to file a reply brief, if it so chooses.
IT IS FURTHER ORDERED that the Cross-Motion filed by Defendant UCB Films, Inc., f/k/a UCB Cello, Inc., in Case No. 98-4226-RDR (doc. 216) against Epling based on Epling's Motion to Compel Answers to Supplemental Interrogatories is granted. Defendant's counsel shall file, on or before October 15, 2001 , an affidavit itemizing the expenses, including attorney fees, that Defendant incurred in responding to said Motion to Compel. Epling shall have until October 29, 2001 to file a response to the affidavit. Defendant shall have until November 12. 2001 to file a reply brief, if it so chooses.
IT IS FURTHER ORDERED that the Cross-Motion filed by Defendant UCB Films, Inc., f/k/a UCB Cello, Inc., in Case No. 98-4226-RDR (doc. 216) against Hladky based on Hladky's Motion to Compel Answers to Supplemental Interrogatories is granted. Defendant's counsel shall file, on or before October 15, 2001 , an affidavit itemizing the expenses, including attorney fees, that Defendant incurred in responding to said Motion to Compel. Hladky shall have until October 29, 2001 to file a response to the affidavit. Defendant shall have until November 12, 2001 to file a reply brief, if it so chooses.
IT SO ORDERED.