Opinion
CIVIL ACTION NO: 00-0804 SECTION: "N" (4)
September 19, 2000
On July 18, 2000, the plaintiff, Louis Miller, ("plaintiff") filed a Motion to Compel Answers to Interrogatories and Responses to Request for Production of Documents (doc #7) against the defendants, Narval Shipping Corp., Cankeld Shipping Co. and United Kingdom Mutual Steamship Assurance Air Liquide America Corporation ("defendants"), contending that the defendants have failed to respond to the plaintiff's Interrogatory Nos. 1, 7, 8 and 9 and Request for Production Nos. 1, 8 and 9, and that they have inappropriately objected to responding to Interrogatory Nos. 2, 3, and 6 and Requests for Production of Documents Nos. 2, 3, 4, 5 and 10. Thus, the plaintiff seeks an order from the Court, compelling the defendants to provide full and complete responses to his discovery requests.
I. Legal Analysis: Discovery Obligations
Rule 33 of the Federal Rules of Civil Procedure detail the affirmative obligations imposed on parties when responding to interrogatories: [e]ach interrogatory shall be answered separately and fully in writing under oath, unless it is objected to. in which event the objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable." See Fed.R.Civ.Proc. 33(b)(1).
Rule 34 similarly details the parties' obligations when responding to requests for production of documents: "[t]he party upon whom the request is served shall serve a written response within 30 days after the service of the request. . . ." The response shall state, with respect to each item or category, that inspection . . . will be permitted as requested, unless the request is objected to, in which event the reasons for the objection shall be stated." See Fed.R.Civ.Proc. 34(b).
Under the federal rules, an evasive or incomplete response is equal to a party's complete failure to respond. See Fed.R.Civ.Proc. 37(a)(3). The Court will now consider the sufficiency of the defendants objections and responses.
A. Policies of Insurance
Plaintiff's Interrogatory No. 1 requires the defendants to provide the name, address, and telephone number of the owner of the M/V Paragon, the operator or manager of the M/V Paragon, the employer of the plaintiff, and the insurer of the M/V Paragon on the date of the plaintiff's accident. Similarly, plaintiff's Request for Production of Documents No. 1 requires the defendants to provide certified copies of any insurance and/or indemnity policies covering the M/V Paragon at the time of the plaintiff's accident, including any documents amending or supplementing said policies.
The defendants did not respond or object to Interrogatory or Request for Production Nos. I within the legal delays. Instead, the defendants, in their opposition memorandum contend that the plaintiff already has in his possession all information responsive to Interrogatory No. 1 and that no coverage defenses have been asserted, and therefore the plaintiff has no need for policies of insurance.
Under Rule 26, the information sought is clearly relevant and discoverable. Indeed, the rule expressly states that discovery and production of any insurance policies or agreements that may satisfy part or all of a judgment rendered is proper. See Fed.R.Civ.Proc. 26 (a)(1)(D). The fact that an insurance claim has or has not been filed in this case is inapposite to the defendants' obligation to respond to the plaintiff's interrogatory and to produce all responsive documents, within the legal delays. The plaintiff's request for an order compelling the defendants to provide a full and complete response to Interrogatory and Request for production of Document Nos. 1 is GRANTED. The defendants shall respond within twenty (20) days of this order.
B. Identification of Witnesses
Plaintiff's Interrogatory No. 6 requires the defendants to provide the name, address. and telephone number of any person or entity which the defendants contend is or may be a witness to the plaintiff's accident. Interrogatory No. 7 requires the defendants to provide the name, address, and telephone number of each and every witness which the defendants will or may call to testify at trial.
The defendants object to the information requested in Interrogatory No. 6 as being premature. Specifically, the defendants contend that they are not required to disclose their witnesses prior to the Court's deadline for tiling witness lists. The defendants did not respond or object to Interrogatory No. 7 within the legal delays, but instead state in their opposition memorandum that all responsive information can be found in the plaintiff's deposition.
Rule 26 expressly provides that within the proper scope of discovery is "the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter." See Fed.R.Civ.Proc. 26(b)(1) (emphasis added); Bell v. Swift Company, 283 F.2d 407, 409 (5th Cir. 1960) (citations omitted). See also 8 Wright Miller, Fed. Prac. Proc. Civ.2d § 2013, Identity of Witnesses (names and addresses of persons having knowledge of relevant facts is discoverable).
Plaintiff's Interrogatory No. 6 essentially seeks to discover the identity of persons having knowledge of the underlying accident. Accordingly, the information requested is relevant and discoverable under Rule 26. See Fed.R.Civ.Proc. 26(b)(1). The defendants, therefore, had an affirmative obligation to provide a full and complete response to Interrogatory No. 6 within the applicable legal delays. The plaintiff's request for an order compelling the defendants to provide a full and complete response to Interrogatory No. 6 is GRANTED. The defendants shall respond within twenty (20) days of this order.
The Court, however, finds that the plaintiff is not entitled to discover the information requested in interrogatory No. 7. See Bell v. Swift Company, 283 F.2d 407, 409 (5th Cir. 1960) (Under Rule 26(b), party is not required to state the names and addresses of witnesses he proposes to introduce at trial). The plaintiff's request for an order compelling the defendants to provide a full and complete response to Interrogatory No. 7 is DENIED.
C. Witness Statements
Plaintiff's Interrogatory No. 8 requires the defendants to provide the name, address and telephone number of all persons interviewed by or on behalf of the defendants relating to the accident, or plaintiff's medical care and condition. It also requests that the defendants identify whether the interviews were recorded or whether the individuals gave written statements, the time and date of the interview or statement, the person who conducted the interview and the person who has a copy of the interview or statement.
The plaintiff contends that the defendants did not respond or object to Interrogatory No. 8 within the applicable legal delays. The defendant in response to the plaintiff's motion vaguely states that the interrogatory has been answered. However, the only evidence before the Court is that the defendants have not provided a response to Interrogatory No. 8.
A party is clearly entitled to discover underlying facts, as well as the creation and existence of relevant documents. See generally Upjohn Co. v. U.S., 449 U.S. 383, 395-96 (1981) (mere existence or creation of documents that may be work product are discoverable, even though actual documents may not be subject to production); Fed.R.Civ.Proc. 26 (b)(1) (proper scope of discovery includes "the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter"). The plaintiff's request to compel the defendants to respond to Interrogatory No. 8 is, therefore, GRANTED. The defendants shall provide a full and complete response within twenty (20) days of this order.
D. Jurisdictional Discovery
The plaintiff contends that the information requested in Interrogatory Nos. 2 and 3 and Requests for Production of Documents Nos. 2, 3, 4, 5 and 10 is relevant in so much as the defendants have indicated in their Answer that they may contest personal jurisdiction. The defendants, on the other hand, have an objected to the requested information, as being over broad, unduly burdensome, and not relevant. The defendants further state that they intend to waive any jurisdiction defense, which will render the requests moot.
Interrogatory No. 2 requires the defendants to provide the name, address, and telephone number of each shareholder, director, or officer of Novel Shipping Corporation as of April 8, 1999.
Interrogatory No. 3 requires the defrndants to provide the name, address, and telephone number of each shareholder, director, or officer of Cankeld Shipping Company, Ltd. as of April 8, 1999.
Request for Production of Documents No. 2 requires the defendants to provide copies of all written agreements entered into by or on behalf of the defendants with any companies, firms, associations, individuals, or entities of any kind which are doing business in Louisiana relating to or pertaining to the plaintitf's accident.
Request for Production of Documents No. 3 requests that the defendants provide copies of defendant Cankeld Skipping Company's corporate charter, by-laws, list of shareholders and officers and directors, and certificate of incorporation.
Request for Production of Documents No. 4 requests that the defendants provide copies of defendant Noval Shipping Corporation's corporate charter, by-laws, list of shareholders and officers and directors, and certificate of incorporation.
Request for Production of Documents No. 5 requires the defendants to provide copies of any and all written agreements or contracts entered into by or on behalf of the defendants and any person or entity relating to the operation, management or control of the M/V Paragon, in effect at the time of the plaintiff's accident.
Request for Production of Documents No. 10 requires the defendants to provide copies of any written document which the defendants contend identifies, designates, or appoints any person or entity as agent for service of process, corporate agent, or agent of any kind on behalf of the defendants in any place. country or jurisdiction.
Discovery on matters of personal jurisdiction is often appropriate, especially when a motion to dismiss for lack of jurisdiction has been brought. See e.g., Kelly v. Syria Shell Petroleum Development, 213 F.3d 841 (5th Cir. 2000); Administrators of the Tulane Educational Fund v. Debio Holdings, S.A., No. 99-2207, 2000 WL 877015 (E.D. La. June 29, 2000). However, in the instant case, the defendants have indicated a willingness to waive any objection to jurisdiction. Thus, to order production of the voluminous records sought, at this juncture. would be costly and premature. The Court, therefore, denies at this time, the plaintiff's request for an order compelling the defendants to respond to Interrogatory Nos. 2 and 3 and Requests for Production of Documents Nos. 2, 3, 4, 5 and 10. Should the defendants, however, seek a dismissal for lack of personal jurisdiction, the plaintiff is free to reurge its motion with respect to these requests.
E. Underlying Facts
Plaintiff's Interrogatory No. 9 requests that the defendants state in detail what the defendants contend was the cause of the plaintiff's accident, including a detailed statement explaining how the accident occurred.
The defendants did not respond or object to Interrogatory No. 9 within the legal delays. The defendants' response in their opposition memorandum does not comport with their affirmative obligation under the Federal Rules. The information requested is clearly relevant and discoverable. As such, the plaintiff's request for an order compelling the defendants to provide a full and complete response to Interrogatory No. 9 is GRANTED. The defendants shall provide a response within twenty (20) days of this order.
F. Maintenance Records
Request for Production of Documents No. 8 requires the defendants to provide copies of all documents, classification certificates, inspections, invoices, logs, records of repair or maintenance pertaining to the lighting aboard the M/V Paragon between January 1, 1999 through the present.
The defendants did not serve a response or objection to Request No. 8 within the legal delays. The defendants, however, contend in their opposition memorandum that they should not be required to respond because the request is over broad, in so much as the plaintiff's contention is that there was no lighting aboard the vessel when his accident occurred.
In his Complaint, the plaintiff alleges that his injuries were the result of inadequate lighting on the M/V Paragon. Specifically, the plaintiff asserts that the defendants were negligent in failing to properly comply with the applicable regulations with regard to the lighting of the ship's deck. As such, maintenance and inspection records pertaining to the vessel's lighting are relevant to the issues in this case. However, the Court finds that the plaintiff is only entitled to responsive documents created on or prior to the date of the plaintiff's accident, April 8, 1999. The plaintiff's request for an order compelling the defendants to respond to Request for Production No. 8 is GRANTED. The Court's order is, however, restricted to documents generated between January 1, 1999 and April 8, 1999. The defendants shall produce all responsive documents within twenty (20) days of this order.
See Rec. doc. #1, Plaintiff's Complaint.
G. Blue Prints
Request for Production of Documents No. 9 requests production of any blueprints of the vessel's main deck. The defendants did not serve a response or objection to this request within the applicable legal delays. In response to the plaintiff's motion, however, the defendants assert that they should not be required to respond, because the plaintiff took photographs of the deck after his accident.
Architectural blueprints of the general area where the plaintiff's accident occurred is relevant and discoverable. As such, the defendants had an affirmative obligation to produce any responsive documents within the applicable legal delays. The defendants' response in their opposition memorandum does not comport with their affirmative obligation under the Federal Rules. The plaintiff's request for an order compelling the defendants to produce all documents responsive to Request for Production No. 10 is, therefore, GRANTED. The defendants shall make production within twenty (20) days of this order.
II. Attorney's Fees
Rule 37 of the Federal Rules of Civil Procedure provides that the Court shall require the party whose conduct necessitated the motion to compel to pay the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the Court finds that the opposing party's nondisclosure was substantially justified, or that other circumstances make an award of expenses unjust. See Fed.R.Civ.Proc. 37 (a)(4)(A) (emphasis added).
The Court finds the defendant's failure to respond to the plaintiff's discovery responses within the applicable legal delays was not substantially justified, thereby making an award of reasonable attorney's fees appropriate. See Fed.R.Civ.Proc. 37(a)(4)(A).
Accordingly,
IT IS THEREFORE ORDERED that the plaintiff's Motion to Compel Answers to Interrogatories and Responses to Request for Production of Documents (doc #7) is hereby GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that the plaintiff's request for an order compelling the responses to Interrogatory Nos. 1, 6, 8 and 9 is hereby GRANTED. The defendants shall provide a full and complete responses within twenty (20) days of this order.
IT IS FURTHER ORDEREDthat the plaintiff's request for an order compelling the defendants to respond to Interrogatory Nos. 2, 3, and 7 is hereby DENIED.
IT IS FURTHER ORDEREDthat the plaintiff's request for an order compelling the defendants to respond to Request for Production of Documents Nos. 1 and 9 is hereby GRANTED. The defendants shall respond to Request for Production of Documents Nos. 1 and 9 within twenty (20) days of this order.
IT IS FURTHER ORDERED that the plaintiff's request for an order compelling the defendants to respond to Request for Production of Documents No. 8 is hereby GRANTED. The defendants shall respond to Request for Production of Documents No. 8 within twenty (20) days of this order. The Court's order is, however, restricted to documents generated between January 1, 1999 and April 8, 1999.
IT IS FURTHER ORDERED that the plaintiff's request for an order compelling the defendants to respond to Request for Production of Documents Nos. 2, 3, 4, 5, and 10 is hereby DENTED.
IT IS FURTHER ORDERED that the plaintiff is awarded his reasonable attorney's fees incurred in filing the instant motion. Should the plaintiff desire to pursue the award of fees, the plaintiff is to submit to the Court the appropriate documentation, by way of a supplemental memorandum.