Opinion
CV 101-003
December 4, 2002
ORDER
The above-styled civil action was removed to this Court from the Superior Court of Richmond County. The matter is now before the Court on Plaintiffs' motion for further relief and Defendant's cross motion for fees and costs. (Doc. nos. 186, 188). Having reviewed the record and the relevant law, for the reasons set forth below, Plaintiffs' motion for further relief is GRANTED in PART and DENIED in PART and Defendant's cross-motion for fees and costs is DENIED.
I. BACKGROUND
This case was removed to this Court on January 9, 2001, and has now been before this Court for almost two years. The discovery period in this action closed for the final time on May 3, 2002. (See doc. no. 134). On June 3, 2002, the Honorable William T. Moore, Jr., District Judge. United States District Court for the Southern District of Georgia, stayed all proceedings in this case. (Doc. no. 176). At that time Judge Moore also noted that "[t]he filings in this case have been unusually high in number and alarmingly questionable in value" and barred the parties from filing anything further in this case without specific direction from the Court. (Id., pp. 2-3). On August 12, 2002, this Court granted in part and denied in part Defendant's motion to strike and, in pertinent part, directed Defendant to respond to two interrogatories and two requests for production of documents propounded by Plaintiffs. (Doc. no. 182). On August 19, 2002, Judge Moore lifted the stay of proceeding in this case and directed the parties to "rededicate themselves to acting in good faith to resolve any disputes that arise between them without needlessly demanding the time or attention of the Court." (Doc. no. 185, pp. 1-2).The matters presently before the Court reveal that Judge Moore's admonitions have had little effect on the parties. On September 30, 2002. Plaintiffs filed their motion for further relief. (Doc. no. 186). In the motion and accompanying memorandum. Plaintiffs assert that Defendant did not respond to the two interrogatories and two requests for production of documents as directed by the Court until September 27, 2002, over six weeks after the Court directed Defendant to respond and one day after Plaintiffs' counsel wrote Defendant's counsel. Plaintiffs argue that the belated response by Defendant is insufficient for two reasons: (1) it does not include e-mails and letters referenced in a document recently produced by Defendant (the "referenced documents"); and (2) it does not include the documents previously found by the Court to be privileged (the "privileged documents"). Plaintiffs further contend that Defendant should be sanctioned pursuant to Fed.R.Civ.P. 37 for failing to comply with the Court's August 12, 2002 Order in a timely manner but "submit the issue of sanctions to the Court's sound discretion." (Id., p. 2).
Plaintiffs claim that Defendant's untimely response to the discovery requests waived all objections to those requests, even those based upon privilege.
On October 11, 2002. Defendant filed its response to Plaintiffs' motion for further relief. (Doc. nos. 188-189). In its response, Defendant states that Plaintiffs' counsel failed to make a good faith effort to resolve the discovery dispute prior to filing the motion for further relief. Defendant maintains that Plaintiffs were required to make a good faith effort to resolve the dispute prior to filing the motion for further relief by both Fed.R.Civ.P. 37(a)(2)(B) and Judge Moore's August 19, 2002 Order. Defendant additionally contends that the referenced documents "do not exist[.]" (Doc. no. 189. p. 4). Defendant further argues that it did not waive its attorney client privilege and attorney work product claims concerning the privileged documents because: (1) the documents were already subject to a valid claim of privilege; (2) its responses to Plaintiffs' discovery requests were timely; and (3) waiver of privilege is too severe a sanction for making untimely discovery responses. Finally, Defendant requests that it be awarded fees and costs for being forced to respond to the motion for further relief.
Instead of simply requesting fees and costs in their response to the motion for further relief, Defendant makes the request in the form of a cross motion for fees and costs in a transparent attempt to circumvent the Court's prohibition on the filing of sur-reply briefs. (Doc. no. 188). By filing across motion for fees and costs that is based solely on the alleged insufficiency of Plaintiffs' motion for further relief. Defendant transformed Plaintiffs' reply brief into a response to its cross motion. This allowed Defendant to then file a reply brief in support of its motion for fees and costs and was simple jockeying "to have the last word." See McShares, Inc. v. Barry, 979 F. Supp. 1338, 1341 (D. Kan. 1997). The Court is not amused. Accordingly, the Court will consider Defendant's cross motion as part of its response to Plaintiffs' motion for further relief and will not consider Defendant's reply brief (doc. no. 211) in any way favorable to Defendant.
On October 21, 2002, Plaintiffs filed their reply brief in support of the motion for further relief. (Doc. no. 196). In the reply brief, Plaintiffs argue that the motion for further relief is a motion for sanctions for failure to obey the Court's August 12, 2002 Order and that the Federal Rules of Civil Procedure do not require parties to confer in good faith before filing such a motion for sanctions. Plaintiffs also note that while Defendant claims that the referenced documents do not exist, Defendant does not claim that the referenced documents are not responsive to Plaintiffs' discovery requests and does not explain what happened to the referenced documents. Plaintiffs conclude the reply brief by further arguing that Defendant waived its claims of privilege concerning the privileged documents by failing to make timely objections to Plaintiffs' discovery requests.
On November 4, 2002. Defendant filed a sur-reply brief in opposition to Plaintiffs' motion for further relief. (Doc. no. 211). In that brief, Defendant argues that the motion for further relief is actually a motion to compel and that Plaintiffs were required to confer in good faith prior to filing it. Defendant further contends that Judge Moore's August 19, 2002 Order required Plaintiffs to confer in good faith prior to filing the motion for further relief regardless of whether it was a motion to compel or a motion for sanctions. Additionally, Defendant states that it did not destroy any of the referenced documents and that all of the referenced documents have either been previously produced or do not exist. Finally, Defendant reiterates its arguments that it did not waive any claim of privilege by filing an untimely response to Plaintiffs' discovery requests and that it is entitled to fees and costs.
Defendant styles this brief as a reply brief in support of its cross motion for fees and costs. (See note 2. supra). While the Court will only consider this brief for limited purposes. its contents are summarized here for the sake of completeness.
II. DISCUSSION
A. Good Faith Conferral
As an affirmative defense to Plaintiffs' entire motion for further relief, Defendant contends that Plaintiffs were required to confer with it in good faith prior to filing the motion and failed to do so. Defendant maintains that the duty to confer in good faith prior to filing the motion for further relief stems from both Fed.R.Civ.P. 37(a)(2)(B) and the August 19, 2002 Order. Plaintiffs concede that they did not attempt to confer with Defendant in good faith prior to filing the motion for further relief but argue that they were not required to confer with Defendant prior to filing the motion by either Fed.R.Civ.P. 37(a)(2)(B) or the August 19, 2002 Order.
In pertinent part, Fed.R.Civ.P. 37(a)(2)(B) provides that a "motion [to compel] must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action." The failure to make a good faith effort to confer with an opposing party about a discovery dispute is sufficient grounds to deny a motion to compel. See Van Westrienen v. Americontinental Collection Corp., 189 F.R.D. 440, 441 (D. Or. 1999). However, "[a]t its discretion the court may waive strict compliance with the conference requirements. It will generally do so when the time for filing another motion to compel has passed and the respondent opposes the motion on its merits and offers no possibility of compromise." Pulsecard, Inc. v. Discover Card Services, Inc., 168 F.R.D. 295, 302 (D. Kan. 1996) (citations omitted). On the other hand, "there is no requirement that a party try to secure the discovery through negotiations before filing a motion for sanctions [pursuant to Fed.R.Civ.P.] 37(b). Clearly the prior issuance of a court order obviates the need to meet and confer as required under [ Fed.R.Civ.P.] 37(a)." Royal MacCabees Life Ins. Co. v. Malachinski, No. 96 C 3615, 2001 WL 290308 at *9 (N.D. Ill. Mar. 20, 2001) (citation omitted).
Upon review of the record, the Court finds that Plaintiffs' motion for further relief was a Fed.R.Civ.P. 37(b) motion concerning a failure to comply with an order and not a Fed.R.Civ.P. 37(a) motion to compel. In the August 12, 2002 Order, the Court directed that the relevant discovery "should be provided by Defendant." (Doc. no. 182, p. 5). In the motion for further relief, Plaintiffs allege that the discovery responses the Court directed Defendant to provide were insufficient. As the Court has already directed Defendant to provide the discovery at issue, the motion for further relief is a Fed.R.Civ.P. 37(b) motion concerning a failure to comply with an order. Defendant's argument that Plaintiffs' motion for further relief cannot be a Fed.R.Civ.P. 37(b) motion because the discovery at issue has not been the subject of a motion to compel misses the mark. Fed R. Civ. P. 37(b) is titled "Failure to Comply With Order." Fed.R.Civ.P. 37(b)(2) authorizes the Court to "make such orders . . . as are just" if "party . . . fails to obey an order to provide or permit discovery[.]" By its terms Fed.R.Civ.P. 37(b)(2) applies to all orders "to provide or permit discovery," not only orders on motions to compel. The August 12, 2002 Order was an order "to provide or permit discovery[.]" Accordingly, the motion for further relief was a Fed.R.Civ.P. 37(b) motion and Plaintiffs were not required to confer with Defendant in good faith prior to filing the motion by Fed.R.Civ.P. 37(a)(2)(B).
2. The August 19, 2002 Order
In pertinent part. the August 19, 2002 Order provided that "as the case proceeds. the parties shall rededicate themselves to acting in good faith to resolve any disputes that arise between them without needlessly demanding the time or attention of the Court." (Doc. no. 185, pp. 1-2). Defendant contends that this language required Plaintiffs to confer with Defendant in good faith prior to filing the motion for further relief independently of the mandates of Fed.R.Civ.P. 37(a)(2)(B). The language of the August 19, 2002 Order, however, does not support Defendant's contention. The use of the word "rededicate" implies that the Order is simply instructing the parties to follow pre-existing requirements. Furthermore, in the absence of specific language creating an enlarged duty to confer. the Court is not inclined to construe the August 19, 2002 Order as changing well established requirements set forth in the Federal Rules of Civil Procedure. Accordingly, the Court holds that the August 19, 2002 Order did not create a greater duty to confer in good faith than the duty set forth in Fed.R.Civ.P. 37(a)(2)(B). As the Court has determined that Plaintiffs were not required by Fed.R.Civ.P. 37(a)(2)(B) to confer with Defendant prior to filing the motion for further relief, Plaintiffs were not required by the August 19, 2002 Order to confer with Defendant in good faith prior to filing the motion for further relief. Thus, the Court will consider the merits of Plaintiffs' motion.
B. The Referenced Documents
Document AGL 02851. produced by Defendant during discovery and consisting of handwritten notes. states, in pertinent part, "TP found emails copies of letters from Margaret Lyons M. Gifford re: letters." (Doc. no. 187, Ex. I). In their motion for further relief. Plaintiffs request that Defendant be ordered to produce these referenced documents. In its initial response to the motion, Defendant maintains that no such documents exist. (Doc. no. 189. p. 2). In its sur-reply brief filed fifteen days later, however, Defendant gave a more detailed explanation, stating that:
The documents at issue were described in hand written notes that were drafted by Beth Dobbs nearly 6 years ago. The notes merely state: "TP found emails letters from Margaret Lyons M. Gifford re: letters." Defendant previously produced all letters and emails that were drafted or received by Lyons and Gifford, but none of these documents addressed the issue of the lifetime letters being sent out by mistake. Defendant did not destroy any documents and to the best of its knowledge. Towers Perrin did not destroy any documents.
(Doc. no. 211, p. 3 n. 3).
There can be no doubt that "[c]omplete and accurate responses to discovery are required for the proper functioning of our system of justice." Wagner v. Dryvit Systems, Inc., 208 F.R.D. 606, 609 (D. Neb. 2OO1) (citing Averbach v. Rival Mfg. Co., 879 F.2d 1196, 1201 (3d Cir. 1989)). Towards this end, "parties have a duty to provide true, explicit. responsive, complete and candid answers to discovery. Id., at 609-610 (citing Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613. 616 (5th Cir. 1977)). To facilitate forthright discovery, Fed.R.Civ.P. 26(g) sets forth the duties placed upon attorneys who produce discovery responses. Under this rule, "counsel must make `a reasonable effort to assure that the client has provided all the information and documents responsive to the discovery demand.'" Poole ex rel. Elliot v. Textron, Inc., 192 F.R.D. 494, 503 (D. Md. 2000) (quoting Advisory Committee Notes to 1983 Amendments to Fed.R.Civ.P. 26(g)). To satisfy Fed.R.Civ.P. 26(g), "[c]ounsel need not conduct an exhaustive investigation, but only one that is reasonable under the circumstances" Id. n. 11; see also Dixon v. Certainteed Corp., 164 F.R.D. 685, 691 (D. Kan. 1996).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
In the case at bar, it is clear that counsel for Defendant have failed to conduct a proper investigation into the existence and content of the referenced documents. The notes that reference these documents create the strong impression that the documents exist and are responsive to Plaintiffs' discovery requests. In its response to Plaintiffs' interrogatories and requests for production of documents, Defendant does not mention the referenced documents at all. In its response to the motion for further relief, Defendant only states that no such documents exist. This fails to evidence a reasonable investigation into the existence of the referenced documents. See Starlight Int'l. Inc. v. Herlihy, 186 F.R.D. 626, 642-643 (D. Kan. 1999). In its sur-reply brief, Defendant made the above-quoted statement, (see p. 8. supra), which gives more information, but is still insufficient.
In its latest statement regarding the referenced documents, Defendant states that the notes that reference the documents are almost six years old, that the indication in the notes that the e-mails and letters concerned "letters" was not a reference to the lifetime benefit letters, that any of the referenced documents that exist have already been produced, and that none of the referenced documents is responsive to the discovery requests in question. This explanation fails to evidence a reasonable investigation because it is vague and inaccurate. A cursory examination of the notes in question shows that they were written in February 1999, two years later than indicated by Defendant; the same page as the reference to the documents in question contains a note about events that are set to begin on "Monday 3-1-99" and the page of notes immediately following the page in question references actions that are supposed to occur on "Thurs. 2-25-99." (Doc. no. 187. Ex. I). Furthermore, while Defendant maintains that the referenced documents do not concern the lifetime benefit letters, Defendant does not explain what the reference to "letters" means if it does not mean the lifetime benefit letters. Additionally, although Defendant states that all of the referenced documents that do exist have already been produced, Defendant fails to identify a single document that it has produced as one of the referenced documents.
In the absence of any evidence to the contrary, the Court will assume that the erroneous dating of the notes in question in the sur-reply brief is a typographical error or other innocent mistake. The Court assumes that it need not remind counsel of the consequences of being less than candid with opposing counsel or the Court. See Malautea v. Suzuki Motor Corp., 148 F.R.D. 362 (S.D. Ga. 1991).
In sum, most of the statements Defendant has made about the referenced documents are vague and the one unequivocal statement made by Defendant is demonstrably erroneous. Thus. the Court finds that counsel for Defendant have failed to conduct a reasonable investigation as to whether the referenced documents exist and whether they are responsive to Plaintiffs' discovery requests. Accordingly, counsel for Defendant are ORDERED to conduct a thorough investigation into the existence and identity of the referenced documents within twenty (20) days of the date of this Order. See Poole, 192 F.R.D. at 503 n. 11 ("detailed, documented search" ordered by court due to "its loss of confidence in the good faith efforts of defendant"). Defense counsel's investigation should focus upon determining: (1) the identity of the referenced documents; and (2) the identity of the letters to which the referenced documents refer. At the conclusion of this investigation, counsel for Defendant are DIRECTED to submit the findings of their investigation to Plaintiffs' counsel.
C. The Privileged Documents
Plaintiffs additionally seek to compel Defendant to produce the documents that Defendant identified as responsive to Plaintiffs' discovery requests but failed to produce because the Court previously found them to be privileged. Plaintiffs argue that Defendant waived all privileges regarding these documents by failing to file their responses to Plaintiffs' discovery requests in a timely manner. Defendant, on the other hand, argues that even if its discovery responses were untimely. this does not waive its claims of privilege on these documents.
Defendant additionally argues that its responses to Plaintiffs' discovery requests were timely. The Court, however, has already determined that the discovery responses were untimely and Defendant offers no additional arguments in support of its contention. (See doc. no. 182). Furthermore, Defendant does not dispute Plaintiffs' allegation that it did not make its substantive responses to Plaintiffs' discovery requests until six (6) weeks after it was directed to do so in the August 12, 2002 Order. Accordingly. the Court again finds that Defendant's discovery responses were untimely.
"Parties seeking to assert a privilege or the work-product doctrine as a bar to discovery must present their objections in a timely and proper manner." Applied Systems. Inc. v. Northern Ins. Co. of N.Y., No. 97 C 1565, 1997 WL 639235 at *1 (ND. In. Oct. 7, 1997). A party's "failure to object to a discovery request in a timely fashion may constitute a waiver of the objection, including objections based on privilege." Id. at *2 (citing Marx v. Kelley. Hart Hallman. P.C., 929 F.2d 8, 12 (1st Cir. 1991)). However, the Federal Rules of Civil Procedure do not mandate waiver of objections not timely or properly made.'" Mike v. Dymon, Inc., CV 95-2405, 1996 WL 674007 at *9 (D. Kan. 1996) (quoting First Sav. Bank. F.S.B. v. First Bank Sys., Inc., 902 F. Supp. 1356, 1361 (D. Kan. 1995)). Additionally. Fed.R.Civ.P. 34, which concerns requests for productions of documents, unlike Fed.R.Civ.P. 33, which concerns interrogatories, "does not specify that a failure to respond within the time provided will result in a waiver of any objections." RDM Holdings, Inc. v. Equitex. Inc. (in re RDM Sports Group. Inc.), 277 B.R. 415, 424 (N.D. Ga. 2002); see also Scaturro v. Warren Sweat Mfg. Co., 160 F.R.D. 44, 46 (M.D. Pa. 1995).
Untimely objections to interrogatories requesting a party to identify documents does not waive claims of privilege that are asserted in response to requests for the production of those documents. Sperling v. City of Kennesaw Police Dep't, 202 F.R.D. 325, 327-328 (N.D. Ga. 2001). Accordingly, the issue in the instant case is whether Defendant's untimely responses to Plaintiffs' requests for the production of documents waived Defendant's claims of privilege.
While Fed.R.Civ.P. 34 does not specify that untimely responses waive objections, it is nevertheless clear that waiver of objections may be imposed as a sanction against a party for failing to file timely discovery responses. See Applied Systems. Inc., 1997 WL 639235 at *2; see also First Sav. Bank, 902 F. Supp. at 1360. However. "waiver of privilege is the most extreme sanction that a court can impose for failure to follow required procedure and courts should reserve it for cases of unjustifiable delay, inexcusable conduct, and bad faith in responding to discovery requests." In re RDM Sports Group, Inc., 277 B.R. at 424 (citations omitted); see also Applied Systems, Inc., 1997 WL 639225 at * 2. Courts have found the waiver of objections frequently when the objections are based upon relevance or an undue burden imposed by a discovery request but "have been more circumspect in finding a waiver of a privilege objection." First Sav. Bank, 902 F. Supp. at 1361 (citations omitted).
In the case at bar, it is clear that Defendant has not engaged in sufficiently serious conduct to justify the extreme sanction of waiver of privilege. All Plaintiffs have claimed is that Defendant filed an untimely response to their requests for production of documents. Defendant has now responded to the discovery requests and the documents in question were previously found to be privileged by the Court. (See doc. no. 181). Defendant long ago filed a proper privilege log concerning these documents. (See doc. no. 102). While Plaintiffs correctly note that a party can waive a privilege that has already been found by the Court through subsequent conduct see Pulsecard, Inc., 168 F.R.D. at 304. Plaintiffs have failed to show that Defendant's conduct in this case warrants such a sanction. All of the cases cited by Plaintiffs in which a court found that a previously established claim of privilege had been waived involved situations in which the party in question voluntarily revealed the content, in whole or in part. of the privileged communication. See, e.g., Avery Dennison Corp. v. UCB Films PLC, No. 95 C 6351, 1998 WL 703647 at *3.4 (N.D. Ill. Sept. 30, 1998). Thus, Defendant has not waived the previously found privilege on the documents in question. Accordingly, to the extent that Plaintiffs' motion for further relief seeks to compel the production of the privileged documents, the motion is DENIED.
D. Fees and Costs
Both Plaintiffs and Defendant seek an award of attorney's fees and costs for having to bring or respond to the motion for further relief. In pertinent part, Fed.R.Civ.P. 37(b)(2) provides:
In lieu of any [other sanctions] or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
In the case at bar, while Plaintiffs did prevail on a portion of their motion for further relief, the Court finds that the circumstances of this case make an award of expenses to either Plaintiffs or Defendant unjust. As an initial matter, the Court notes that the motion for further relief was comprised of two parts and Plaintiffs and Defendant each prevailed on one part of the motion. This favors letting the parties bear their own costs and attorney's fees in this matter. See Greater Rockford Energy Technology Corp. v. Shell Oil Co., 138 F.R.D. 530, 538 (C.D. Ill. 1991); Nalco Chemical Co. v. Hydro Technologies, Inc., 148 F.R.D. 608, 617 (E.D. Wis. 1993).
Additionally, the Court finds that it would be unjust to award costs and attorney's fees to either Plaintiffs or Defendant because of the poor behavior of both counsel for Plaintiffs and counsel for Defendant. Plaintiffs' counsel has contributed to the protraction of the present discovery dispute in multiple ways. As an initial matter, while he was not obliged to do so, see supra, Plaintiffs' counsel could have contacted counsel for Defendant and attempted to resolve this dispute before filing the motion for further relief. Additionally, Plaintiffs' argument that Defendant waived privilege is without merit and is not substantially justified. Similarly. counsel for Defendant unnecessarily protracted the present dispute. Counsel for Defendant failed to respond to Plaintiffs' discovery requests for six weeks after being ordered to do so. Counsel for Defendant further protracted this matter by requesting fees and costs relating to Plaintiffs' motion for further relief in a separate motion in an obvious attempt to circumvent the ban on filing sur-reply briefs. (See p. 4 n. 2, supra). Finally, the Court notes that both Plaintiffs' and Defendant's counsel protracted this dispute by lacing their filings with unsupported and wholly speculative attacks on the alleged conduct and motives of the opposing party or counsel. (See doc. no. 196, p. 3 (suggesting that Defendant has destroyed evidence relevant to this case); doc. no. 211, p. 2 n. 1 ("As they have done several times in the past, Plaintiffs filed this motion . . . in the apparent hope that they could distract Defendant's counsel (and perhaps the Court) from the merits, where Plaintiffs also have no case.")). As both Plaintiffs' counsel and Defendant's counsel have unnecessarily protracted the present discovery dispute. the interests of justice are best served by requiring the parties to bear their own fees and costs. See Board of Educ. of Evanston Township High Sch. Dist. No. 202, Cook Cty., Ill. v. Admiral Heating Ventilating, Inc., 104 F.R.D. 23, 37 (N.D. Ill. 1984). Accordingly, Defendant's cross motion for costs and fees is DENIED and Plaintiffs' request for attorney's fees and costs is DENIED.