Echon et al v. Sackett et al

Filing 73

ORDER by Magistrate Judge Nina Y. Wang on 5/2/16. Plaintiffs' Third Motion to Compel Discovery 64 is GRANTED IN PART and DENIED IN PART; The Motion is GRANTED as to the Interrogatory Responses and Defendants are COMPELLED to respond to the ou tstanding interrogatories fully, in narrative form, no later than May 16, 2016 and Defendants MUST PAY the portion (but in any case, no more than fifty percent (50%)) of the reasonable expenses associated with this instant Motion to Compel attri butable to the deficient interrogatory responses, to be determined by a forthcoming motion for reasonable expenses to be filed by Plaintiffs no later than May 16, 2016; The Motion is DENIED as to the Requests for Production. (Attachments: # 1 Exhibit Gonzales v City of Albuquerque Case Law, # 2 Exhibit Smith v Pizza Hut Inc Case Law, # 3 Exhibit Bouchard v Whetstone Case Law, # 4 Exhibit Miller v Kastelic)(bsimm, )

Gonzales v. City of Albuquerque, Not Reported in F.Supp.2d (2010)
2010 WL 553308

2010 WL 553308
Only the Westlaw citation is currently available.
This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
United States District Court,
D. New Mexico.
Antoinette GONZALES, Caroll Austin, Sarah
Clover, and Annette Mora, and A Class of
Similarly Situated City Employees, Plaintiffs,
v.
The CITY OF ALBUQUERQUE, Ed Adams,
Chief Administration Officer, and Esther
Tenenbaum, Division Manager, in their
individual and official capacities, Defendants.
No. CIV 09-0520 JB/RLP.
|
Feb. 9, 2010.
Attorneys and Law Firms
Paul Livingston, Placitas, NM, for Plaintiffs.
Robert M. White, City Attorney, Michael I. Garcia, City
of Albuquerque Legal Department, City of Albuquerque,
Albuquerque, NM, and Edward W. Bergmann, Seyfarth
Shaw, LLP, Chicago, IL, for Defendants.

prosecuting this motion. Because the Court finds that the
Plaintiffs have requested relevant information, and because
the Court finds that the requests are not vague, ambiguous,
overbroad, or unduly burdensome, the Court will grant the
motion to compel as to Interrogatories Nos. 1, 2, 3, 5, 6, 7, 9,
11, 12, 13, 14, 15, and 16, and as to Requests for Production
Nos. 1-5. The Court will deny the motion to compel as to
Interrogatory No. 4 because the Defendants have already
provided a satisfactory answer. The Court will also award
the Plaintiff a portion of the fees incurred in preparing and
prosecuting the motion to compel.

FACTUAL BACKGROUND
The Plaintiffs were permanent, full-time employees of
the City of Albuquerque's 311 Citizen Contact Center
(“311-CCC”) who were terminated from their positions
without notice, hearings, or reasons for their terminations.
See Motion at 1. The Plaintiff contends that the City
of Albuquerque considered the 311-CCC operators and
supervisors as unclassified employees who are not entitled
to notice, hearings, or reasons for termination. See
Complaint of Violations of Statutory and Constitutional
Law ¶¶ 9, 34 at 3, 9, filed May 27, 2009 (Doc. 1-2).
The Plaintiffs have brought this action against the City
of Albuquerque, Adams, and Tenebaum alleging claims
for breach of contract, due-process and equal-protection
violations, wrongful termination, Family and Medical Leave
Act violations, and Fair Labor Standards Act violations. See
Complaint ¶¶ 27-47, at 7-11.

MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.
*1 THIS MATTER comes before the Court on the
Plaintiffs' Motion and Memorandum to Compel Discovery
and for Sanctions, filed December 1, 2009 (Doc. 23). The
Court held a hearing on January 20, 2010. The primary issues
are: (i) whether the Court should compel Defendants Ed
Adams, Esther Tenenbaum, and the City of Albuquerque
to provide the Plaintiffs with supplemental answers to
Interrogatories Nos. 1, 2, 3, 4, 5, 6, 7, 9, 11, 12, 13, 14, 15,
and 16; (ii) whether the Court should compel the Defendants
to provide supplemental responses to the Plaintiffs' Requests
for Production of Documents; and (iii) whether the Court
should award sanctions to the Plaintiffs in the amount of
their attorney's time and fees expended in presenting and

PROCEDURAL BACKGROUND
On October 3, 2009, the Plaintiffs' counsel delivered to the
Defendants' counsel a set of interrogatories and requests
for production. See Motion at 1. The Defendants' responses
were mailed and electronically-mailed to Plaintiffs' counsel
on November 10, 2009. See Motion at 2. The Defendants
responded with general objections to all the Plaintiffs'
interrogatories, asserting privilege, that the interrogatories
are vague, ambiguous, unduly burdensome, and/or not
reasonably calculated to lead to the discovery of admissible
evidence, that the Defendants do not have the documents in
their custody or control, and that a comprehensive search of
the Defendants' electronically stored information would be
too burdensome. See Defendants' Answers to Plaintiffs' Class
Action Interrogatories at 1-2, filed December 1, 2009 (Doc.

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23-2). On November 19, 2009, the parties held a telephone
conference to address the discovery requests and to resolve
their disputes. See Motion at 2. The Defendants agreed
to supplement their responses but refused to withdraw the
general objections. See Motion at 2; Defendants' Opposition
to Plaintiffs' Motion to Compel Discovery and for Sanctions
at 2, filed December 15, 2009 (Doc. 29). Supplementation did
not occur before the Plaintiffs filed their motion to compel on
December 1, 2009.
*2 The day after the Plaintiffs filed their motion to compel,
the Defendants provided the Plaintiffs with a supplemental
response to the interrogatories, which waived all of the
general objections in the original answer, except the objection
based on privilege, see Defendants' Supplemental Answers to
Plaintiffs' Class Action Interrogatories at 1, filed December
15, 2009 (Doc. 29-2), and a supplemental response to
the requests for production, which waived the same nonprivilege general objections, see Defendants' Supplemental
Response to Plaintiffs' Class Action Requests for Production
of Documents at 2, filed December 15, 2009 (Doc. 29-3). In
the Defendants' response to this motion, they also assert that,
in addition to their agreement to supplement, the Plaintiffs
also agreed to revise some of the interrogatories and that
the Plaintiffs have not done so. See Response at 2. The
Defendants's counsel sent an electronic-mail message to
the Plaintiffs' counsel on December 8, 2009, stating: “We
should also discuss where we are at relative to the motion
to compel following our supplemental responses which we
had advised you would be delayed.” Response Exhibit C
at 2, filed December 15, 2009 (Doc. 29-4). At the time of
the Defendants' response to this motion, the Plaintiffs had
not responded to the electronic-mail message. See Response
at 3. On December 11, 2009, the Defendants made another
supplemental production of documents to the Plaintiffs. See
Response Exhibit D (Doc. 29-5). The Defendants argue that
the Plaintiffs' motion to compel was premature, because
it was filed without giving the Defendants sufficient time
to provide supplemental responses. See Response at 3. 1
The Defendants also argue that sanctions are inappropriate
because the Plaintiffs filed the motion to compel prematurely.
See Motion at 29.
In their reply, the Plaintiffs contend that they timely submitted
their motion to compel and that, although the Defendants
submitted supplemental responses, those responses “added
little or nothing to their initial insubstantial content.”
Plaintiffs' Reply to Defendants' Opposition to Motion to
Compel Discovery and for Sanctions at 1-2, filed January 8,

2010 (Doc. 31). According to the Plaintiffs, they did not know
the Defendants had withdrawn their general objections until
December 15, 2009. See Reply at 6. 2

ANALYSIS
The Plaintiffs have moved the Court to compel the
Defendants to respond to their interrogatories and to their
requests for production. The Defendants have asserted
objections, stated that they will produce a supplement but
have not, and argue that there has not been enough time to
be responsive. The Court believes that the Defendants have
had sufficient time to produce answers and some production
to the Plaintiffs, and will therefore order the Defendants to
respond as set forth in this opinion. The Court will also award
the Plaintiffs a portion of the fees incurred.

I. THE PARTIES MUST ENTER INTO A PROTECTIVE
ORDER.
*3 The Defendants have objected that some of the
information sought in the Plaintiffs' discovery requests is
private information. The parties have not yet entered or
filed a Confidentiality Order with the Court. The Court,
therefore, orders that the parties must negotiate and enter
into a Confidentiality Order within ten days of this Order.
If the parties cannot reach an agreement on the terms of
the Confidentiality Order, the parties may seek assistance
from the Court by submitting competing forms, identifying
precisely and clearly what is in dispute. 3

II. THE COURT OVERRULES THE DEFENDANTS'
OBJECTIONS TO THE PLAINTIFFS'
INTERROGATORIES AND REQUESTS FOR
PRODUCTION, AND ORDERS SIGNED
VERIFICATIONS.
In their supplemental answers, the Defendants state
“Defendants withdraw the General Objections contained in
their November 10, 2009 Answers, except that they do
not withdraw General Objection No. 1 as to privilege.”
Defendants' Supplemental Answers to Plaintiffs' Class Action
Interrogatories at 1; Defendants' Supplemental Responses
to Plaintiffs' Class Action Requests for Production of
Documents at 1. In reply, the Plaintiffs argue that it is
unclear whether the Defendants withdrew only their general
objections, asserted in the introductory section of their

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original answers, or whether all objections were withdrawn.
See Reply at 6.
To the extent that any objections asserting that the
Interrogatories or Requests for Production are vague,
ambiguous, overbroad, or unduly burdensome were not
withdrawn by the Defendants in their supplemental answers,
the Court overrules those objections. The Court finds that the
Plaintiffs' requests are narrowly tailored to the issues in this
case and are sufficiently clear to permit the Defendants to
respond appropriately.
The Defendants retained an objection to privilege. The Court
orders that, to the extent that the Defendants can answer the
Plaintiffs' interrogatories and produce documents responsive
to the requests for production without violating attorneyclient privilege or the work-product-doctrine, the Defendants
must do so. If there are documents that are responsive to the
Plaintiffs' requests for production, the Defendants must create
a privilege log in which they describe the documents, any
persons identified in the documents, the relevant dates, the
relevant Bates-numbers, and the privilege invoked.
The Court also orders that the supplemental answers to
the Plaintiffs' interrogatories and requests for production,
which the Court will order the Defendants to produce in this
opinion, must be accompanied by a signed verification by the
Defendants, representing that the answers were given by a
representative of the Defendants and were under oath.

III. THE COURT WILL COMPEL THE DEFENDANTS
TO PRODUCE SUPPLEMENTAL ANSWERS TO
INTERROGATORIES NOS. 1, 2, 3, 5, 6, 7, 9, 11, 12, 13,
14, 15, AND 16.
The Plaintiffs urge the Court to compel the Defendants to
respond fully to their interrogatories. The Court has reviewed
the supplemental responses that the Defendants provided
to the Plaintiffs' interrogatories. The Court finds that the
Defendants have not sufficiently responded to many of the
interrogatories that the Plaintiffs contend are in dispute.
The Court, therefore, will require the Defendants to provide
supplemental answers, under oath, to Interrogatories Nos. 1,
2, 3, 5, 6, 7, 9, 11, 12, 13, 14, 15, and 16 within ten days of
this Order.

A. INTERROGATORIES NO. 1 AND NO. 2.
*4 Interrogatory No. 1 requests the identity of all terminated
311-CCC employees between 2004 and the present, the dates

of termination, and the reasons for termination. Interrogatory
No. 2 requests the addresses and telephone numbers of the
individuals identified in Interrogatory No. 1. The original
answer to Interrogatory No. 1 provided by the Defendants
states: “Attached hereto is a list of employees involuntarily
terminated from the 311 Citizen Contact Center from its
inception to the present with the name and address of the
person, the date of termination, and reason for termination.”
Defendants' Answer to Plaintiffs' Class Action Interrogatories
at 3, filed December 1, 2009 (Doc. 23-2). The chart attached
contains names, employment status (terminated or resigned),
the hire date, and the last day of employment. See Doc. 23-3
at 1. A second attachment lists stated reasons for termination
of employment with three different entries: (i) services no
longer needed; (ii) unknown; and (iii) N/A. See Doc. 23-3 at
2. In the Defendants' supplemental answer, the Defendants
provided one additional name. In the original answer to
Interrogatory No. 2, the Defendants objected to providing
the telephone numbers based on privacy. In the supplemental
answer, the Defendants stated that they would provide a list
of telephone numbers, subject to a protective order, only if
“counsel for Plaintiffs cannot obtain [the telephone numbers]
through other means after a reasonable attempt to do so.” See
Supplemental Answers at 3.
At the hearing, Paul Livingston, the Plaintiffs' attorney,
stated that the Defendants still have not provided the
addresses requested in Interrogatory No. 1. Mr. Livingston
also expressed dissatisfaction with one of the reasons given
for termination-“services no longer needed.” Mr. Livingston
stated that he learned from a deposition with Tenenbaum that
there are various reasons for termination, which include a
progressive discipline scheme and terminations for specific
given reasons. Mr. Livingston argued, therefore, that the
answers to Interrogatory No. 1 do not reflect the knowledge
of the Defendants regarding the reasons for termination.
Edward W. Bergmann, the Defendants' counsel, stated that
his co-counsel, Michael I. Garcia, provided the addresses
to the Plaintiffs via an electronic-mail transmission sent on
November 19, 2009, which included an attached chart which
included addresses and reasons. Mr. Bergmann also stated
that the reason that 311-CCC gives to terminated employees
is “your services are no longer needed” and therefore the
response the Defendants gave to the request for the reason for
termination was sufficient. Mr. Bergmann also stated that Mr.
Livingston made representations to him during the November
19, 2009 telephonic conference that Mr. Livingston would
find the telephone numbers through an internet search or

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telephone book. Mr. Livingston responded that the list that he
was electronically mailed does not contain addresses.
*5 The Court orders that the Defendants provide an
amended answer to Interrogatory No. 1 which in the answer,
and not in an attachment or chart, provides the addresses
of the identified terminated employees and the reasons for
termination. The amended answer must be under oath and
must state the information in the Defendants' knowledge.
The Court also orders that the Defendants must provide a
supplemental response to Interrogatory No. 2, which gives the
telephone numbers of the terminated employees identified in
Interrogatory No. 1. The Court notes that the Defendants may
cover this information under the Confidentiality Order, which
the Court has ordered the parties to put in place.

B. INTERROGATORY NO. 3.
Interrogatory No. 3 seeks the identity of every employee
or former employee of 311-CCC who was told that his or
her “services are no longer needed,” as well as the date
the employee was told this statement and by whom he
or she was told. The Defendants' original answer objected
to Interrogatory No. 3 as vague, ambiguous, overbroad,
and unduly burdensome. In their supplemental answer, the
Defendants stated that no further reason other than “services
no longer needed” or “unknown” is stated in the 311CCC records, and that current management does not have
a present recollection of the reasons for termination given
to those individuals where the reason is listed as unknown.
At the hearing, Mr. Bergmann stated that there may not be
information in Defendants files stating more information. He
also indicated that the Defendants have already provided a
chart showing who was told their services were no longer
needed and who conducted the dismissal. Mr. Livingston
responded that the Defendants have had several months to
determine whether there is information in the files and argued
that the Defendants have still not responded to Interrogatory
No. 3 appropriately. He contends that listing several persons
responsible for dismissal does not answer the question of who
told the terminated employee that his or her services would
no longer be needed.
The Court does not believe that the request is vague,
ambiguous, or overbroad, and therefore overrules those
objections. The Court notes that it appears from the
attachments to the Plaintiffs' motion to compel that the
Defendants provided a chart listing those persons told that
their services were no longer needed, the date of termination,
and by whom. See Doc. 23-3. The Court, however, orders

that the Defendants must provide a supplementation to
Interrogatory No. 3, which takes the information from the
chart and puts it into a responsive answer, stated under
oath, and signed by a representative of the Defendants.
The supplemental answer must also give the date that the
identified employees were told the phrase “your services are
no longer needed,” and identify the person that said it to the
particular terminated employee. If the statement was made
by more than one person, the Defendants may identify all
such individuals. If the Defendants do not know the date or
the person who told the terminated employee that his or her
services were no longer needed, the Defendants must state
that fact, under oath, in the supplemental answer.

C. INTERROGATORIES NO. 5 AND NO. 11.
*6 Interrogatory No. 5 seeks information regarding 311CCC employees terminated because of a disciplinary
infraction. The interrogatory requests a statement of the
infraction and a description of the process, if any, the
employee was afforded before termination. The Defendants'
original answer objected to Interrogatory No. 5 on the
grounds that it was not reasonably calculated to lead to the
discovery of admissible evidence as to unclassified at-will
employees who have no right to any process or hearing. In
the Defendants' supplemental response, they stated: “The City
with investigate the Center personnel files of involuntarily
terminated employees relative to information concerning
performance issues and following that investigation further
supplement this answer as appropriate.” Supplemental
Answers at 5. The Plaintiffs' reply indicated that no further
supplement has been provided. See Reply at 3.
Interrogatory No. 11 requests that the Defendants identify the
person or persons who made the decision to terminate the
City of Albuquerque 311-CCC employees, and requests the
reasons each of the Plaintiffs were terminated, including the
identification of policies, procedures, allegations, and other
factors supporting termination. The Defendants' original
answer objected to Interrogatory No. 11 as not reasonably
calculated to lead to discovery of admissible evidence
because the Plaintiffs were at-will unclassified employees. In
the Defendants' supplemental answer, they responded: “See
Supplemental Answer to Interrogatory No. 5.” At the hearing,
Mr. Bergmann stated that the Defendants are looking into the
request and conceded that some employees were terminated
for disciplinary reasons. Mr. Livingston argues that months
have passed and that the Defendants' lack of response has
become untimely.

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The Court believes that Interrogatories Nos. 5 and 11 seek
relevant information that may lead to admissible evidence,
and therefore overrules the Defendants' initial objections.
The Court orders that the Defendants produce supplemental
answers to Interrogatory No. 5 and Interrogatory No. 11
within ten days of this Order. At that time, the Defendants
must provide the information that they have about the
employees who were terminated because of a disciplinary
violation, and identify those employees to the Plaintiffs.
The Defendants must also identify who terminated the
employees and the reasoning for doing so, as well as any
policies, procedures, allegations, or other factors supporting
the termination decisions. The Defendants may continue to
supplement their response as they continue to investigate.

and (iii) that arrangement is relevant to the issues. The
Court, therefore, overrules the Defendants' objection. The
Court orders the Defendants to provide a supplemental
answer, under oath, identifying any temporary, seasonal,
part-time, or contract employees since 311-CCC's inception
by giving those employees' names, job titles, and dates of
employment with the City. The Court also orders that, if
the identified employee is a City employee, the Defendants
shall disclose that employee's rate of pay. The Court further
orders that, if the identified employee is a contract employee,
the Defendants shall disclose the information that the City
paid to an employment agency. If the Plaintiffs wish to seek
more information regarding the rate the employment agency
paid the contract employees, they may serve third-party
subpoenas or submit an interrogatory to the City requesting
any information it has regarding that information.

D. INTERROGATORY NO. 6.
Interrogatory No. 6 requests identification of all temporary,
seasonal, part-time, or contract employees of 311-CCC since
its inception, including the dates of employment, position, job
title, and last rate of pay. The Defendants' original answer
objected to Interrogatory No. 6 as not reasonably calculated
to lead to discovery of admissible evidence because the case
does not involve employees who were not employed in a
regular capacity. In the Defendants' supplemental response,
they stated: “Occasionally temporary employees are used
to supplement existing staff as needed. The only contract
employees would be agency employees secured through a
contract with the agency. There are no part-time employees
working less than twenty hours a week.” Supplemental
Answer at 6. In their reply, the Plaintiffs argued that
Interrogatory No. 6 is relevant because temporary employees
may have replaced terminated permanent employees, even
though the permanent employees were informed that their
services were no longer needed. See Reply at 4. At the
hearing, Mr. Bergmann stated that, through deposition
testimony, the Plaintiffs learned that “your services are no
longer needed” means that a particular employee's services
were no longer needed, and not that the employee was
being laid off. He also stated that the Defendants could list
the employees for whom the City of Albuquerque contracts
through an employment agency but that the Defendants have
no knowledge what the agency pays those employees.

E. INTERROGATORY NO. 7 AND NO. 9.
Interrogatory No. 7 seeks any and all discussions or
considerations concerning why 311-CCC employees are
considered unclassified, including participants in the
discussions, the dates of discussions, and the forums or
means of communication. The Defendants originally objected
to the interrogatory as vague, ambiguous, overbroad, and
unduly burdensome-objections which the Court overrules.
Interrogatory No. 9 seeks similar information-any and all
documents and communications, including electronic mail
messages, concerning classified and unclassified employee
status at 311-CCC since March 2004. In addition to objecting
to Interrogatory No. 9 as vague, ambiguous, overbroad, and
unduly burdensome-objections which the Court overrules-the
Defendants also cited the City of Albuquerque's Merit System
Ordinance. In their supplemental response to Interrogatory
No. 7, the Defendants responded: “The City is investigating
the existence of written documents relative to the reasons
for Center employees being unclassified and will supplement
this answer, as appropriate, if responsive documents are
found.” Supplemental Answers at 6. For Interrogatory No.
9, the Defendants answered: “See Supplemental Answer
to Interrogatory No. 7.” Supplemental Answers at 6.
In their reply, the Plaintiffs stated that no substantive
supplementation has yet been provided. See Reply at 4.

*7 The Court believes: (i) that the interpretation of “your
services are no longer needed” is still in play, regardless
of what interpretation a deponent may have provided; (ii)
that the information sought in Interrogatory No. 6 is relevant
to the issue whether the City of Albuquerque replaced
terminated employees with temporary or contract employees;

At the hearing, Mr. Livingston challenged the Defendants'
approach to these Interrogatories: they look for documents,
and if they do not find any responsive, they do not answer the
interrogatory. Mr. Livingston argues that the Defendants still
have to provide an answer, even if the answer is that no such
discussions or communications took place. Mr. Bergmann

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represented that the Defendants have not yet found any
written evidence of what discussions were held regarding
311-CCC employee classification. He also represented that
the people who would have been involved no longer work
for the City of Albuquerque, and because of the turnover
in employees, he would be relying on guessing who was
involved in the relevant discussions over five years ago.
He argues that interrogatories are an inappropriate discovery
vehicle for this information and that depositions would be
more appropriate.
*8 The Court believes that Interrogatories Nos. 7 and 9
seek information which is relevant and which is appropriate
for Interrogatories. The Plaintiffs have a right to choose
which discovery vehicle they wish to use, and they have
interrogatories available to them. Under rule 33 of the Federal
Rules of Civil Procedure, interrogatories may be used in
conjunction with other methods of discovery. The methods
of discovery are complementary, rather than alternative or
exclusive, may be used singly or in conjunction with each
other, and may be used in any sequence. See Res. Assocs.
Grant Writing & Eval. Servs., LLC v. Maberry, No. CIV
08-0552, 2008 U.S. Dist. LEXIS 108662, at *3, 2008 WL
5978896 (D.N.M. Dec. 8, 2008)(“The Federal Rules of Civil
Procedure do not set a priority for discovery ... and while
it often makes good sense to have a witness' documents
before he or she is deposed, there is nothing in the rules
that requires a document production before the deposition
begins.”); Fed.R.Civ.P. 26(d)(“Unless, on motion, the court
orders otherwise for the parties' and witness' conveniences
and in the interests of justice: (A) methods of discovery may
be used in any sequence; and (B) discovery by one party
does not require any other party to delay its discovery.”); 7
C. Wilkenupdates & R. Bloom, Moore's Federal PracticeCivil § 33.04, at 15-16 (3d ed.2010). The Court orders that
the Defendants must provide the Plaintiffs with an answer to
these interrogatories within ten days. The Defendants must
make a reasonable effort to answer these interrogatories,
including talking to employees and looking at documents,
and must provide any and all information it has about the
Defendants' knowledge of the discussions and considerations
at issue. The Defendants' answer must disclose those involved
in the discussions, the dates of the discussions, the method
of communication, and must also describe the discussions.
The Court will interpret Interrogatory No. 9 as not requesting
every document that just talks about classified or unclassified
employees. The Court requires, however, that the City must
produce those documents, electronic-mail messages, and any
other nature of communication that are in document form,

which discuss why someone is considered a classified or
unclassified employee, how they became a classified or
unclassified employee, and the reasons that they are classified
or unclassified. The Defendants must produce documents
and identify the Bates-stamps on the documents that are
responsive in the answer. The Defendants may wish to
approach the Plaintiffs about depositions, but the Court will
not order depositions at this time.

G. INTERROGATORY NO. 12.
Interrogatory No. 12 seeks identification of all 311-CCC
employees or former-employees who were suspended,
demoted, transferred, or terminated for the same or similar
reasons as those given for the Plaintiffs' terminations. The
interrogatory requests the name, address, telephone number,
dates, and category of employment action for each employee
or former-employee. In response, the Defendants stated: “See
Answers to Interrogatories No. 1, No. 5, and No. 10.” The
Defendants did not supply a supplemental response. The
Plaintiffs' motion to compel argues that the Court should
require the Defendants to answer the question more fully and
completely. At the hearing, Mr. Livingston stated that the
Defendants had informed him that the City of Albuquerque
had not suspended, demoted, or transferred any employees.
Mr. Bergmann stated, to the contrary, that the Defendants had
already provided a list of terminated employees in an answer
to another interrogatory.
*9 Responses to interrogatories must be self-contained
within each interrogatory answer and the Court finds that the
Plaintiffs are entitled to a response specific to Interrogatory
No. 12. The Court, therefore, orders that the Defendants must
provide a supplemental answer to the Plaintiffs which states
the name, address, telephone number, and dates and types of
employment action of any employees or former-employees
within the scope of Interrogatory No. 12. The Defendants
must submit this information as an answer, and not as a
list or a chart attached separately. The Defendants must not
merely refer to the answer or supplemental answer to another
interrogatory.

H. INTERROGATORY NO. 13.
Interrogatory No. 13 requests the Defendants to state
the problems and policies the 311-CCC management
encountered and applied with respect to leaves of absence
and employee discipline, and to identify participants in any
discussions, reports, or communications along with the dates
on which they occurred. The Defendants originally objected

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that these interrogatories are not reasonably calculated to lead
to the discovery of admissible evidence. The Defendants'
supplemental response states: “Defendants will supplement
their Answer after Plaintiffs serve a revised Interrogatory,
as agreed by Counsel.” Supplemental Answers at 7. In their
reply, the Plaintiffs represented that the Defendants have not
supplemented their answer. At the hearing, Mr. Bergmann
expressed concerns about confidential medical information
having to be disclosed. Mr. Livingston responded that the
request does not seek medical information.
The Court believes that Interrogatory No. 13 requests
evidence which may be relevant to the case and overrules the
Defendants' objection. The Court orders that the Defendants
must provide a supplemental response to Interrogatory No.
13. As far as medical information may be implicated, the
Court believes that the Defendants can draft their answer in
such a way that it is both responsive and avoids implicating
confidential medical issues. If it becomes necessary to discuss
confidential medical issues to be completely accurate and
responsive to the interrogatory, that information can go under
the Confidentiality Order which the Court has ordered the
parties to put into place.

I. INTERROGATORIES NOS. 14, 15, AND 16.
Interrogatory No. 14 asks the Defendants to discuss and
describe in as much detail as possible the reasons for
making and keeping 311-CCC operators and supervisors
unclassified and the benefits and costs of having those
employees work in unclassified status. Interrogatory No. 15
seeks the same information regarding classified employees.
Interrogatory No. 16 asks for any reasons, requirements,
or justifications preventing or precluding consideration
of 311-CCC employees as classified employees. The
Defendants originally responded that these interrogatories
were overbroad, unduly burdensome, vague, and ambiguous.
The Court overrules these objections, as the Court believes
the information sought is reasonably and clearly requested,
and is not unduly burdensome on the Defendants. In response
to Interrogatory No. 14, the Defendants also responded:
“Subject to and without waiving these objections, the
Defendants state that unclassified status permits greater
flexibility as to employees' terms and conditions of
employment to better serve the citizens of Albuquerque.” In
response to Interrogatories Nos. 15 and 16, the Defendants
stated: “See Answer to Interrogatory No. 14.” In the
Defendants' supplement answer to Interrogatory No. 14, the
Defendants stated: “Defendants will supplement their Answer
after Plaintiffs serve a revised Interrogatory, as agreed by

Counsel.” The Plaintiffs did not revise the interrogatory,
and the Defendants did not provide supplementation. In the
Defendants' supplemental answer to Interrogatory No. 15, the
Defendants stated: “Defendants are unaware of any formal
study of the costs and benefits of having Center employees
as classified.” They did not provide a supplemental answer to
Interrogatory No. 16. At the hearing, Mr. Bergmann argued
that he is not sure what more Mr. Livingston wants other than
the supplemental response that he has been given.
*10 On Interrogatory No. 14, if the supplemental answer
that “unclassified status permits greater flexibility as to
employees' terms and conditions of employment to better
serve the citizens of Albuquerque” is the sole reason for
unclassified status, then the Defendants will be held solely to
that explanation. If the Defendants do not wish to supplement
this answer further, the Court will not compel them to change
their answer; however, the Defendants will be bound by
their answer and will not be permitted to expand or expound
upon this explanation later at trial. The Defendants will
be permitted only to give “flexibility” as its justification
for classifying an employee as unclassified. If they do not
supplement their interrogatory response, the Court will not
permit the Defendant to explain flexibility to the jury or to
go into any further depth. If the Defendants wish to elaborate
on what it means by flexibility and what it means to the
community, they need to put it in their supplemental response
to the Plaintiffs. On Interrogatories No. 15 and No. 16, the
Court orders the Defendants to state an independent answer
to each interrogatory and not rely on a referral back to
the supplemental answer to Interrogatory 14 to satisfy its
obligation to respond.

IV. THE COURT WILL DENY THE MOTION
TO COMPEL A SUPPLEMENTAL ANSWER TO
INTERROGATORY NO. 4.
Interrogatory No. 4 asks the Defendants to identify every
311-CCC employee since March 2004 who was designated
exempt from the provisions of the Fair Labor Standards Act,
29 U.S.C. § 201 through § 219 (“FLSA”), and for those
identified employees, to also give the position the employee
held, the basis of the exemption, the date of hire, and the
last date of employment with the City of Albuquerque. The
Defendants' original answer objected that Interrogatory No. 4
is overbroad and unduly burdensome, and seeks information
not reasonably calculated to lead to discovery of admissible
evidence. The Defendants also stated that they attached a
list of supervisors exempt under § 13(a)(1) of the FSLA and

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Gonzales v. City of Albuquerque, Not Reported in F.Supp.2d (2010)
2010 WL 553308

their dates of employment. The Plaintiffs' motion to compel
argues that the Defendants failed to provide the reasons for
the claimed exemptions in the attached list. In the Defendants'
supplemental answer, they state that the exemption applicable
is the executive and/or administrative exemption.
In the hearing, Mr. Livingston expressed that Interrogatory
No. 4 seeks the reasons why the employees that the
Defendants identify qualify for the exemption the Defendants
are asserting, and not merely a statement of the exemption
category. Mr. Bergmann stated that the Defendants could
provide more explanation of the exemptions, but contended
that the interrogatory seeks a legal conclusion, legal analysis,
and argument. Mr. Livingston responded that the Plaintiffs
are not seeking the legal explanation, but rather the facts that
underlie the conclusion that certain employees are considered
to be under the executive and/or administrative exemptions.
*11 The Court believes that the Plaintiffs are now
seeking information which goes beyond the information
requested in Interrogatory No. 4. The Defendants identified
exempt individuals, positions, and dates of employment.
The Defendants also supplemented their response with the
categorical basis of the exemptions. The Court finds that
the information provided is responsive to the request and
therefore denies the Plaintiffs' motion to compel an additional
response to Interrogatory No. 4. If the Plaintiffs wish to ask an
additional interrogatory specifically seeking the factual basis
for the categorical designations, the Plaintiffs are free to do so,
and if the Defendants do not produce a responsive answer, the
Plaintiffs may move to compel without this denial prejudicing
that effort.

V. THE OBJECTIONS TO THE PLAINTIFFS'
REQUESTS FOR PRODUCTION ARE OVERRULED,
AND THE DEFENDANTS MUST ENSURE THAT
THEIR RESPONSES ARE COMPLETE.
The Plaintiffs served the Defendants with five requests
for production. In the Defendants' original responses, they
incorporated by reference the general objections they had
asserted in their original answers to the interrogatories.
The Defendants withdrew these general objections in their
supplemental response. To the extent that the Defendants
also asserted individual objections to the five requests for
production, the Court overrules those objections. The Court
also compels the Defendants to review their responses to the
requests for production and ensure that they have produced
all documents that fall within the scope of the requests.

If there are more responsive documents, the Defendants
are compelled to make a supplemental production to the
Plaintiffs.

VI. THE PLAINTIFFS' MOTION TO COMPEL WAS
NOT PREMATURE, AND THE COURT WILL AWARD
SOME FEES TO THE PLAINTIFFS.
The Plaintiffs have also requested that the Court impose
sanctions on the Defendants in the amount of the Plaintiffs'
attorney's time, effort, and fees expended in presenting and
prosecuting the motion to compel. The Defendants argue
that sanctions are not appropriate because the motion was
premature and because the Plaintiffs failed to complete the
process of conferring with the Defendants' counsel in good
faith before bringing the motion.
The Defendants contend that the Plaintiffs' motion to compel
was premature because the parties had agreed that the
Defendants would provide supplemental responses. See
Response at 2. The Defendants also conceded, however,
that they told the Plaintiffs during the November 19, 2009
telephone conference that they would not, at that time,
withdraw their general objections to the interrogatories and
requests for production. See Response at 2. Two weeks passed
without a response produced by the Defendants. Given the
Defendants' indication to the Plaintiffs that they would not
withdraw their objections, and the amount of time that passed
without supplementation, the Court finds that the Plaintiffs'
motion to compel was not premature.
*12 Moreover, upon review of the Defendants'
supplemental answers, the Court finds that many of the
supplemental answers were not responsive answers, but rather
stated that the Defendants “will supplement this answer, as
appropriate, if responsive documents are found.” See, e.g.,
Supplemental Answers to Interrogatories Nos. 5, 7, 9, and 11.
The original responses were objections. Thus, at the time of
the hearing, the Defendants had still not provided answers to
the Plaintiffs.
The imposition of sanctions under rule 37 of the Federal Rules
of Civil Procedure is within the Court's sound discretion.
See Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th
Cir.2002) Rule 37(a) provides that the court may require
the party “whose conduct necessitated the motion” to pay
the moving party's reasonable expenses and fees. These fees
may be awarded even if the non-moving party disclosed the
requested discovery after the motion to compel was filed. See

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Gonzales v. City of Albuquerque, Not Reported in F.Supp.2d (2010)
2010 WL 553308

Fed.R.Civ.P. 37(a)(5)(A). Rule 37(a)(5)(C) provides that if
the motion to compel is granted in part and denied in part,
the Court may “apportion the reasonable expenses for the
motion.” Fed.R.Civ.P. 37(a)(5)(C).
Although the Defendants' counsel argues that a good-faith
effort was made on its supplemental responses and in its
efforts to work with the Plaintiffs' counsel, the Court believes
that, given that the Defendants represented during the parties
telephone discussions that they would not withdraw their
general objections, the Plaintiffs made the appropriate and
necessary decision to file a motion to compel. Further, the
supplemental answers were largely unresponsive, which is
reflected in the Court's granting of the motion to compel on
all the contested interrogatories and requests for production
except for one. Because the Defendants continued to draw out
the discovery process with promises to answer if documents
were found, the Court believes that a shift of the Plaintiffs'
attorney's fees to the Defendants is appropriate. Because to
a limited extent, however, the Court believes the Defendants
were cooperative and responsive, and because the Plaintiffs

did not prevail on all aspects of the motion to compel, the
Court will not shift all the Plaintiffs' attorney's fees to the
Defendants. The Court, therefore, orders the Defendants to
pay to the Plaintiffs ninety-five percent of the attorney's fees
that the Plaintiffs incurred in drafting the motion to compel
and reply brief, and ninety-five percent of the fees incurred in
arguing the motion before the Court.
IT IS ORDERED that the Plaintiffs' Motion and
Memorandum to Compel Discovery and for Sanctions is
granted in part and denied in part. The Court grants the motion
to compel as to Interrogatories Nos. 1, 2, 3, 5, 6, 7, 9, 11, 12,
13, 14, 15, and 16, and as to Requests for Production Nos. 1-5.
The Court denies the motion to compel as to Interrogatory No.
4. The Court also awards the Plaintiff ninety-five percent of
the attorney's fees incurred in preparing and prosecuting the
motion to compel. The motion is otherwise denied.

All Citations
Not Reported in F.Supp.2d, 2010 WL 553308

Footnotes

1
2
3

The Defendants contend that the two weeks between the parties' telephone conference and the Plaintiffs' filing of the
motion to compel was an insufficient amount of time because of the Thanksgiving holiday and because of the unavailability
of certain City of Albuquerque personnel. See Response at 3.
The Court notes that this contention conflicts with the Defendants' representation that they submitted their supplemental
answers, which withdrew the objections, to the Plaintiffs on December 2, 2009. See Response at 2-3.
The Court refers the parties to the form of confidentiality order in the Manual for Complex Litigation at 752 (4th ed.2004)
as a possible form.

End of Document

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© 2016 Thomson Reuters. No claim to original U.S. Government Works.

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