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granting defendant's motion to compel plaintiffs' answers to interrogatories because defendant was "entitled to understand, before his deposition, the factual basis for the claim against him"
Summary of this case from Ryan v. GiffordOpinion
Civil Action No. 15452-NC
October 30, 2003.
Joseph A. Rosenthal, Rosenthal, Monhait, Gross Goddess, P.A. Wilmington, DE 19801
R. Franklin Balotti Richards, Layton Finger, Wilmington, DE 19899
Robert K. Payson, Potter Anderson Corroon LLP, Wilmington, DE 19899
Joel Friedlander, Bouchard Margules Friedlander, Wilmington, DE 19801
David C. McBride, Young Conaway Stargatt Taylor, LLP, Wilmington, DE 19899-0391
A. Gilchrist Sparks, III, Morris, Nichols, Arsht Tunnell, Wilmington, DE 19899
Dear Counsel:
This letter addresses Michael Ovitz's motion to compel plaintiffs' answers to certain interrogatories before discovery is completed. For the reasons set forth below, I grant the motion.
On August 26, 2003, Ovitz served the plaintiffs with eleven interrogatories. The first nine interrogatories are "contention" interrogatories. The tenth interrogatory requests information related to plaintiffs' damages calculations. The eleventh interrogatory requests the number of shares owned by the named plaintiffs. Plaintiffs answered the eleventh interrogatory, but declined to answer the other interrogatories because they asserted that they were premature. On October 17, 2003, Ovitz filed the instant motion to compel. In his motion, Ovitz seeks the plaintiffs' response to the unanswered interrogatories before Ovitz's deposition currently set for November 17 and 18, 2003. Plaintiffs seek to defer the answers to the interrogatories until discovery is scheduled to close, by prior Order of this Court, on November 30, 2003.
My resolution of this issue is governed by Court of Chancery Rule 33(c) and this Court's decision in Levine v. First Western Financial Corp. Rule 33(c) states:
1994 Del. Ch. LEXIS 206 (Del.Ch. Dec. 16, 1994) (Chandler, V.C.).
An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the Court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.
The decision to allow plaintiffs to defer answering the contention interrogatories is within my discretion. In Levine, "I decline[d] to permit plaintiff to defer answering defendants' interrogatories concerning the factual basis of his allegations until after plaintiff [had] conducted discovery." I ordered the plaintiff to "answer defendants' interrogatories with the information that is currently available" or "acknowledge that he lacks sufficient information to respond to the question."
Mann v. Oppenheimer, 517 A.2d 1056, 1061 (Del. 1986).
1994 Del. Ch. LEXIS 206, at *6.
Id. at *6-*7.
In this case, it is my opinion that Ovitz should have plaintiffs' answers to the first nine interrogatories before he is deposed on November 17 and 18. Ovitz is entitled to understand, before his deposition, the factual basis for the claim against him. Plaintiffs have already completed substantial discovery and should have a sufficient basis to answer these interrogatories expeditiously. (Of course, plaintiffs are only required to answer the interrogatories based on the information currently available to them.) Plaintiffs have expressed the concern that responding to the interrogatories would sidetrack them from preparing for several depositions scheduled in the coming weeks. But this concern is unavailing as the interrogatories were filed on August 26 and any time pressure caused by this Court's decision is due to plaintiffs' own machinations.
As Ovitz withdrew his motion to compel an answer to the tenth interrogatory (relating to plaintiffs' damages calculations) because of the plaintiffs' representation that the information sought will be provided in the report of plaintiffs' damage expert, my ruling is limited to the first nine interrogatories. I have entered an Order consistent with this decision.