Opinion
No. 00-3326
May 15, 2002
MINUTE ENTRY
Pending before me is the motion of defendant, Omega Protein, Inc., to compel discovery from plaintiff, Lucky Stevens, and for an award of attorney's fees and costs in connection with the motion. Record Doc. No. 21. The basis of the original motion was that no timely responses to defendant's interrogatories and requests for production had been received.
Plaintiff filed a timely opposition memorandum, Record Doc. No. 23, attaching its written responses to the subject discovery. It appears from the certificates of service that the responses were served on the day after the motion was served, and that the two items may have crossed each other in the mail.
Defendant was subsequently granted leave to file a supplemental memorandum in support of its motion to compel. Record Doc. Nos. 26 and 27. In its supplemental memorandum, defendant confirmed its receipt of plaintiffs discovery responses, but argued that some of the responses are inadequate. Specifically, defendant seeks additional responses to Interrogatories No. 2, 3, 5, 7, 8, 11, 13, 14, 16, 17 and 18 and Requests for Production No. 1, 2, 7, 9, 17, 18, 19, 20 and 22. Plaintiff then submitted a supplemental memorandum in opposition to the motion to compel, addressing the inadequacies alleged by defendant.
Having considered the record, the applicable law and the written submissions of the parties, IT IS ORDERED that defendant's motion is GRANTED IN PART AND DENIED IN PART as follows:
The motion is denied as to Interrogatory No. 2. The current answer is sufficient. The motion asks for supplemental information that was not requested in the interrogatory.
The motion is denied as to Interrogatories No. 3, 11 and 18. The current answers are sufficient, subject of course to the ongoing obligation to supplement imposed by Fed.R.Civ.P. 26(e)(2), and plaintiff must supplement these responses immediately upon receiving additional responsive information. Unlike some of defendant's other interrogatories, Interrogatory No. 11 appears to be a request to identify documents that plaintiff has adequately responded to by referencing documents as permitted by Fed.R.Civ.P. 33(d).
The motion is granted in part and denied in part as to Interrogatories No. 5 and 16 as follows: All objections are overruled, because they are untimely and have been waived. Fed.R.Civ.P. 33(b)(4). However, the responsive portion of plaintiffs' current answers are adequate, if they are true. While it strains credulity that plaintiff is incapable of remembering the date of what appears from his current answer to be a felony criminal conviction or the names and locations of the correctional institutions in which he was imprisoned, he cannot be compelled to provide information he truly does not remember, recognizing, of course, that interrogatory answers may be admissible at trial for a variety of purposes, Fed.R.Civ.P. 33(c), including impeachment. Plaintiff is directed to search his memory and provide supplemental answers to these interrogatories that either provide the additional information requested or clearly state that the current responses contain all responsive information he can presently recall, subject to his ongoing Rule 26 (e)(2) obligation seasonably to supplement these answers.
The motion is granted as to Interrogatories No. 7 and 8. The objection to Interrogatory No. 7 is overruled as meritless and because it has been waived based on its untimely assertion. Fed.R.Civ.P. 33(b)(4). Plaintiffs attempt to respond to these particular interrogatories by vaguely referencing documents is unresponsive and does not comply with Fed.R.Civ.P. 33(d). A full and complete narrative answer to these interrogatories, without objection, must be provided. If plaintiff cannot recall any responsive information other than what has already been provided, he must clearly say so.
The motion is granted in part and denied in part as to Interrogatories No. 13 and 14 as follows: Initially, I again note that all objections are overruled because they are untimely and have been waived. In addition, the motion is granted insofar as it seeks identification of witnesses. The fact that the court requires disclosure of witnesses at a particular time pursuant to Fed.R.Civ.P. 26(a)(3)(A) does not mean that defendant is prohibited from conducting discovery of this information at this time. Disclosure and discovery are two separate and distinct processes by which information may be obtained and exchanged. Compare Fed.R.Civ.P. 26(a) with Fed.R.Civ.P. 26(b). As a function of discovery, plaintiff must provide the requested information now as to any witness he can presently identify. The motion is denied insofar as it requests further relief, because the remainders of these interrogatories are unreasonably duplicative under Fed.R.Civ.P. 26(b)(2)(i) of Interrogatory No. 3(d) and (e), as to which plaintiff has already submitted an adequate current response, subject to the Rule 26(e)(2) continuing obligation to supplement.
The motion is granted as to interrogatory No. 17 and Request for Production No. 22. Although the relevance of the requested information is tangential, plaintiff has waived all objections by failing timely to assert them. See In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989) ("We readily agree with the district court that as a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived."). In addition, plaintiff's attorney-client privilege objection is meritless, since the privilege extends only to communications between lawyer and client for the purpose of giving or receiving legal advice, not to the identity of lawyers. Because no privileged information is requested in this interrogatory, and all objections have been waived, plaintiff must provide the requested information. If (as plaintiff seems to suggest in his supplemental opposition memorandum) no materials responsive to Request for Production No. 22 are in his possession, custody or control, he must clearly say so in a supplemental written response to Request No. 22, submitted as required by Fed.R.Civ.P. 34(b) and signed pursuant to Fed.R.Civ.P. 26(g)(2).
In addition, the copy of plaintiff's interrogatory answers provided to me in connection with this motion fails to comply with Fed.R.Civ.P. 33(b)(1) and (2). The requirement imposed by this rule appears particularly important in this case, in which some of plaintiffs answers appear incredible. Thus, plaintiff must provide the required verification of all interrogatory answers, including the supplemental answers required by this order, signed under oath by plaintiff himself, not his counsel, as required by Rule 33(b).
The motion is denied as to Request for Production No. 1, and the current response is sufficient. Plaintiff is obligated to produce only materials "which are in the possession, custody or control of the party upon whom the request is served." Fed.R.Civ.P. 34(b). Plaintiff has submitted a written response, signed pursuant to Fed.R.Civ.P. 26 (g)(2), stating that he has no such documents in his possession. The court cannot compel a party to produce that which he does not possess. of course, like all other discovery responses, this response is subject to plaintiff's ongoing Rule 26(e)(2) obligation to supplement it.
For similar reasons, the motion is denied as to Requests for Production No. 2, 9 and 17, subject to the following condition: The current responses are sufficient, as long as plaintiff intends to convey that the requested production is being permitted in its entirety. Thus, plaintiff must provide defendant with supplemental written responses, as required by Fed.R.Civ.P. 34(b) and signed pursuant to Fed.R.Civ.P. 26 (g)(2), clearly stating that all responsive materials in his possession, custody or control are being produced.
The motion is denied as to Request for Production No. 7. This is not a proper Rule 34 request for production of documents or other tangible items. Plaintiff is under no obligation to create documents in response to such a request. Information of the sort plaintiff appears to seek in this request is more appropriately and conveniently obtained by taking plaintiffs deposition. Fed.R.Civ.P. 26(b)(2)(i).
The motion is granted as to Request for Production No. 18, but only as follows: The relevance and materiality objections are overruled. Plaintiffs assertion of a privilege objection is inadequate because it fails to comply with Fed.R.Civ.P. 26(b)(5). Under somewhat similar circumstances in other cases, where the Rule 26(b)(5) log has not been provided, all assertions of privilege or other protections against the requested discovery have been deemed waived. Bordonaro v. Union Carbide Corp., No. 93-3355, 1995 WL 234545, at *2 (E.D. La. April 20, 1995) (Duval, J.); Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 589, 594 (W.D.N.Y. 1996); Massachusetts School of Law at Andover Inc. v Amer Bar Ass'n, 914 F. Supp. 1172, 1178 (E.D. Pa. 1996). However, rather than impose the draconian remedy of waiver to an objection with the unique significance of privilege at this time, I will instead require plaintiff to do what he should already have done; i.e., provide the log required by Rule 26(b)(5). Failure to do so as provided herein will result in waiver of plaintiffs privilege objections. Thus, plaintiff must provide a supplemental written response to this request stating either that all non-privileged responsive materials are being produced or that no non-privileged responsive materials are in his possession, custody or control, and incorporating the Rule 26(b)(5) privilege log.
The motion is granted as to Request for Production No. 19, but only as follows: Plaintiffs objections concerning prematurity are overruled. It appears from plaintiff's written submissions that he is attempting to state that no materials responsive to this request are in his possession, custody or control. If that is so, plaintiff must clearly say so in a supplemental written response of the type required by Fed.R.Civ.P. 34(b), signed pursuant to Fed.R.Civ.P. 26(g)(2). If not, plaintiff must produce all responsive materials and clearly say that he is doing so in a clear written response to this request.
The motion is granted as to Request No. 20. The objection is overruled. The fact that the court requires disclosure of trial exhibits at a particular time pursuant to Fed.R.Civ.P. 26(a)(3)(C) does not mean that defendant is prohibited from conducting discovery of this information at this time. As noted above, disclosure and discovery are two separate and distinct processes by which information may be obtained and exchanged. Compare Fed.R.Civ.P. 26(a) with Fed.R.Civ.P. 26 (b). As a function of discovery, plaintiff must provide the requested information now as to any trial exhibits he can presently identify, by describing them specifically in a supplemental written response to this request.
All supplemental interrogatory answers, together with the Rule 33(b) verification, written responses to requests for production, together with the Rule 26(b)(5) privilege log, and all responsive documents required by this order must be provided no later than May 31, 2002.
All requests for awards of attorney's fees and costs incurred in connection with this motion are denied. The motion has been granted in part and denied in part. Under these circumstances, a just apportionment of fees and expenses is that each party should bear its own. Fed.R.Civ.P. 37(a)(4)(C). Counsel are instructed that, in the court's view, much (if not all) of this motion should have been resolved by counsel acting (a) in good faith as required by Local Rule 37.1E and Fed.R.Civ.P. 37(a)(2)(B) and (b), in conformity with the applicable discovery rules. You must do so in the future.