Echon et al v. Sackett et al

Filing 62

ORDER by Magistrate Judge Nina Y. Wang on 01/27/16 granting in part and denying in part 60 Plaintiff's Second Motion to Compel Discovery. Consistent with the direction of this Order, Defendants must serve discovery responses to Interrogatorie s 1 (as limited) - 5, 7-16, and supplemental responses, including production of responsive documents, to Requests for Production No. 2-4, 6, 8, 10, and 11 on Plaintiffs no later than February 9, 2016; and no further extensions to the deadline for Defendants to respond to these discovery requests will be permitted.(nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03420-PAB-NYW
ESMERALDO VILLANUEVA ECHON, JR.,
MARIBEL ECHON, and
JUSTIN ECHON,
Plaintiffs,
v.
WILLIAM SACKETT, and
LEONIDA SACKETT,
Defendants.
____________________________________________________________________________
ORDER
______________________________________________________________________________
Magistrate Judge Nina Y. Wang
This civil action comes before the court on Plaintiffs’ Second Motion to Compel
Discovery [#60], filed on December 4, 2015 by Plaintiffs Esmeraldo Villanueva Echon, Jr.,
Maribel Echon, and Justin Echon (collectively, “Plaintiffs” or the “Echons”). This motion was
referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1), the Amended
Order Referring Case dated August 28, 2015 [#46], and the memorandum dated December 4,
2015 [#61]. The time for Defendants to respond to Plaintiffs’ Second Motion to Compel
Discovery has passed, and no response has been filed. Accordingly, having reviewed Plaintiffs’
Second Motion to Compel Discovery, the relevant case law, and the entire docket of this action,
this court finds that oral argument would not materially assist in the disposition of Plaintiffs’
Motion and hereby GRANTS IN PART and DENIES IN PART Plaintiffs’ Second Motion to
Compel for the following reasons.

BACKGROUND
Plaintiffs initiated this action on December 18, 2014 by filing a Complaint asserting the
following claims: (1) violation of the Trafficking Victims Protection Reauthorization Act
(“TVPRA”); (2) violation of the Fair Labor Standards Act (“FLSA”); (3) violation of the
Colorado Minimum Wage of Workers; (4) violation of the Colorado Wage Claim Act; (5)
Breach of Contract; (6) Breach of Contract—Third Party Beneficiary Claim; and (7) Unjust
Enrichment. [#1]. Plaintiffs allege that Defendants, who operate several businesses and manage
a farm in Rocky Ford, Colorado, held them in “debt bondage, requiring them to work on their
crops and in their market, clean and maintain their rental properties, and perform various other
jobs from 2011–2014,” without pay. [#1 at ¶ 2]. Defendants, who are proceeding pro se, filed
an Answer on March 18, 2015. [#11].
This court held a Scheduling Conference on April 23, 2015, at which the undersigned
ordered the Parties to complete discovery by October 22, 2015 and file dispositive motions by
January 22, 2016. [#16, #17]. On August 8, 2015, Plaintiffs moved this court to amend the
Scheduling Order due to a stated reluctance on the part of Defendants to comply with their
obligations to respond to discovery under the Federal Rules of Civil Procedure. [#23]. After a
telephonic status conference, this court amended the Scheduling Order to extend the discovery
completion date to January 22, 2016 and dispositive motion deadline to February 19, 2016.
[#27]. Defendants subsequently filed a letter with the court representing that they did not receive
notice of the telephonic status conference until four hours after the telephone conference was to
take place, and that the conference was set for a time when they were unable to participate.
[#40].
On August 19, 2015, Plaintiffs filed their first Motion to Compel Discovery seeking an

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order compelling Defendants to respond to their First Set of Interrogatories and Requests for
Production Nos. 2 through 9, and 11. [#32]. In response, Defendants filed their interrogatory
responses, but did not respond to the first Motion to Compel Discovery. [#50]. The court held a
hearing on October 1, 2015, in which Mr. Sackett stated that although Defendants could afford
counsel, they preferred to proceed pro se. This court explained to Defendants that although they
were proceeding pro se, they were obligated to abide by the Federal Rules of Civil Procedure. In
addition, this court explained that failing to respond to discovery appropriately could lead to
sanctions. [#52]. Based on Defendants’ stated concerns regarding disclosing their private
information, the court ordered the Parties to meet and confer regarding a protective order, and to
file a proposed protective order for the court’s consideration no later than October 15, 2015.
[Id.]. At the hearing, Defendants brought a number of responsive documents and produced them
to Plaintiffs. [#60 at 7].
The following day, Plaintiffs filed a second Motion to Amend the Scheduling Order,
seeking to extend the pretrial deadlines yet again to accommodate Defendants’ forthcoming
discovery responses. [#53]. This court granted that second Motion to Amend the Scheduling
Order; the operative deadlines now include a discovery deadline of April 22, 2016, a dispositive
motions deadline of May 20, 2016, and interim expert witness deadlines of February 15 and
March 15, 2016. [#55]. The court had not yet set a Final Pretrial Conference date. [Id.].
Unfortunately, the Parties’ pretrial difficulties did not cease.

On October 15, 2015,

Plaintiffs submitted a Status Report representing that Defendants had failed to participate in the
negotiation of a proposed protective order. [#56]. After allowing two weeks for Defendants to
respond, the court entered a Protective Order without input from Defendants. [#57]. On
November 30, 2015, the court held an informal discovery conference regarding Defendants’

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continued failure to comply with discovery in this case. [#59]. This court again reminded
Defendants that their continued resistance towards responding to discovery would lead to
sanctions, potentially including default judgment. [Id.]
On December 4, 2015, Plaintiffs filed the instant Second Motion to Compel Discovery.
[#60]. In their Second Motion to Compel Discovery, Plaintiffs seek a second order compelling
Defendants to respond to their First Set of Interrogatories. [Id. at 6-7]. Defendants further
contend that Defendants have still failed to produce documents responsive to Request for
Production Nos. 2-4, 6, 8, 10, and 11. [Id. at 7-10]. The time for Defendants to respond to the
Second Motion to Compel Discovery has long passed, without a response.
ANALYSIS
I.

Applicable Law
A.

Discovery Rules

Rule 26(b)(1) of the Federal Rules1 governs the scope of discovery in a civil action, and
permits the discovery of any nonprivileged matter that is relevant to any party’s claim or defense
so long as it is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). In assessing
proportionality, the rule requires the court to consider the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit. Id. This case presents several

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Pursuant to 28 U.S.C. § 2074(a) and the Order of the Supreme Court dated April 29, 2015, the
amendment shall govern all civil cases commenced after December 1, 2015 and “insofar as just
and practicable, all proceedings then pending.”
See http://www.supremecourt.gov/orders/courtorders/frcv15(update)_1823.pdf. Because this
court concludes that these obligations were attendant on Parties before the amendments to the
Rules, see Cartel Asset Mgmt. v. Ocwen Fin. Corp., No. 01-CV-01644-REB-CBS, 2010 WL
502721, at *10 (D. Colo. Feb. 8, 2010), this court applies Rule 34, as effective December 1.

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issues that the court will account for in its consideration of proportionality, including the fact that
Defendants are unrepresented; the Parties in this case are related and such relationship has
caused complications regarding the progress of this litigation; and the allegations as set forth in
the Complaint raise serious issues of human trafficking and violations of labor and wage laws.
A party receiving discovery has obligations under the Federal Rules. A party responding
to interrogatories must serve its answers and any objections within 30 days after being served
with the interrogatories. Fed. R. Civ. P. 33(b)(2). To the extent that it is not objected to, each
interrogatory must be answered separately and under oath. Fed. R. Civ. P. 33(b)(3). In addition,
the grounds for objecting to interrogatories must be stated with specificity, and a responding
party has the obligation to explain and support its objections. Cartel Asset Mgmt v. Ocwen
Financial Corp., No. 01-cv-01644, 2010 WL 502721, *10 (D. Colo. Feb. 10, 2010).
Similarly, a party must respond to requests for production of documents within 30 days
after being served. Fed. R. Civ. P. 34(b)(2)(A). For each item or category, the response must
either state that inspection or production will be made, or set forth with specificity a ground for
objection. Fed. R. Civ. P. 34(b)(2)(B). If a party contemplates production of documents, then
the production must be made no later than a reasonable time set forth in the response. Id. If a
party objects, the party must state whether any responsive materials are being withheld on the
basis of that objection. Fed. R. Civ. P. 34(b)(2)(C). The Advisory Committee’s Notes are clear:
an objection may state that a request is overbroad but the objection must also state if some
portion of the request is not overbroad, and the party should respond to the portion that is not
objectionable. Fed. R. Civ. P. 34(b)(2)(B) Advisory Committee’s note to 2015 amendment.

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B.

Pro Se Obligations

During the Motion Hearing on October 1, 2015, Defendants informed the court that while
they had the resources to retain counsel, they wished to proceed pro se. It is well-settled that
filings by pro se parties are interpreted liberally by the court. Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). However, a party’s pro se status does not exempt her from complying
with the procedural rules that govern all civil actions filed in this District, namely, the Federal
Rules of Civil Procedure and the Local Rules of Practice for the District of Colorado. See
Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008). In addition, the court
plays a neutral role in the litigation process, and cannot assume the role of an advocate for the
pro se party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998).
II.

Interrogatories
Based on the record before the court, there is no dispute that Defendants have failed to

respond to any Interrogatories propounded by Plaintiffs. By the court docket, this is the fourth
time the court has advised Defendants that they are required to adhere to the same Rules of
Procedure that bind represented parties, see [#39, #52, #59], and the third time that the court has
ordered Defendants to respond to the propounded discovery.

See [#52, #59].

Each time,

Defendants advise the court that they will undertake further responses, but to date, there is nothing
in the record to suggest that such responses have been made or are reasonably forthcoming.
While this court is sympathetic to challenges facing pro se parties, I decline to excuse Defendants
from the expectation that they comply with their discovery obligations under the Federal Rules of
Civil Procedure, and any further extensions are simply unacceptable in light of the alreadyprotracted nature of the pretrial process.
As previously discussed by this court in the various discovery hearings, certain

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Interrogatories as written are overly broad and fail to comply with Rule 26(b)(1). Interrogatory
No. 1 seeks the identification of every individual, and their respective social security number and
date of birth since January 1, 2011 to the present. As previously directed by the court, Defendants
are directed to respond to Interrogatory No. 1 without providing the social security number or date
of birth of the individuals. In addition, Defendants are reminded that they are required to respond
with information that is within their possession, custody and control, based on a reasonable
inquiry.

Fed. R. Civ. P. 26(g). Similarly, Interrogatory No. 6, which seeks the identity of all

people, including any employee or co-worker, with whom Defendants have had conversations
about Plaintiffs, is too broad on its face. The Interrogatory has no time limitations, Plaintiffs and
Defendants are related, and Plaintiffs have failed to establish that the Interrogatory as written is
tailored and proportional to the issues relevant to this case. In addition, this court declines to
redraft Plaintiffs’ Interrogatory No. 6, and therefore, strikes it with leave to propound an
appropriate, more narrowly tailored Interrogatory.

The remainder of the Interrogatories

(including Interrogatory No. 1 as narrowed) require a response by Defendants, verified as true as
required by Rule 33,2 no later than February 9, 2016. Defendants are specifically advised that
failure to appropriately respond to the Interrogatories as limited by this Order will lead to
sanctions pursuant to Federal Rules of Civil Procedure, including but not limited to
attorney’s fees, and may lead this court to recommend the entry of default against
Defendants.
III.

Requests for Production
Plaintiffs concede that some responsive documents have been produced by Defendants but

argue that Defendants’ production is deficient with respect to Requests for Production No. 2-4, 6,

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The form of verification executed by Ms. Sackett at [#60-3 at 1] is sufficient for the purposes of
the Rule.
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8, 10, and 11. In interpreting Defendants’ papers liberally, this court construes Defendants’
statements filed at [#60-2; #50] as Defendants’ objections and responses to Plaintiffs’ Requests
for Production. As explained to the Parties during the various discovery conferences, this court
cannot compel Defendants to produce what they do not have; however, according to Rule 34,
Defendants must clearly state if any responsive documents are being withheld based on their
objections to the Requests for Production. Fed. R. Civ. P. 34(b)(2)(C). In addition, to the extent
that Defendants intend to argue that they financially supported Plaintiffs as part of their defenses,
see [#26], Defendants must produce all documents in their possession, custody or control that
reflect such financial support. Finally, Defendants’ concerns regarding privacy of their personal
information and finances are addressed by the Protective Order that the court entered on
November 3, 2015. See [#57]. Defendants are ordered to supplement their responses to Requests
for Production No. 2-4, 6, 8, 10, and 11 no later than February 9, 2016, by producing responsive
documents (pursuant to the Protective Order, if appropriate) and by clarifying whether they are
currently withholding any documents based on their objections. Defendants are specifically
advised that failure to appropriately respond to the Requests for Production will lead to
sanctions pursuant to Federal Rules of Civil Procedure, including but not limited to
attorney’s fees, and may lead this court to recommend the entry of default against
Defendants.
CONCLUSION
For the reasons set forth herein, IT IS ORDERED that:
(1)

Plaintiffs’ Second Motion to Compel Discovery [#60] is GRANTED IN PART

and DENIED IN PART;
(2)

Consistent with the direction of this Order, Defendants must serve discovery

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responses to Interrogatories 1 (as limited) - 5, 7-16, and supplemental responses, including
production of responsive documents, to Requests for Production No. 2-4, 6, 8, 10, and 11on
Plaintiffs no later than February 9, 2016; and
(3)

No further extensions to the deadline for Defendants to respond to these discovery

requests will be permitted.

DATED: January 27, 2016

BY THE COURT:

s/Nina Y. Wang
United States Magistrate Judge

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