Opinion
Civil Action No. 04-00769.
August 20, 2004
ORDER AND OPINION
I. Introduction
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.
As part of a motion to compel discovery responses, defendant Travelers Life and Annuity Co. ("Travelers") asks that I sanction Plaintiffs for their "obstructionist behavior" and that I preclude them from offering damages evidence at trial. As discussed below, I will not consider an extreme sanction, such as the preclusion of evidence. Nor can I sanction Plaintiffs for the "scores of examples" of obstructionist behavior set forth in a letter attached as Exhibit 32, but not discussed in Traveler's motion. I will, however, permit counsel for Travelers to recover that portion of her fees expended for moving to compel responses to the discovery requests discussed below.
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. Interrogatories 8, 9 and 12 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. Interrogatory No. 9 : Describe in detail each trade secret that you contend was misappropriated by any one or more Defendants. For each such trade secret, state whether each such trade secret encompasses more, the same as, or less than the claims asserted in U.S. Patent application publication US 2002/0198802 A1; describe in detail any differences between each trade secret and that publication; Identify every person to whom you revealed that trade secret; and Identify and Documents that refer or relate to each alleged trade secret and/or misappropriation. Interrogatory No. 12 : Describe in detail all pecuniary damages you are claiming, including and itemizing separately for each instance of damage the nature and source of such damages, the dollar amount of such damages, each formula and step used in calculating such damages, the data used in calculating such damages, the source(s) of information you used to calculate such damages, an allocation of such damages between the different counts of the Complaint, an allocation of those damages between each Defendant, and a detailed explanation of the causal connection between the acts you allege the Defendants committed and the damages you allege you suffered. Identify any Documents that refer to such damages.
As Travelers points out, these interrogatories differ, but they all ask Plaintiffs to identify the persons or entities involved in the facts underlying this case. Plaintiffs' original responses were lengthy, and I will not reproduce them here, but they do not identify a single individual; Plaintiffs refer to the individuals who were discouraged from trading with them only as "certain agents and advisers." Responses, attached as Exhibit 9 to Declaration of Robert W. Ashbrook in Support of Travelers' Motion. Moreover, none of Plaintiffs' responses to these interrogatories included a claim of confidentiality. Id.
In their August 10, 2004, letter written after the telephonic conference, Plaintiffs agreed to answer Interrogatories 9 and 12 "to the best of their ability." However, the fact that they agreed to this after nothing had changed except for the entry of a confidentiality order — here, irrelevant, since there was no claim of confidentiality — simply highlights the fact that they could have answered these interrogatories fully in the first place.
As to Interrogatory No. 8, Plaintiffs maintained in their August 10, 2004, letter, that the information it sought was no longer discoverable because of their filing of a First Amended Complaint dropping claims for libel and slander. (I recently entered an order upholding this objection in part, and denying it in part). Here again, however, Plaintiffs did not file their Amended Complaint until after Travelers filed its motion — indeed, not until the date of the telephonic conference. Neither did it provide Travelers with the information requested, which, at least until the dropping of the libel and slander charges, was clearly a proper subject of discovery. As with the other two interrogatories, therefore, Plaintiffs delayed taking any action on Travelers' interrogatory until Travelers sought assistance from the court. This is not a legitimate approach to discovery.
B. Document Requests 29 and 46 Request No. 29 : [Produce] all contacts and Communications between you, on the one hand, and large carriers, on the other hand, that refer or relate to their interest in future marketing opportunities. Response : Plaintiffs incorporate the general objections above. Plaintiffs also object to this request as vague since Travelers did not define "large carriers."
Travelers has suggested that certain other responses to requests for production of documents were frivolous, but I do not agree. In response to Request Nos. 21 and 33, Plaintiffs did object to language as vague which was taken directly from their complaint, as with Requests 29 and 46. However, as to No. 21, the term "publication" probably does warrant definition in the co ntext of a discovery response. As to No. 33, the Plaintiffs agreed to provide the requested material, rendering their objection essentially moot.
As to Request No. 4, which seeks correspondence between the Plaintiffs and each defendant, it is true that this material could not be shielded from Travelers as privileged, but this was not Plaintiffs' position. Instead, Plaintiffs answered that they would produce the documents after the entry of a protective order. This position is not without a basis since the correspondence could easily contain material which Plaintiffs legitimately believe deserves protection from the eyes of third parties.
Plaintiffs, in their original complaint, claimed to have contacted "over a dozen large carriers" for their interest in future marketing opportunities. Complaint at ¶ 57. Therefore, they could not reasonably object to the term as vague. Request No. 46 : [Produce] all documents or things that refer or relate to your contention that you are national leaders in the employee welfare benefit and taxation industry. Response : Plaintiffs incorporate the general objections above as if the same were set forth at length herein and further object to this request as vague since Travelers did not define "welfare benefit and taxation industry."
Here, again, since the Plaintiffs wrote in their complaint, at ¶ 72, that they were "national leaders in the employee welfare benefit and taxation industry" they had no basis for objecting to the term as vague.
C. Damages Evidence
As noted, Travelers has asked that Plaintiffs be precluded from producing any evidence at trial as to their damages, because they did not respond to Travelers' Interrogatory No. 12, which is set forth above. Plaintiffs' response follows:
Subject to and including without waiving the general objections, at the time prior to Bleiweis's, CJA's and Traveler's interference, PennMont had in excess of four hundred proposals for Variable 412(i) pending for consideration by clients and their advisors. Prior to Bleiweis's, CJA's, and Traveler's interference, American General offered Plaintiffs licensing fees of $1.5 million for Variable 412(i). Certain agents and advisors reported that they or their clients were withdrawing interest in PennMont's proposal or its invention because of the false and misleading statements circulated by Bleiweis, CJA, and Travelers, particularly the false statement that the invention was not the subject of a patent pending and not a trade secret.
As a proximate result of Defendants' wrongful conduct, Plaintiffs have directly lost 412(i) business and business ancillary thereto, including legal clients seeking estate planning and tax advice, financial planners interested in PennMont's programs generally, existing partnership referrals and financial professionals discouraged from developing new business opportunities. Plaintiffs have been damaged in an amount exceeding $10,000,000 for loss of existing and prospective business opportunities.
Although I will not order the harsh sanction Travelers requests, I agree that Plaintiffs' response is inadequate. It could not be more clear that Plaintiffs must explain how they have calculated ten million dollars in damages, other than the $1.5 million allegedly lost from American General.
In their August 10, 2004, letter, Plaintiffs write rather obliquely that, with respect to Interrogatory No. 12, they will "detail the further facts as to the trade secrets, invention, and disclosure to the best of their ability." I can only assume that this indicates a willingness to provide the detailed damages calculation Travelers has requested. In any event, Plaintiffs have not shown why Travelers should have had to file a motion to obtain this information, which is clearly relevant and discoverable.
IV. Conclusion
For the reasons set forth above, I now enter the following:
ORDER
AND NOW, this 20th day of August, 2004, upon consideration of Travelers' Cross-Motion to Compel Discovery and to Award Sanctions, docketed in this case as Document No. 35 and Plaintiffs' Response thereto, it is hereby
ORDERED that Travelers' motion is GRANTED to the extent that Plaintiffs are directed to compensate Travelers for that portion of its fees which are proportionate to its effort to compel responses to Interrogatories 8, 9 and 12; and Document Requests 29 and 46. It is further
ORDERED that Travelers shall submit an appropriate fee petition within 10 days of the date of this Order. Plaintiffs' may respond to Travelers' petition within 7 days of the date of its filing.