Opinion
Civil Action No. 04-00769.
August 18, 2004
ORDER AND OPINION
I. Introduction
For the reasons set forth below, I will order Plaintiffs to answer defendant Travelers Life and Annuity Co. ("Travelers")'s Interrogatory Nos. 8 and 14 in part, as explained below, and Interrogatory Nos. 15 and 16 in full. Plaintiffs should also produce documents responsive to Document Requests 40, 44 and 57.
II. Factual and Procedural Background
Plaintiffs have alleged that Defendants committed a number of business torts in connection with what Plaintiffs claim was Defendants' coopting of Plaintiff's invention — a unique employee benefits program — and associated disparagement of Plaintiffs themselves, so that potential clients would obtain the program through Defendants, and not through Plaintiffs.
On June 30, 2004, Plaintiffs filed a motion seeking an extension of the discovery deadlines in this case. Travelers responded, and simultaneously filed a cross-motion to compel discovery responses. On August 6, 2004, the parties submitted a stipulated confidentiality agreement covering material to be produced in discovery, which I signed, and which was then filed.
Also on August 6, 2004, I held a telephonic conference on the pending motions. Following the conference I entered an Order extending the deadlines, and directing the parties to identify the discovery material which was still at issue after the filing of the confidentiality agreement. The parties have done so. Moreover, on August 10, 2004, Plaintiffs filed an Amended Complaint in which they dropped claims for libel and slander which were formerly a part of this action.
II. Legal Standards
The Federal Rules of Civil Procedure are liberal with respect to discovery, permitting the requesting party to obtain even inadmissible material, as long as it is relevant to the claim or defense of any party, unprivileged, and reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1).
Federal Rule 33 requires a party served with interrogatories to respond to each within 30 days after they were served. Rule 33(b)(1) and (3). The party serving the interrogatories may move under Rule 37(a) to compel an answer to an interrogatory to which the receiving party has objected or which it has otherwise failed to answer. Rule 33(b)(5).
Similarly, Federal Rule 34 requires that a party served with a document request either produce the requested documents or else state a specific objection for each item or category objected to. Here, again, if the party served fails to respond adequately to a document request, the serving party may file a motion to compel under Rule 37(a). Fed.R.Civ.P. 34(b), 37(a)(1)(B).
III. Discussion
A. Interrogatory No. 8
Describe in detail any basis for your contention that you have been subjected to public hatred, contempt, ridicule, causing you to suffer great humiliation, mental pain, mental suffering, anguish or damage to your reputation or character. For each instance in which you were publicly hated, contempted, ridiculed, suffered great humiliation, mental pain, mental suffering, anguish, or damage to your reputation or character, identify all individuals who thought less of you; identify any individual or other legal entity from whom you learned about the instance; describe in detail any counseling, advice, or medical treatment that you sought as a direct or indirect result of such instance; identify any individual from whom you sought counseling, advice, or medical treatment; and identify any documents that refer or relate to such instance.
Plaintiffs maintain that they need not answer this Interrogatory because it is no longer relevant now that the claims for libel and slander are no longer in the case. Travelers, however, maintains that the information requested is just as relevant to Plaintiffs claims for business defamation.
It is apparent that some of the material requested is still relevant, and some is not. Plaintiffs no longer need to disclose information on "humiliation, mental pain" or "mental anguish" since the damages now claimed are solely monetary. For the same reason, Plaintiffs may ignore the portion of the interrogatory which asks them to identify any source of counseling or medical treatment.
However, because the remaining counts in their complaint are all factually dependent upon their having been disparaged by Travelers, Plaintiffs must still disclose to Travelers every incident of which they are aware in which they were disparaged, identifying every individual or entity involved in each incident. Even if Plaintiffs do not believe they have full knowledge yet, they must now disclose all information currently in their possession. I direct them to answer this Interrogatory, as I have limited it, within seven days of the date of this Order.
B. Interrogatory No. 14
Describe in detail every occasion when a judge has praised or criticized you or your conduct in writing or otherwise on the record. Separately for each such occasion, identify any lawsuit involved; state the date of the occasion; describe the praise or criticism; and identify any Documents or things that refer or relate to the praise or criticism, including but not limited to any transcript or opinion (whether published or not) including the praise or criticism.
I agree with Travelers that, despite Plaintiffs argument to the contrary, the information requested remains relevant to this action because of Plaintiff's general assertion that it was unable to market its product because of Defendants' actions. Travelers is entitled to explore the possibility that other reasons may have existed which would explain refusals to deal with Plaintiffs. I will therefore direct Plaintiffs to answer this Interrogatory within seven days of the date of this Order, except that they need only provide information as to praise or criticism which has not been published. Travelers can easily obtain published legal materials from legal research sources.
C. Interrogatory No. 15
Describe in detail every occasion on which a complaint about you has been sent to or considered by any legal, accounting, or other professional disciplinary board or other disciplinary entity. Separately for each such occasion, state the date of the complaint and any disciplinary inquiries or other proceedings; identify the disciplinary board or other entity involved, identify any opinions, correspondence or other documents related to such inquiries or proceedings; if the complaint relates to a litigation, state the name of the judge, case name and number, identify opposing counsel and describe the resolution of the matter.
As with Interrogatory No. 14, this interrogatory seeks material which is relevant to Plaintiff's claim that Traveler's actions caused it a loss of business. For the same reason I have stated with respect to Interrogatory No. 14, I will direct Plaintiffs to respond to this Interrogatory within seven days of the date of this Order.
D. Interrogatory No. 16
Identify every lawsuit in which you have been involved as a party, counsel or witness.
For the reasons set forth above with respect to Interrogatory Nos. 14 and 15, I will direct Plaintiffs to answer this Interrogatory within seven days of the date of this Order. Lawsuits should be identified by caption, docket number and court.
E. Document Request No. 40
[Produce] each application for a life insurance or annuity product which you have submitted on behalf of a customer or potential customer for use with a Section 412(i) Plan or the Invention, and Communications with that customer or potential customer regarding such application.
In communications subsequent to the telephonic conference on this motion, Travelers narrowed this request to ask for a list giving the following information for each of the applications:
1. Date of the application.
2. Name of the applicant
3. Name of the employer or sponsor of the 412(i) plan.
4. Name of any agent, producer, or salesperson involved.
5. Company to whom the application was made.
6. Specific name and type of life insurance and/or annuity product applied for.
7. Any indication whether the application was accepted, whether the policy was ever issued, and whether a commission was paid.
Limited in this way, the request is not unduly burdensome or oppressive, as Plaintiffs have argued. It plainly seeks relevant information, since Travelers is entitled to determine Plaintiffs' success in marketing their 412(i) plan, both before and after the alleged disparagement.
F. Document Request No. 44
[Produce] your federal and state tax returns, including all schedules, worksheets, and supporting documentation, for all tax years encompassing any part of calendar years 2001, 2002, 2003 and 2004.
Plaintiffs themselves have conceded in their August 13, 2004, letter to the Court that income tax returns may be discovered where they are relevant, citing, among other cases, United States v. Ehrlich, Civ. A. 95-661, 1996 WL 392251 (E.D. Pa. July 11, 1996). In Ehrlich, the Honorable Norma Shapiro wrote that the party seeking discovery bears the burden of demonstrating relevance. Id. at *2. If they are shown to be relevant, the tax returns are discoverable unless the party from whom the tax returns are sought shows that the information available in the tax returns can be obtained from other sources. Id.
The relevance of Plaintiffs' tax returns is apparent. Since they have alleged a diminution of income due to Defendants' actions, they have put the contents of their income tax returns at issue. This is true not only of Pennmont, but of Koresko as an individual, since he is a plaintiff in his individual capacity and must therefore intend to argue that he suffered a diminution of his personal income. For this reason, the tax returns should be supplied to Travelers.
G. Additional Matters
Travelers has asked me to compel Plaintiffs to produce any documents, other than those specifically dealt with above, which it is withholding on the ground that the requests are focused on the libel and slander counts which have been dropped. Travelers' position is that this is not a valid basis for failing to produce documents, since the discovery which is relevant now is identical to that which was relevant under the original complaint.
I am not willing to rule in such a broad fashion. I will neither find that Plaintiffs have a general right to withhold documents on this basis, nor will I rule that they have no such right. In order to obtain protection for any specific document, Plaintiffs must seek a protective order in a motion which specifies the exact document/s at issue. By the same token, in order to compel the production of any document, Travelers must specify which specific document/s it is seeking to compel. Any material not specifically ruled upon in this Order has not yet been protected or ordered produced.
As a second additional matter, Travelers has asked me to compel Plaintiffs to verify their interrogatory responses. Indeed, Fed.R.Civ.Pr. 33(b) provides that interrogatories are to be answered "under oath." I will therefore compel Plaintiffs to provide verification for unverified answers they have already produced, and remind them to provide proper verification in the future.
ORDER
AND NOW, this day of August, 2004, upon consideration of Travelers' Cross-Motion to Compel Discovery, docketed in this case as Document No. 35, Plaintiffs' response thereto, and the parties' letter submissions subsequent to a telephonic conference on this motion, I hereby ORDER that Travelers' Motion is GRANTED IN PART and DENIED IN PART.
1. Plaintiff are directed to answer Travelers' Interrogatory Nos. 8 and 14 in part, as explained in the attached Opinion, within seven days of the date of this Order;
2. Plaintiffs are directed to answer Travelers' Interrogatory Nos. 15 and 16 in full, within seven days of the date of this Order;
3. Plaintiffs are directed to provide a complete production in response to Travelers' Document Requests Nos. 40, 44 and 57 within seven days of the date of this Order.
4. Plaintiffs are to provide proper verification for all unverified interrogatory answers already provided, and are to properly verify all future answers.