Ellerton et al v. Sefton Resources Inc., et al

Filing 109

RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 12/29/16. The Court recommends that 84 MOTION to Dismiss filed by John J. Ellerton be DENIED; that 93 MOTION for Summary Judgment filed by S efton Resources Inc. be GRANTED; 75 MOTION for Sanctions filed by Sefton Resources Inc. be DENIED AS MOOT, and that the court DISMISS Mr. Ellerton's three remaining claims WITH PREJUDICE. Additionally, the Court ORDERS that 89 MOTION for Sanctions Under FRCP 37(d) filed by Sefton Resources Inc. is GRANTED IN PART AND DENIED IN PART. The Clerk of the Court is directed to mail Mr. Ellerton a copy of this Recommendation and Order at his address of record: John J. Ellerton, 2724 Puuhoolai Street, Kihei Maui, Hawaii 96753. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4, # 5 Attachment 5) (nmarb, )

Bat v. A.G. Edwards & Sons, Inc., Not Reported in F.Supp.2d (2005)
2005 WL 6776838

2005 WL 6776838
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Judy Ann BAT, Plaintiff,
v.
A.G. EDWARDS & SONS, INC., Defendant.
Civil Action No. 04–cv–02225–REB–BNB.
|
Nov. 18, 2005.
Attorneys and Law Firms
David C. Feola, Law Office of David C. Feola, P.C.,
Evergreen, CO, for Plaintiff.
Mary Hurley Stuart, Christopher Larry Ottele, Husch
Blackwell Sanders, LLP, Denver, CO, for Defendant.

ORDER
BOYD N. BOLAND, United States Magistrate Judge.
*1 This matter is before me on the Plaintiff's Motion to
Compel Re: First Set of Written Discovery (the “Motion to
Compel”), filed August 16, 2005. The Motion to Compel
is DENIED in its entirety.
Interrogatory No. 1 states:
Attached as Exhibit A is a
compilation of documents with
handwriting on each numbered
page. Identify whose handwriting
is on each page (if there is more
than one person's handwriting on
any page, identify with specificity
who wrote what on each page),
and unless the handwriting is
plainly legible, identify what the
handwriting states or says.
The defendant responded, objecting to the request insofar
as some of the documents lacked Bates numbers, but
responding by identifying the handwriting on 34 pages.
The defendant did not, however, “identify what the

handwriting states or says.” The plaintiff complains that
the response is inadequate because it “did not identify the
substance of the handwriting, a great deal of which is not
legible.” Motion to Compel, at p. 3.
I have not been provided with a copy of the “compilation
of documents” which was attached as Exhibit A to the
discovery request and which is the subject of Interrogatory
No. 1. Accordingly, I cannot say which documents, if
any, contain handwriting which is not “plainly legible.”
Local rule of practice 37.1, D.C.COLO.LCivR, requires
that discovery motions “shall set forth verbatim the
interrogatory, request, and response to which the motion
is directed .” By not including the documents which
composed Exhibit A, the plaintiff has failed to comply
with this requirement.
In addition, local rule of practice 7.1A imposes the
following requirement:
The court will not consider any
motion, other than a motion under
Fed.R.Civ.P. 12 or 56, unless
counsel for the moving party or a pro
se party, before filing the motion,
has conferred or made reasonable,
good-faith efforts to confer with
opposing counsel or a pro se party
to resolve the disputed matter. The
moving party shall state in the
motion, or in a certificate attached
to the motion, the specific efforts to
comply with this rule.
I previously have held, in Hoelzel v. First Select Corp.,
214 F.R.D. 634 (D.Colo.2003), that the duty to confer
imposed by Rule 7.1A “serves a particularly important
function in connection with discovery disputes because
the parties, through negotiation, frequently are able to
narrow the discovery requests in a way which eliminates
the need for judicial intervention.” Id. at 635. To
satisfy the requirements of Rule 7.1A, the parties must
confer, preferably through face-to-face meetings, and
must compare views and attempt to reach an agreement,
including by compromise if appropriate. Id. at 636.
In this case, the plaintiff's certificate of compliance with
Rule 7.1A states:

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Ms. Bat immediately notified
defense counsel of the deficiencies in
each of these objections and answers
to the interrogatories, document
requests and requests for admission.
In response defense counsel
provided limited information in
a few areas, but refused to
rectify the problems set forth
above, and proceeded to oddly
argue that undersigned somehow
failed to confer with her. To
the contrary, AGE has taken the
same seriously flawed positions
throughout discovery in this matter,
such that no amount of arguing
would persuade defense counsel
otherwise.
*2 With respect to Interrogatory No. 1, the plaintiff's
attempt to confer prior to filing the Motion to Compel is
limited to the general statement that the defendant “failed
to have the persons who wrote these documents identify
any of the illegible handwriting.” Defendant's Response
to Plaintiff's Motion to Compel (the “Response”), Exh.A
at p.l. There is no indication that the plaintiff brought
to the attention of the defendant the specific handwritten
sections she could not read and requested that defendant
provide an interpretation. That is the kind of conference
Rule 7.1 A requires, and it did not occur here.
The plaintiff's attempt to confer is limited to a single
demand letter. The substance of the letter includes,
for example, with respect to Admission Request No.
11: “Nonesense. Your objections are utterly frivolous.”
Response, Exh.A at p. 6. Obviously, this is not an attempt
to confer in good faith.
The letter concludes with the following ultimatum:
While we would prefer to not engage
in constant motions practice arising
from you and your client's failure to
comply with the most fundamental
requirements of discovery, it would
seem that will be necessary. Again,
if we do not obtain you and
your client's compliance on these
deficiencies by close of business

Wednesday [the next day] we will file
a motion to compel requesting that
severe sanctions be imposed by the
Court against you and your client.
Please advise which route you and
your client intend to take.
Id.
The defendant's counsel responded immediately, stating:
I have received your letter of today's
date concerning discovery issues. As
you know, we have a deposition in
this case scheduled for tomorrow.
Accordingly, I will not be able to
respond to your letter by the close
of business tomorrow. If you wish
to discuss the issues concerning the
discovery responses, I have time on
Thursday afternoon when we can
have a telephone conference on these
matters.
Id. at Exh.B.
There is no evidence of any response to this offer to confer
other than an e-mail sent the Saturday before the Motion
to Compel was filed, stating that “[o]n Monday we are
filing the motion to compel as to your objections and your
clients' [sic] answers, or lack thereof, as to Ms. Bat's first
set.”
The plaintiff has flagrantly violated the requirements of
Rule 7.1 A. The Motion to Compel is DENIED with
respect to Interrogatory No. 1.
Interrogatory No. 2 asks the defendant to “[i]dentify all
facts and documents you contend support” its affirmative
defenses. The defendant responded:
A.G. Edwards objects to this
interrogatory because it contains
ten discrete subparts seeking
information about ten discrete
subjects and, thus, will exceed the
allowable rules of interrogatories.
A.G. Edwards further objects to
the request on the grounds that
it seeks legal conclusions and

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work product. Subject to these
objections, A.G. Edwards states that
all of the discovery produced and
future investigation will support its
defenses or, if not, A.G. Edwards
will dismiss such defenses prior to
trial.
*3 Interrogatory No. 2 is overbroad and unduly
burdensome on its face. I adopt the reasoning of the court
in Hilt v. SFC, Inc., 170 F.R.D. 182 (D.Kan.1997), which
addressed the impropriety of interrogatories seeking
“each and every fact supporting” certain allegations:
[Such interrogatories] represent a type of excess which
... has become too common in recent months. The
interrogatories ask not merely for material or principal
facts. They seek “each and every fact” supporting the
allegations of plaintiff, no matter how insignificant or
minor.

***
Whatever may be said for the virtues of discovery
and the liberality of the federal rules, which perhaps
all courts recognize, there comes at some point
a reasonable limit against indiscriminately hurling
interrogatories at every conceivable detail and fact
which may relate to a case.... Indiscriminate use
of blockbuster interrogatories, such as these, do
not comport with the just, speedy, and inexpensive
determination of the action. To require answers for
them would more likely cause delay and unreasonable
expense of time, energy, and perhaps money.
The nature of the federal discovery rules themselves
suggests they are intended to facilitate reasonable
discovery, not unduly burdensome, but selected by
each party to fit the needs of the particular case.
The discovery rules provide no absolute, unharnessed
right to find out every conceivable, relevant fact that
opposing litigants know.... This requires counsel in
any given case to exercise professional judgment and
determine the priorities of discovery.
Id. at pp. 186–87.
The Motion to Compel is DENIED with respect to
Interrogatory No. 2.

Interrogatory No. 4 states:
If you contend that AGE
investigated any of Ms. Bat's
allegations or complaints of gender
discriminatory conduct or of
retaliation identify everyone who
conducted or participated in such
investigation(s), all steps taken
during such alleged investigation(s),
everyone who was interviewed for
such alleged investigation(s), and all
documents created in the course of
such alleged investigation(s).
The defendant answered the interrogatory as follows:
Mr.
Hoenninger
investigated
allegations made to him by
plaintiff in 2003. A.G. Edwards has
previously produced the documents
reflecting his investigation. A.G.
Edwards also investigated plaintiff's
Charge of Discrimination. The
results of that investigation are set
forth in A.G. Edwards Position
Statement and related nonprivileged
documents submitted to the EEOC.
The plaintiff argues that the response is inadequate
because:
AGE merely stated that an
HR executive investigated the
allegations, referred to unidentified
documents,
and
refused
to
even
generally
describe
the
investigations(s), such as even who
was interviewed.
Motion to Compel, at ¶ 4.
The interrogatory response indicates that all nonprivileged documents concerning the investigations have
been produced. There is no allegation that this is not
correct. There is no indication that the plaintiff cannot
reasonably determine which of the documents produced
concern the investigation. There is no indication that
the plaintiff inquired of the defendant what documents
were being referred to and that the defendant refused

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to identify them with greater particularity. There is no
indication that the identity of the people interviewed
cannot be obtained through a review of the documents
evidencing the investigation or the deposition of Mr.
Hoenninger. I find that the response to Interrogatory No.
4 is adequate, and that the plaintiff's objection to the
response is disingenuous.

The defendant objected to the interrogatory as vague,
ambiguous, overbroad, and unduly burdensome. I agree.
This interrogatory is improper for the same reasons
Interrogatory No. 5 is improper.

*4 The Motion to Compel is DENIED with respect to
Interrogatory No. 4.

Interrogatory No. 7 requests the following:

Interrogatory No. 5 asks the defendant to identify “the
alleged factual bases for each factual position taken by
AGE in the ‘Position Statement for A.G. Edwards & Sons,
Inc.’ dated March 19, 2004....” The defendant objected to
the interrogatory, but responded that “the factual bases
are what are set forth in the Position Statement.” The
plaintiff fails to provide any argument as to why the
answer is insufficient.
This is another example of an improper blockbuster
interrogatory, as were disapproved in Hilt, 170 F.R.D.
at 187. In addition, “interrogatories should not require
the answering party to provide a narrative account of its
case.” Hiskett v. Wal–Mart Stores, Inc., 180 F.R.D. 403,
404 (D.Kan.1998).
The question is equivalent to asking an eye witness to
a traffic accident to explain the factual basis for his
statement that the traffic signal was red. In general, no
further explanation is necessary or appropriate. If there is
a particular factual assertion which requires explanation,
a party may properly make a specific inquiry as to its basis,
if any further basis exists.
To generally require a party to explain its factual
assertions is nothing more than make-work. The Motion
to Compel is DENIED with respect to Interrogatory No.
5.
Interrogatory No. 6 asks:
If you contend that the factual
assertions and positions taken by
AGE in the second paragraph of the
Position Statement are true, identify
all facts and documents you claim
support your contention.

The Motion to Compel is DENIED with respect to
Interrogatory No. 6.

Identify all documents reflecting or
memorializing any and all studies,
analyses or other methodologies
used by AGE from 1998 through
the present to determine whether
females are underrepresented in any
position or level of the company at
AGE in the Western Region.
The defendant refused to answer, asserting the following
objections:
A.G. Edwards objects to this
interrogatory on the grounds that it
is overly broad in time and scope,
unduly burdensome, seeks irrelevant
documents, is not reasonably
calculated to lead to the discovery
of admissible evidence, and does not
define the term “underrepresented.”
Plaintiff asserts a single claim of
retaliation; documents related to
gender issues are not relevant.
The plaintiff claims that the requested information
is relevant and necessary to her case because “Ms.
Bat complained of widespread gender-discriminatory
practices in this region of AGE's operations, and as
a result, was terminated. As such she is entitled to
information and documents which tend to support the
fact that her complaints were subjectively and objectively
made in good faith.” Motion to Compel, at ¶ 7.
*5 In a previous order entered in this case on August 22,
2005, I addressed a similar issue in connection with the
designation of a Rule 30(b)(6) witness. As stated there:
A Title VII plaintiff alleging a retaliatory discharge
must make a prima facie showing that (1) she
engaged in protected opposition to discrimination or

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that she participated in a proceeding arising out of
discrimination; (2) she was the subject of an adverse
action by her employer subsequent to the protected
activity; and (3) there is a causal connection between her
activities and the adverse action. Robbins v. Jefferson
County School Dist. R–1, 186 F.3d 1253, 1258 (10th
Cir.1999), abrogated on other grounds by Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 (2002);
Archuleta v. Colorado Dept. of Institutions, 936 F.2d
483, 486 (10th Cir.1991). Title VII extends protection
to those who informally voice complaints to their
superiors or who use their employer's internal grievance
procedures. Id.
To prevail on a claim of retaliation, the plaintiff need
not prove the validity of the complaint or grievance
she alleges as the basis for the retaliation. As the Tenth
Circuit Court of Appeals explained in Zinn v. McKune,
143 F.3d 1353 (10th Cir.1998):
“Although the complaint that
triggers the retaliation need not
ultimately be upheld, the plaintiff
must have had a reasonable good
faith belief that defendant was
engaging in discrimination.”
Id. at 1362 (internal citation omitted). Similarly, in
Robbins v. Jefferson County School Dist., the circuit
court held that “a plaintiff does not have to prove the
validity of the grievance she was allegedly punished
for lodging; ‘opposition activity is protected when it is
based on a mistaken good faith belief that Title VII has
been violated.’ “ 186 F.3d at 1258 (quoting Love v. Re/
Max of America, Inc., 738 F.2d 383, 385 (10th Cir.1984).
The plaintiff's complaint does not allege that she
complained of wide-spread gender-based discrimination
in A.G. Edwards' Western Region. Her alleged complaints
were substantially more narrow. See Complaint at ¶¶ 20–
21, 23, 25, 35–36, 56, 63, 69, and 73–74. Consequently, I
agree with the defendant that documents concerning “any
and all” studies conducted by the defendant from 1998 to
the present concerning under-representation of women in
A.G. Edwards' Western Region are neither relevant to the
matters in dispute in this case nor reasonably calculated to
lead to the discovery of admissible evidence.
The Motion to Compel is DENIED with respect to
Interrogatory No. 7.

Interrogatory No. 8 states:
Identify why in the Position Statement, at page 1, did
AGE represent to the EEOC that Ms. Bat “... lodges
personal attacks that are completely unfounded,” and
what investigations, if any, were performed by AGE to
lead or cause it to state that whatever it refers to as
personal attacks were completely unfounded.
The defendant answered the interrogatory as follows:
*6 A.G. Edwards asserted the
referenced statement because it
believed it to be true. Mr.
Hoenninger investigated plaintiff's
personal attacks as reflected in the
documents produced.
The plaintiff complains that the answer is inadequate
because it “refers to unidentified documents, and refuses
to identify what were the ‘personal attacks,’ how it
determined they were unfounded, and any information
about its investigation that allegedly concluded the
unidentified attacks were unfounded.” Motion to
Compel, at ¶ 8.
The interrogatory is poorly framed. Apparently the
plaintiff wanted to know the specifics of the allegedly
unfounded personal attacks referred to in the Position
Statement. She did not ask for that information.
Defendant has answered the interrogatory as posed.
In any event, the defendant's reference to documents
indicates that the details of the investigation are contained
in those documents. Although it would have been a
better practice for the defendant to specify the documents
containing the information, the purpose of Rule 7.1A
is to require the parties to work informally to resolve
misunderstandings of this type. As discussed above, the
plaintiff failed meaningfully to comply the requirements
of Rule 7.1A.
The Motion to Compel is DENIED with respect to
Interrogatory No. 8.
Interrogatory No. 9 asks the defendant to “[i]dentify each
and every fact and document which AGE claims supports
AGE's contention that the decision to terminate Ms.
Bat was non-retaliatory.” The defendant answered the
interrogatory by stating that “[a]ll facts and documents

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in this case demonstrate that AGE did not take any
retaliatory action toward plaintiff. AGE terminated
plaintiff's employment for unsuitable performance.”
Interrogatory No. 9 is an improper blockbuster
interrogatory which is overbroad and unduly burdensome
on its face. Hilt, 170 F.R.D. at 186–87. It also is improper
because it seeks to require the defendant to provide a
narrative account of its case. Hiskett, 180 F.R.D. at
404. Even though the interrogatory is improper and no
response was required, the defendant fully answered it.
The Motion to Compel is DENIED with respect to
Interrogatory No. 9.
Interrogatory No. 10 requested that the defendant:
Identify all policies, procedures and
practices concerning AGE's placing
employees on “probation,” so-called
“Action Plans” or grounds and
procedures for termination of AGE
employees.
The defendant asserted objections but answered the
interrogatory, stating:
A.G. Edwards states that it has no
written policy that applies in all
situations. Employees are at will and
if they do not meet performance
expectations, their employment can
be terminated. With respect to
unsuitable performance, generally,
each department has performance
expectations and will counsel
employees to assist in meeting those
expectations, in some cases with
written plans.
The plaintiff complains that the answer is inadequate,
arguing:
*7 It is incomprehensible that AGE
does not have anything in writing
concerning its procedures, policies
or practices surrounding these
personnel actions. Such information
is important for Ms. Bat, since if
AGE failed to follow its own policies

or procedures in what it actually
or allegedly did to Ms. Bat this is
evidence of retaliation and pretext,
going to the core of this matter.
Motion to Compel, at ¶ 11.
The interrogatory requires the defendant to identify “all
policies” of the defendant concerning probation and
action plans. The defendant responded that it has no
written policy “that applies in all situations.” It is not
clear from the answer whether separate departments or
regions have their own written policies, or whether there
are no written policies at all. The briefing sheds no light
on the issue. This, again, is a matter which could have
been developed and (probably) resolved had the plaintiff
engaged in a meaningful consultation as required by Rule
7 .1A and the Hoelzel decision. Nor would the plaintiff
be entitled to “all policies” under the facts of this case. A
proper request would be limited to those policies which
applied to the plaintiff during the time of her employment.
Rule 7.1A is absolute in its prohibition against considering
the merits of any motion until the parties have conferred
in good faith to resolve the disputed matter. I have found
that the plaintiff failed to meet the requirements of Rule
7.1A.
The Motion to Compel is DENIED with respect to
Interrogatory No. 10.
Interrogatory No. 12 states:
If it is your contention that the
decision to state on the U5 form
that Ms. Bat was terminated for
unsuitable performance has not or
will not affect Ms. Bat's ability
to locate employment with major
brokerage firms, identify all reasons
and facts you claim support your
contention.
The defendant made the following response:
A.G. Edwards objects to this
interrogatory on the grounds that
it lacks sufficient facts to respond
at this time. Depending on jobs
sought, plaintiff may be able

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to perform satisfactorily in a
future position. Subject to this
objection, A.G. Edwards states that
it is obligated to provide truthful
responses on form U–5, which it
did with respect to plaintiff; her
discharge resulted from unsuitable
performance. In addition, the U–
4 form required disclosures for
registration or transfer of license do
not require that terminations for
unsuitable performance not related
to security violation be disclosed.
The objection—that the defendant lacks sufficient
information—is proper. The interrogatory does not seek
facts, but instead requires the defendant to predict the
future and then state the facts upon which it bases its
prediction.
The answer also makes clear that the defendant is making
no contention-either that the plaintiff's termination will or
will not affect her ability to locate employment with major
brokerage firms.
The Motion to Compel is DENIED with respect to
Interrogatory No. 12.
*8 Interrogatory No. 13 required the defendant to
“[i]dentify and describe all communications between the
following persons, or between any of them, which in any
way concerned Ms. Bat: (a) Mark Tulley; (b) Paul Coffee;
(c) Norman Timmins; and (d) Ronald Hoenninger.”
The defendant objected to the interrogatory as overbroad
and unduly burdensome. Notwithstanding its objections,
the defendant produced documents evidencing written
communications relating to the plaintiff's job performance
and made the identified witnesses available for depositions
to testify about oral communications.
This is another example of an improper blockbuster
interrogatory. Hilt, 170 F.R.D. at 187. It is unreasonable
to require a company to identify and describe “all
communications” among four employees about a coemployee, apparently unlimited in time.
I also agree with the defendant that the oral
communications between the employees sought by this

interrogatory are more reasonably obtained through
depositions and not by an interrogatory. As the court
stated in Hilt:
The rules [of civil procedure] provide
for a variety of discovery procedures
to fit the various ways in which
information can best be obtained. In
many instances depositions, rather
than interrogatories, will better
serve the purpose of obtaining
detailed facts.
170 F.R.D. at 187.
The Motion to Compel is DENIED with respect to
Interrogatory No. 13.
Interrogatory No. 15 asked for “any and all reasons
AGE did not allow Ms. Bat to resign her employment
rather than be terminated .” The defendant objected to
the interrogatory, stating: “A.G. Edwards objects to this
interrogatory on the grounds that it assumes plaintiff
offered to resign.”
In the Motion to Compel, the plaintiff argues that “AGE
typically allows its management and professional level
employees who have actual performance issues to resign
in lieu of being terminated .” Motion to Compel, at ¶ 15.
There is no evidence supporting this assertion, however.
Nor is there any evidence that the plaintiff offered to or
was willing to resign.
I agree with the defendant that Interrogatory No. 15
springs from a fact not in evidence—that the plaintiff
offered to or was willing to resign rather than be
terminated—and its objection was proper. Consequently,
the Motion to Compel is DENIED with respect to
Interrogatory No. 15.
Interrogatory No. 16 requested the following information:
Identify all male employees in the
Western Region who from 2000
through the present required leave
time, adjusted schedules or other
accommodations due to serious
personal issues, problems or illness,
and identify in detail how AGE

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accommodated each one of these
males.
The defendant objected to the request:
A.G. Edwards objects to this interrogatory on the
grounds that it is vague and ambiguous as to the
meaning of the terms “leave time,” and “adjusted
schedules,” and “other accommodations,” and “serious
personal issues, problems or illness,” overly broad,
unduly burdensome, and is not reasonably calculated
to lead to the discovery of admissible evidence as it
requests information regarding “all male employees.”
A.G. Edwards further objects to this request on
the grounds that plaintiff does not assert a gender
discrimination claim and the comparison of male versus
female is irrelevant and not reasonably calculated to
lead to the discovery of admissible evidence.
*9 The plaintiff does allege that she was placed on
an action plan based on inadequate performance at
a time when she was experiencing extremely difficult
personal issues in her life, and that male employees
dealing with similar personal problems were given far
more latitude than was the plaintiff. Complaint, at ¶¶
23–25, 35–36, and 56. Consequently, I do not agree
that the information requested is not relevant to the
plaintiff's claim. The allegations of the Complaint indicate
that the plaintiff is aware of specific instances where
men employees were treated differently than was the
plaintiff. For example, paragraph 23 of the Complaint
alleges that the plaintiff experienced her brother's suicide
and a failing marriage, and paragraph 24 alleges that
“[w]hen men went through similar problems, AGE and
Coffee went to great lengths to accommodate their needs.”
Paragraph 36 of the Complaint alleges that the plaintiff
sent a memorandum to Mr. Timmins which, among other
things, “pointed out that her male counterparts were given
far more latitude when they were dealing with personal
problems.” Paragraph 56 of the Complaint alleges that
the plaintiff wrote to Mr. Tulley complaining that the
defendant had discriminated against her by failing to
accommodate her needs resulting from the “suicide death
of her brother, domestic violence, criminal proceedings
against her husband, and the dissolution of her marriage,”
despite its “history of accommodating male employees
who had personal problems.”

Although the interrogatory might have been properly
framed had it asked for specific information about specific
male employees alleged to have been treated differently
under hardships similar to those experienced by the
plaintiff, or the interrogatory might have been narrowed
in the course of a meaningful Rule 7.1A conference, it
is improperly overbroad and unduly burdensome in its
current form.
The Motion to Compel is DENIED with respect to
Interrogatory No. 16.
Interrogatory No. 17 states:
If you are contending that with
regard to any male employee in the
Western Region from 2000 through
the present that you placed any
male employee on probation or on
Action Plans or terminated any male
employee during any period of time
when any male employee required
leave time, adjusted schedules or
other accommodations due to
serious personal issues, problems
or illness, identify each such male
employee and all documents you
claim support your contention.
Interrogatory No. 17 is objectionable for the same reasons
as is Interrogatory No. 16, and the Motion to Compel is
DENIED with respect it.
Interrogatory No. 18 requests:
Identify each male employee in
the Western Region who was
involuntarily separated by AGE
from 2000 through the present, and
identify for each such employee
what AGE indicated on each of
their U5s concerning the reasons for
separation from employment.
The defendant objected:
A.G. Edwards objects to this
interrogatory on the grounds that it
is overly broad in time and scope,
unduly burdensome, seeks irrelevant

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documents, and is not reasonably
calculated to lead to the discovery of
admissible evidence. A.G. Edwards
further objects to this request on
the grounds that plaintiff does
not assert a gender discrimination
claim and this comparison of male
versus female is irrelevant and not
reasonably calculated to lead to the
discovery of admissible evidence.
*10 The Complaint has a single allegation concerning
gender-based distinctions in connection with the basis for
terminations reported by the defendant on U–5 forms.
Specifically, at paragraph 90, the plaintiff alleges, “on
information and belief,” that the defendant “found ways
to avoid such condemning statements for male employees
who it fired, but not for Ms. Bat....”
The defendant's objection to the interrogatory as
overbroad “in time and scope” is proper. It should be
limited to male employees subject to the U–5 reporting
requirements, and it should be limited in time to a period
reasonably related to the time of the plaintiff's termination
in July 2003. These limitations could easily have been
accomplished if the plaintiff had meaningfully complied
with the requirements of Rule 7.1A. She did not.
The Motion to Compel is DENIED with respect to
Interrogatory No. 18.
Interrogatory No. 19 required the defendant to “[i]dentify
the authors and everyone who provided input as to the
content of each written communication from AGE to
Ms. Bat from June 2002 through June 2003, specifying
in detail who authored and provided input in each such
communication.”
The defendant objected to the request as overbroad
and unduly burdensome, but then responded that “the
documents generally reflect an author and in response to
Interrogatory No. 1 above, A.G. Edwards has identified
the handwriting on various documents as requested.”
In her Motion to Compel, the plaintiff argues without
evidentiary support that:
Timmins, Ms. Bat's direct report,
admitted to Ms. Bat that he did not

author substantial documentation
critical of Ms. Bat's performance,
such as the Action Plans and
Ms. Bat's final performance review,
though these documents purported
to be authored by him. It is also
clear that Tulley and Hoenninger
were drafting and contributing to
the content of these Action Plans,
performance reviews and emails
to Ms. Bat in response to her
complaints and concerns.
Asking the identity of every person who provided input
into “each written communication from AGE to Ms.
Bat” spanning one year's time is another example of
an improper blockbuster interrogatory indiscriminately
seeking information about every conceivable detail. It
reflects discovery written without the exercise of any
professional judgment or prioritization. If the plaintiff had
narrowed her request to information about the documents
whose authorship is important, such as the action plans,
final performance review, and e-mails sent to Ms. Bat in
response to her complaints, a response would have been
required. The plaintiff's blockbuster request is improper
and the defendant's objections were appropriate.
The Motion to Compel is DENIED with respect to
Interrogatory No. 19.
Requests for Production of Documents: The plaintiff served
20 requests for production of documents on the defendant.
She now moves to compel with respect to 18 of the 20
production requests.
*11 With respect to five of the production requests—
Nos. 5, 6, 7, 11, and 16—the defendant has stated that
the responsive documents have been or will be produced.
Any misunderstanding about whether the documents
have been produced; or which documents the defendant
contends are responsive to a particular request; or when
and where additional documents will be produced should
have been worked out in a conference pursuant to Rule
7.1A. The plaintiff failed to comply with the requirements
of that rule. Consequently, the Motion to Compel is
DENIED with respect to Requests for Production Nos. 5,
6, 7, 11, and 16.

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Bat v. A.G. Edwards & Sons, Inc., Not Reported in F.Supp.2d (2005)
2005 WL 6776838

Five of the production requests—Nos. 3, 4, 18, 19,
and 20—are blockbuster requests which are overbroad
and unduly burdensome on their face. For example,
Request for Production No. 3 commands the production
of “all of AGE's document retention, destruction and
fabrication policies from 2000 through the present.” The
request is relevant, if at all, only in connection with
the collateral issue of whether the defendant “fabricated
documents it provided to the EEOC in support of its
alleged defenses....” Motion to Compel at p. 10. The
request appears to seek irrelevant information. Even if
it were determined to be relevant, only the policies of
the defendant (if any exist) concerning the fabrication of
documents at the time of the EEOC response would be
appropriate.
Similarly, Request for Production No. 4 requests the
following:
If AGE provided any training
or education to its employees
concerning the requirements of
the Sarbanes–Oxley Act since its
passage, produce all such training
and education materials.
The plaintiff argues that the request is relevant because
“it appears that Timmins, Tulley, Hoenninger and
AGE's in-counsel [sic] violated the part of this statute
criminalizing the fabrication of documents provided to
investigating federal agencies....” Motion to Compel, at
p. 10. The request is not reasonably tailored to seek the
information that the plaintiff really would need—e.g.,
the training provided to Timmins, Tulley, Hoenninger,
and the particular in-house counsel allegedly involved on
fabrication of documents.
Request for Production No. 18 seeks “all emails
concerning Ms. Bat”; Request No. 19 requests “all Action
Plans for all AGE employees in the Western Region for
2002 and 2003”; and Production Request No. 20 calls
for the production of “all drafts and other versions of
each written communication from AGE to Ms. Bat or
concerning Ms. Bat in 2002 and 2003.” A party is entitled
to reasonable, relevant discovery. The indiscriminate use
of blockbuster production requests, such as these, calling
for all possible information impose undue burden, cost,
and delay, and are objectionable. Hilt, 170 F.R.D. at 186–
87.

The Motion to Compel is DENIED with respect to
Requests for Production Nos. 3, 4, 18, 19, and 20.
The remaining production requests at issue—Nos. 2,
8, 10, 12, 13, 14, 15, and 17—were objected to
for various reasons. In some instances less than all
requested documents were produced; in other instances,
the defendant refused to produce any documents at all.
I do not know whether some or all of these problems
could have been resolved by the lawyers absent court
intervention because the plaintiff failed meaningfully to
meet and confer about the problems. Rule 7.1A requires
such an effort.
*12 The Motion to Compel is DENIED with respect to
Requests for Production No. 2, 8, 10, 12, 13, 14, 15, and
17, based on the plaintiff's failure to comply with Rule
7.1A.
Requests for Admissions: The plaintiff moves to compel
with respect to nine of the 13 requests for admissions
served. In four instances—Admission Requests Nos. 2,
3, 4, and 7—the defendant either admitted or denied the
requests. As to them, the Motion to Compel is DENIED.
With respect to the other five requests at issue—Nos. 6,
9, 10, 11, and 12—the defendant objected to the requests
for various reasons, most often because certain terms in
the request were not adequately defined. Whether the
objections could have been resolved through a conference
is unknown because the plaintiff failed to comply with
the requirements of Rule 7.1A. The Motion to Compel is
therefore DENIED as to Requests No. 6, 9, 10, 11, and 12.
Rule 37(a)(4), Fed.R.Civ.P., provides that if a motion
to compel is denied a court may, “after affording an
opportunity to be heard, require the moving party or
the attorney filing the motion or both of them to pay
to the party ... who opposed the motion the reasonable
expenses in opposing the motion, including attorney's
fees....” I will consider awarding the defendant its costs
and attorney's fees in opposing the Motion to Compel if
it files a motion seeking such an award, supported by an
appropriate affidavit and detailed, contemporaneous time
records.

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Bat v. A.G. Edwards & Sons, Inc., Not Reported in F.Supp.2d (2005)
2005 WL 6776838

All Citations
Not Reported in F.Supp.2d, 2005 WL 6776838
End of Document

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

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

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